Anthropologists, Historians and Land Claims

(Introductory address presented to Native Title session of the Australian Historical Association Annual Conference, Sydney University, July 1988)

Rod Hagen

It is, perhaps, somwhat paradoxical that historians have until recently played a comparatively minor role in the course of the court proceedings related to "land rights" that began with the Gove Case in 1967 and which have proceeded in various places since.

In the witness lists of the scores of reports of the various Aboriginal Land Commissioners operating under the Aboriginal Land Rights Act (NT) one will find anthropologists and linguists aplenty, aided perhaps by the occasional geographer or sociologist. I am only able to think however of two historians who have given evidence in the course of these claims - John Spierings, who produced extensive written materials in the course of the Ti Tree Land Claim, and Dick Kimber, who has given a small amount of oral and written evidence in the course of some other central Australian claims. If there are others, I apologise for omitting them, but the point remains that evidence from historians had been seen to be of little significance in Australia's largest legal arena for land rights prior to the Mabo decision and the passage of the Native Title Act.

This is not to say that historical evidence has been completely ignored. Almost all "claim books" prepared under the Aboriginal Land Rights Act (NT) contain an "historical" section, usually written by an anthropologist or linguist with historical interests and perhaps some training in the discipline, but whose primary focus lies elsewhere. It is usually complemented by evidence from claimants themselves about their own lives, and those of their forebears. As such, Northern Territory Aboriginal Land Rights Act claim documents and transcripts can provide a wealth of material for anyone interested in the history of the region (and anyone looking for a good doctroral topic probably need look no further), but historical evidence has had little significance in terms of the success or otherwise of the claims concerned.

I do not, of course, mean to suggest that history has no place in Land Claims, or that historians have been backward in coming forward in situations involving the interests of indigenous Australians .  The reason for their absence in the NT cases is quite a simple one. The Aboriginal Land Rights Act (NT) simply leaves little room for evidence of the type which they may qualified to give. It is focuses on the present - on contemporary spiritual affiliations, on contemporary indigenous groupings, on the satisfaction of a series of criteria which leave little room for an examination of earlier times or indeed of past injustices.

Anthropologists (myself included)  have  on occasion been criticised by lawyers in such cases, perhaps rightly so, for attempting to ensure that the historical context of such claims is adequately put before the judge.  Quite frequently  one will find that any historical materials provided are simply ignored by all parties, with no oral examination or cross examination of their content and no mention made of them in the lawyers final addresses.


Mabo, Wik and the Native Title Act have changed all that. While there continues to be strenuous debate in legal circles and the courts about the extent of the need to demonstrate chains of continuity, and about the extent of allowable social change before Justice Brennan's "tide of history" can be said to have "washed away" indigenous interests, fundamentally the establishment of Native Title places substantial stress on the proof of history.

Although no historians were called to give evidence in the historic Mabo judgement, historical materials played a critical role in the case. By the time of Wik the involvement of professional historians had become a reality and the work of Henry Reynolds and others was absolutely fundamental in its determination.

Although I began working on indigenous land claims in 1975, it was not until 1996, in the course of the Yorta Yorta Land claim, the first contested Native Title claim before the federal court, that I encountered an historian engaged by the opponents of a claim.

My experiences in the course of this claim, as the person who prepared both the primary anthropological and historical materials for the indigenous applicants, lead me to believe that both historians and anthropologists confront substantial challenges in dealing with the rules of the Native Title era.


Some anthropologists, it seems to me, suffer from a fear of history. The discipline spent many years trying to shed its connection with 19th century views on social evolution and attempts to locate human societies on scales of primitiveness or elevation that probably owed as much to biblical notions of the ascent or descent of man and the fate of the lost tribes of Israel as they did to any real understanding of society.

Partly because of this, many anthropologists have always had some difficulty dealing with matters of social change. They have either sought to elucidate some pristine past - dismissing the impact and implications of colonialism as events which should be seen as simply contaminating the data concerning the "real" nature of the societies which they have studied, or they have sought to live solely in the present, ernestly concentrating on the present and dismissing as "unscientific" materials which relate to earlier days of the same community.

Some, of course , have recognised the traps implicit in either of these approaches, but, despite this one finds few serious accounts of indigenous Australian societies which effectively examine the processes by which contemporary communities have developed from those of pre-contact days. And yet this process, of course, lies at the heart of any attempt to establish the connections between pre-colonial and contemporary custom and tradition necessary for the establishment of native title.

Many of the accounts of such matters which anthropologists turned their hand to during the assimilation era were couched in simplistic terms of "cultural breakdown", or "social decay". Interestingly, interpretations of this kind seem to have been making a comeback in the 1990's, in the hands of anthropologists engaged by opponents of Native Title claims. Anthropologists engaged by opponents of Native Title claims have relied heavily on such materials in the course of their evidence.

