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...the depth of Aboriginal recall is relevant to the native title demand that judge, as fact finder, will determine the extent to which the current practices of the applicants in a native title case relate to the practices of their forebears at sovereignty.
More particularly, on the authority of Yorta Yorta (HC) as set out in Yulara (FC) at 192, the native title requirements are that:
* The claimed native title rights and interests had their origin in the body of norms or the normative system that existed before sovereignty;
* The laws and customs of the indigenous people that existed at sovereignty constituted a body of normative rules that could give rise (and did give rise) to interests in land; and
* The pre-sovereignty normative system has had a continuous existence and vitality since sovereignty.
There is a further stipulation. In the recent Yulara Native Title Compensation Claim ('Yulara', 2006), the trial judge remarked how, in their submissions, counsel for the Commonwealth had pointed out that: '... trial Judges dealing with native title claims in this [the Federal] Court have consistently stated that what really matters in such cases is the evidence of the Aboriginal claimants: Yarmirr v Northern Territory (1998) 82 FCR 533 ... at 562, per Olney J; De Rose (FCA), at [342], [351], per O'Loughlin J.' (2)
On anthropological grounds, I arrive at a contrary proposition. Trends of cultural practice disqualify any Aboriginal witnessing on the three scores listed above. Of itself, widespread Aboriginal tradition limits recall of traditional practice. Emplaced traditions work, furthermore, to eliminate all memory of any historical departures from once-established norms. The consequence is that credible information about anything but the personally witnessed past cannot be rendered up by the Aboriginal testator who has not had recourse to records. If proof of the continuity or discontinuity of tradition from the time of sovereignty is to be supplied, the court has no choice but to rely on those devices for the remembering, preserving or retrieving the past that have been imported into Australia since settlement. Proof (if any proof there be) is to be gained by recourse to records and/or expert opinion. Where the depth and constancy of traditional observance is at issue, evidence other than the evidence provided by Aboriginal claimants is the evidence that must count.
To support my announced contention, I have to document three things:
(i) The Aboriginal relegation of the past (that is, the institution of short cultural memory);
(ii) The suppression or 'masking' or 'editing' of any histories of unconformity (that is, the elimination of accounts of irregularity from the record) and
(iii) Calculation of the onset of 'time immemorial'.
Stark documentation is my primary aim. And this is so because of the peculiar demands of the judicial process. When hearing a native title case, the trial judge will have most narrow concerns. Judicial focus must be on the case in hand, that case and nothing but determination of the facts in the particular matter that is before the court. Ordinarily, judges do not want to hear about the trends of regional ethnography. Rather, they look for evidence of local practice. From applicants and others, the evidence to be elicited concerns practice and observance (contemporary or historical) in that local and particular 'community of native title holders' to which the applicants belong.
Judges also curb flights of anthropological interpretation. They are apt to do so for two reasons. In the first place, the interpretations of anthropologists nearly always go way beyond the necessary facts that a judge will be required to find. Secondly (anthropology being what it is), interpretations will often be derived from comparisons. The expert may thus invite the court to move between Africa (segmentary lineage systems), the Amazon (dialectic hunter-gatherer tribes) and Afghanistan (parallel cousin marriage) before homing back to that delimited and relevant bit of Australian countryside that is under claim.
I now cite a caution delivered from the bench during a recent hearing. As counsel (for a respondent party) rose to introduce his expert anthropologist, the judge was moved to intervene and say: 'When you lead this witness ... the court does not want to be taken on a Cook's tour.' The judge had read the expert's report and had noted its trends. Responding to objections entered earlier on, he had already struck out those portions of the anthropologist's report deemed inadmissible on various grounds. My point is that (whether presented in oral or in written form) expert opinion is admitted into evidence only to the extent that the expert works within the circumscribed and narrow focus that a court defines in consideration of each particular case.
In native title matters, it is right to say that the court is concerned only with the quiddities of local 'traditions acknowledged' and local 'customs observed'. This is why I deal first and foremost with reported quiddities of limited recall and with significant registration of the suppression of history in Aboriginal societies and cultures. But there has to be more. An unreclaimed anthropologist, I am impelled to go beyond the mere reporting of actualities (things Aboriginal that are 'acknowledged' and 'observed' but are rendered up as just-so artefacts because their raison d'etre has been left out of the accounting). In brief passages of commentary that have no forensic import but function instead to locate my discourse in anthropology, I propose some answers to the 'Why?' question that the curious must be provoked to ask in response to the teasing ethnography. (And please note: my excursions into anthropological explanation are separated out and tagged; they can be jumped over and wholly ignored by the reader whose concern is with quiddities alone.) So, why the social impulsion to curb memory and establish arrangements that promote cultural amnesia (3)--a traditionally required and precipitant onset of temps perdu?
This essay is written to make a general case. However, there are problems concerning differences between Aboriginal societies and cultures to be acknowledged and dealt with at the outset. For present purposes, it is sufficient to divide Australia into three distinct provinces. The Great Western Desert is to be set apart as a land of privation and extremes. In this desert, the Aboriginal response was to develop patterns of extensive, long-range nomadism together with 'flexible' and permissive tenurial arrangements that gave each person rights of visitation and use in a suite of 'countries'. In the tropical north-east, the Cape York Peninsula is a narrow land with a constricted interior but a coastline of great length. Peninsular geography encourages a mode of exploitation that combines littoral, marine, riparian and landed resources to make Cape York a tropic of varied, plentiful and nutritious dietary options. As Chase and Sutton explain, this land of plenty has evoked a special pattern of land-use that may not qualify as nomadism at all. There are 'small-scale movements in small domains where nearly all resources (both physical and social) are usually within a day's travel' (Chase and Sutton, 1981: 1849). Semi-sedentary, the people of Cape York were, perhaps, 'forayers' rather than nomads (Chase and Sutton, ibid.)
