Session 3

Jimmy Weiner

The Western Desert Model: Native title dilemmas at the edge of a culture bloc

In Western Australia, I believe an argument can be made that there has been for some time now a "two-tiered" State assessment process: One for native title claims originating in the identifiably "Western Desert Cultural Bloc", and another for those originating elsewhere. As a result of previous Federal Court native title cases, notably Wongatha and DeRose, the existence of a single uniform "Western Desert Society" has been accepted by the State of WA. New claims originating from the heart of this area are thus spared the burden of proving the existence of a "society" from whence derives the claimants' rights and interests in the claim area in any given instance. Claims from outside the Western Desert area, on the other hand, must continue to prove the existence of such a "society".

This two-tiered process is ethnographically indefensible for a number of reasons which Jimmy discusses in this presentation.

Dr James "Jimmy" Weiner received his PhD in anthropology from ANU in 1984 and has spent over three years in Papua New Guinea with the Foi people of the Southern Highlands Province, whose language he speaks. He has written four books on the Foi, including The Empty Place (1991), a study of the cultural relationship of the Foi to their land and territory, and has edited and co-edited three others including the volumes Emplaced Myth (2001) and Mining and Indigenous Lifeworlds in Australia and Papua New Guinea (2004), both along with Alan Rumsey. He is the co-editor with Dr. Katie Glaskin of Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives (ANU E-Press, 2006).

Jimmy was recently Leverhulme Trust Professor of Anthropology at the University of St. Andrews, Scotland (2008-2010). He has guest lectured at the Centre for Energy and Mineral Law and Policy at the University of Dundee and at the University of Technology, Lae, Papua New Guinea. Currently, Jimmy is a Fellow with the Resource Management in Asia-Pacific Project at ANU.

Daniel Vachon

"Uncertain, unpredictable and arbitrary": The accommodation of Western Desert land tenure and the recognition of 'native title' rights

Following his research in 1930, A. P. Elkin was the first to identify what he called a 'fortuitous' or 'local' principle in establishing an individual's 'country' among the Aluridja, now commonly known as Western Desert peoples. The Berndts' early work at Ooldea led them to agree that a person's place of birth, modified by patrilocal residence, was a key avenue in this regard. Since then, native title researchers have eschewed models featuring local descent groups in the Western Desert and instead found flexibility in a number of fortuitous 'pathways' by which a individual can assert rights and interests in country. For state governments wanting certainty and for anthropologists having to deal with claim groups formed on the single basis of real or fictive descent from apical ancestors, Western Desert laws and customs present challenges. In this presentation, we examine how the so-called flexible nature of Western Desert land tenure has been accommodated (or not) in WA consent determinations and Federal Court decisions, and what are the implications of the operation of these laws and customs for the future management of native title land.

Dr Daniel Vachon was born in Windsor, Ontario and has lived in Australia for thirty-five years. He has a Master s Degree and a PhD in anthropology. His early work in Australia began with doctoral research in the northwest of South Australia in the late 1970s, followed by five years working as an anthropologist with the Pitjantjatjara Council. Since 1985 he has worked as a consultant anthropologist engaged principally in land claim research in several regions of Aboriginal Australia; namely, the Southern Arrernte lands (Northern Territory), throughout the Kimberley, the Pilbara, the WA Goldfields, the Great Sandy Desert and the Lakes Region of South Australia. For the past fifteen years he has been engaged as an anthropological expert in native title claims in Western and South Australia.

Dr Vachon has co-authored a book and wrote the autobiography of Yami Lester. His published articles detail aspects of Aboriginal social organisation and customary land tenure, address issues associated with land rights legislation, and examine the nature of anthropological practice in Australia. He is currently completing a book on the rainmakers and serpents of the Great Sandy Desert.

Sandra Pannell

Beyond the 'Descent of Rights': The recognition of other forms of Indigenous 'rights' in the context of native title consent determinations

Focusing upon an example from the rainforest region of Far North Queensland, and using material from elsewhere in Australia, in this presentation I discuss the ethnography behind the legal concept of 'permissive use', identified by Finn J in the 2010 Akiba judgement. I also look at the way in which so-called  permissive use rights have been variously acknowledged in the context of native title consent determinations, and how this recognition is often used as a means of resolving contestation between parties to a native title claim.

Dr Sandra Pannell has a doctorate in anthropology from the University of Adelaide and she currently works as a private practice anthropologist in the field of native title and cultural heritage research. She has held lecturing and research positions at the University of Adelaide, James Cook University, the Centre for Resource and Environmental Studies at The Australian National University, and at the Rainforest Cooperative Research Centre in Cairns. She has undertaken anthropological research in Indonesia, Timor-Leste, and throughout Aboriginal Australia. Sandra Pannell is the author of two books, one on World Heritage and the other on an Indigenous environmental history of North Queensland. She is also the editor of a book on violence, society and the state in Indonesian and the co-editor of two publications  one on resource management in eastern Indonesia and the other on Indigenous planning in northern Australia. She is the author of a number of articles on kinship, intellectual property rights, native title, resource management and marine tenure.