Much more developed and interesting examinations of such issues have however been developed by anthropologists such as  Deborah Rose, Peter Sutton, and Ian Keen . Historians involved in the native title claims would be well advised to become familiar with their works.


One of the major difficulties which emerges in developing effective interpretations of such processes of change is the general absence of analysis, or even examination, of substantial quantities of relevant archival materials, including both the official records of earlier days, and the notes and correspondence of many of the earlier ethnographers.

Another problem is the absence of any critical examination of the context in which a great deal of 19th century ethnography and early twentieth century anthropology was undertaken. While Elkin and Barwick, for example, have made passing comment on writers such as Howitt, Mathews, Curr and Smyth, the intense level of scrutiny which occurs in Native Title proceedings suggests the need for much more developed examination.

Russell McGregor's wonderful "Imagined Destinies" demonstrates how effective historians can be in undertaking such tasks.

Historians, I suspect, will have much to offer in developing an adequate understanding of such matters.


In any interdisciplinary exercise, one of the difficulties which those "crossing the divide" face involves developing an understanding of those matters which are taken for granted in the other discipline. It is all too easy, perhaps on the basis of the reading of introductory texts or particular locally relevant articles, to assume that particular propositions are generally accepted.

Practitioners from other disciplines, not only historians but geographers, linguists and archaeologists as well, often accept without quibble particular interpretations of social organisation which are the subject of major debate in anthropological circles.

Two particular issues stand out. Firstly there is the question of the validity of the grand "territory mapping" exercises of writers such as Tindale and Davis on a national level, and by Barwick and Clark in Victoria.

I have worked extensively on land related issues since 1975 in the Northern Territory, South Australia , NSW and Victoria and I have yet to find a  situation in which an intensive examination of territorial interests in the area concerned confirms the boundaries shown on such maps at a level of accuracy appropriate to the demands of a land claim. On some occasions the differences may be simply a matter of a few kilometres, in others it may be tens , or even hundreds of kilometres. Sometimes even the names of groups identified may be extremely dubious. Often the names provided upon them may be simply one of many alternatives. Often groups with quite distinctive identities will be combined or broader groupings will be ignored. Often the notion of a "hard boundary" between groups itself will be highly supsect.

The consequences of this can permeate many aspects of the land claim process. I regularly read articles and reports from historians , geographers, and archaeologists in which the identity of particular individuals or groups is assumed simply on the basis of a glance at Tindale's or Clark's maps. Local histories particularly are redolent with such problems. The prominent Victorian 19th century artist , Tommy McCrae, for example, will be identified as "Pangerang" by one author because they were writing after the publication of Tindale's earliest mapping attempt, "Kwat Kwat", by another, because they have seen his 1974 magnum opus , or "Waveroo" by someone who has come into contact with Diane Barwick's "Mapping the Past" or perhaps geographer Ian Clark's  derivative discussion of the same area in his ambitious but ill-considered "Aboriginal Languages and Clans."

All too often such discussions will then lead into a "potted ethnography" of the group with the name which the author has fastened upon, and we will be regaled with tales of a social system which seems to have more in common with Berndt in the Western Desert or Elkin in Arnhem Land than with what we know of indigenous people in Victoria!

Materials of this kind result in the expenditure of a great deal of extremely valuable time and effort by those involved in the claim process. It becomes necessary to establish the sources of information which the author used to establish group identity, all too often unacknowledged or ambiguous. The same source is likely to have been used by others in a similar fashion, and these documents in turn become the source of further documents and so forth building a self re-inforcing picture of apparent documentary certainty in a situation where none is justified, quite independently of any indigenous understanding of the matter. Historians, I'm sure , are all to well aware of such processes.

The grand territorial constructions should be treated with great caution by historians involved in Native Title processes. Certainly , they can be a very useful source of primary references. Certainly they may provide a useful starting point for further work, but they are no where near reliable enough to provide a definitive answer to questions of past or present territorial interests.

Secondly there are the fundamental questions of the nature and constitution of indigenous territorial groups. Many people with a passing acquaintance with the anthropological literature assume that it is generally agreed that indigenous interests in land can be safely assumed to follow a more or less clear cut division into a cellular structure made up of things called "clans", each of which is associated with a clear cut piece of territory called an "estate", which in turn can perhaps be aggregated into something called a "tribe" or "language group". This vision derives in a large measure from the views of Radcliffe Brown, working in Western Australia in the early part of this century, and further developed by writers such as Stanner and Berndt in the 1950's and 60's.

In fact, this issue has been the subject of very substantial debate amongst anthropologists during the last three decades. It has been the subject of extensive examination in the course many land claim hearings, from the 1969 Gove case to the latest Native Title claims such as the Yorta Yorta case. While there are some anthropologists who see "clans" as a fundamental unit of indigenous social organisation throughout the continent, there are many who questions their relevance outside of strictly defined parameters. "Clans" , for example, were clearly never simple residential or economic units. The evidence throughout the continent clearly indicates that the groups in which people lived and provided for themselves were more complexly structured. Their primary focus, it is widely accepted, involved ritual rather than economic or social spheres of life (although the two of course cannot be neatly or simply separated).