With The Great Western Desert and Cape York established as exceptions on ecological grounds, the great residue (including Tasmania) is to be treated as middle Australia. Middle Australia contains lands in which the distribution of languages and dialects corresponds with the differentiation of territories whether at the local level or at the level of more inclusive groupings. In some places, both the 'tribal' language-country and component clan estates have tongues of their own (Rumsey, 1993). Ideologically considered, linguistic identities and landed association are aspects of one another in middle Australia because, place by place, named Dreamings have deposited separate tongues in each of the distinguished countries (Merlan, 1981). In contrast, a single language is spoken by Western Desert peoples and although evanescent speech varieties emerge within it, these are unstable. In the Western Desert, differences between styles of speaking are recognised but ways of speaking do not signal land ownership by unequivocally linking speakers (or language-owners) to locales.
Before colonization, the Cape York Peninsula was a land of some forty-five distinct tongues. These, in turn, were sub-divided into dialects and the people were notably polyglot. For this great peninsula divided into a myriad of pocket estates, Chase and Sutton (1981:1820) warn against 'identifying "tribes" in terms of language names' so as to avoid any 'attendant confusion of social groups, breeding isolates, language or dialect areas and polylingual speech communities'. In this province, it is best to focus on the individual estate with its semi-sedentary inhabitants whose contained and estate-bound pattern of land use and occupancy of itself proclaims their ownership of what, for them, is quite evidently home ground. Elsewhere in Australia, ownership of any local estate has to be reconciled with the nomad's permitted, legitimate and ranging access to estates owned by allies with the consequence that patterns of land use cannot match and thereby attest directly to the mosaic of possession. (4) It then becomes necessary to distinguish between permitted range and owned estate and to establish, for each given area, how people manage the relationship between the two (see Stanner, 1965).
HISTORY AND ORALITY
Preliminaries aside, the first point I have to make is that the ways of treating the past to be documented here belong to the Australia of the original inhabitants as highly particular conventions and productions. In making this announcement, I am replying to a barrister who stood up in court to tell the judge that brief genealogical recall is, of course, something naturally to be expected in oral cultures everywhere. What else? To this counsel it was obvious that pre-literacy renders up no record. In the context of particular litigation, his erroneous proposition went unopposed.
Now Aboriginal genealogies are shallow--Professor Annette Hamilton says 'notoriously shallow'--for people tend to remember ancestors only as far back as their grandparents and may, in addition, perhaps, recall a single great-grandparent out of eight. In Australia, court proceedings during both native title and ALRA (5) cases are affected by the Aboriginal ban on recalling the names of the dead, especially the recently dead. This ban, too, is a relegation of memory of predecessors. Nor is brief recall of past generations a typical feature of oral cultures the world over.
Vansina (1966) documents the Kingdoms of the Savannah in West Africa where remembrancers called griots recite the generations of the kings and nobles way back in time to the origin of kingdoms and to the founding of noble houses. Among egalitarian peoples with no ruling chiefs or kings, both the Nuer of the Sudan (Evans-Pritchard, 1940) and the camel-herding Bedouin of Cyrenaica (Peters, 1990) have genealogies that incorporate whole tribes and stretch back twelve to fifteen generations and more. (6) Bacon (1952) surveyed the widespread distribution of such embracing 'tribal-genealogical' forms of social organization in Eurasia and proposed that the 'tribal-genealogical' form of social organization should be called obok after one of its particular Eurasian manifestations. And I note that Genghis Khan grew up in an obok context, an embracing lineage system out of which he emerged to launch his campaigns of looting and predatory expansion.
My initial point is that particular orders of genealogical recall are integral to local social arrangements. In some oral cultures, long generational lines are required to produce the group-structures and regional frameworks for social and political action. If we turn to Australian instances, we will find that shallow genealogies are but one aspect of a temporality that is constructed according to Australian rules. Aboriginal people jokingly remark that while the rest of the world may run on G.M.T., they operate on A.M.T., characterizing Aboriginal Mean Time as a temporality that, in its distinctiveness, is their very own. The job for the anthropologist is then to describe those Aboriginal conventions that put processes in motion that work to determine the cultural construction of the present in relation to the past.
THE PRECEDENCE OF PLACE OVER TIME
In a set of essays that overlap and are best read as palimpsest, Morphy (1990, 1993 and 1995) has addressed both the peculiar construction of time and the revisionist treatment of history that belongs to the Yolngu of East Arnhem Land. And Morphy's (1995:188) governing notion is forthrightly stated: 'Place has precedence over time in Yolngu ontology'. He has enlarged as follows:
Landscape and myth are ... machines for the suppression of history. The place names refer to ancestral action when the form of the earth was set for ever. The names signify the spiritual force that lies beneath the surface of the earth and that has the capacity to produce the present in the form of the past, to enable new trees to grow, new people to be born, yet new names and ceremonies reunite the new with the old, blurring distinctions and collapsing generations. As I have shown elsewhere (Morphy, 1990) the most conservative part of the system is the totemic division of the landscape and certainly in the case of place names there is remarkable continuity at least since the 1880s when we first have evidence. However the very capacity of the system to mask history means that it has been able to accommodate change, in particular change in the groups that occupy the land and in the constitution of the groups that are formed. The name is not, as it is presented, evidence of spiritual continuity, but the very way in which spiritual continuity is constructed (Morphy 1993:236, emphases supplied).
In the cited paragraph, Morphy makes an...
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