Furthermore it is clear that there were substantial differences in different parts of the continent. While something approximating the traditional anthropological cell like structure certainly has some appearance of reality in some of the better watered parts of the north, the situation in the extreme desert areas and in south eastern Australia seems to have been quite different, the activities of the Victorian "clan mappers" notwithstanding.

Finally, it is clear that everywhere, even where "clans" may have some meaningful reality, the networks of inter-relationships forged by kinship, marriage, economic circumstance and mythology resulted in other important levels of integration.

The extent of consensus about such matters amongst anthropologists today can perhaps be summarised in the following way:

1) Throughout Australia, Aboriginal people at the time of first contact possessed extensive laws and customs relating to the land, and to the use of the resources of the land.

2) These laws and customs provided for the maintenance of both spiritual responsibilities and the right to occupy and use the resources of the land.

3) Even in pre-contact situations, Aboriginal society was not static.

4) Descent (whether patrilineal, matrilineal, ambilineal or otherwise) played a significant part in the determination of ritual group membership. Rights to use of resources and residence however are more broadly drawn. While the passage of rights from parent to child almost invariably occurs, economic rights tend to revolve around broader, more varied kin groups.

5) The need to accommodate changes resulting from the non-aboriginal occupation of Australia has lead to Aboriginal communities introducing modifications to these laws and traditions in most, if not all, situations.

6) In the longer settled, more densely populated areas, Aboriginal communities have generally decreased emphasis on "narrow" local group structures and increased emphasis on "broad" group identification.

7)  The debate which continues on such matters primarily concerns the extent or otherwise to which these broader groups are manifestations of post-contact adaptations of law and custom or simply continuations of pre-contact life. Those who have supported "narrower" models of "clan" or "band" membership in recent years have explained the extensive empirical evidence of broader land-using groups in the present day by suggesting that they are artefacts of the post-contact situation. Those who support "broader" models point to a variety of materials indicating extensive interaction even in the early days of contact, and to the generally acknowledged importance of structural connections which cannor be explained in "clan" terms alone.

While it is, of course, unrealistic to expect practitioners in other disciplines to pursue such issues with the vigour or interest which anthropologists might display, it is important that historians be aware that they cannot simply assume that territorial interests are a simple as they might have been lead to believe in a first year anthropology course unit or from the reading of an introductory text on the matter.

An interesting feature of the amendments to the Native Title Bill currently before the Senate is that it may, in fact make "narrow group" claims to land much less likely in the future. Potential limitations on overlapping claims mean that indigenous groups will have to ensure that all possible types of indigenous interest in a particular area are integrated into any claim which may be made. This will inevitably mean that claims will be brought on a broad rather than narrow basis wherever possible..

This may have results different to those intended by the current legislators. In the Yorta Yorta claim, for example, those opposing the claim sought to place great stress on a supposed "clan" levels of social organisation, seeking thereby to increase the extent to which the destruction of "narrow groups" associated with particular sub areas could be seen to have extinguished title in those places. The general presentation of claims on broader basis is likely to make such arguments hard to sustain.


I might conclude with some observations about the treatment of the materials of one of the pioneers of ethnohistory in Australia, Dr Diane Barwick, in the course of the Yorta Yorta claim. In the course of the claim the two anthropologists called by the opponents of the claim sought to suggest that her work indicated that indigenous culture was dead and buried in Victoria and that contemporary indigenous communities were little different to the communities of poor rural whites.

An historian called by the Victorian Government made selective use of unpublished, half worked drafts of an unpublished article by Barwick in an attempt to maintain an assertion of major social discontinuity in social organisation between people in different parts of the Yorta Yorta claim area.

Any reasonable reading of Barwick's materials in toto supports none of these propositions and I suspect Dr Barwick must be turning in her grave at the thought that they could be interpreted in this fashion in a matter involving the real interests of people who had been so close to her heart.

Which brings me to my final point. Now that the discipline of history has been overtaken by the "Land Rights Era" it is critically important that practitioners realise that what they write today, and equally importantly , what they wrote yesterday, whether they themselves are directly involved in Native Title proceedings or not, may well find its way into processes which affect the real interests of real people, far removed from the intellectual debates and comparative comfort of academia. The effect of such awareness cannot I suspect be anything other than salutary for any discipline. In anthropology it has led, I believe, to a far better understanding of indigenous social organisation and interests in land. In your own discipline, I suspect , it will provide the development of an understanding of the relationship between contemporary and pre-colonial indigenous societies with a substantial shove in the right direction.

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