Native Title anthropology after the Timber Creek Decision
Land, Rights, Laws: Issues in Native Title. Vol. 6, no. 5 January 2017
McGrath, Pamela Faye
E-Publications; E-Books; PublicationNT
This paper considers the implications of the Timber Creek decision for the work of native title anthropologists and highlights some of the conceptual and methodological shifts required for research on native title compensation claims. The author draws attention to the demanding nature of native title compensation cases and the potential for research to aggravate existing trauma associated with loss of country, arguing for the need for all involved to be attentive to this risk when pursuing future claims. - Publisher summary
Made available via the Publications (Legal Deposit) Act 2004 (NT).
Native Title (Australia); Aboriginal Australians; Land tenure; Law and legislation
AIATSIS Research Publications
6 pages ; 30 cm.
Pamela Faye McGrath and AIATSIS
https://aiatsis.gov.au/publication/35025 [AIATSIS website]
Land, Rights, Laws: Issues of Native Title, vol. 6, no. 5, 2017 3 compensation cases would do well to focus more on individuals rather than societies, and specifically the impact of loss of a relationship with country on a persons sense of self in relation to others. Testimony about embodied emotions such as anxiety, grief, hurt and gut wrenching pain  was given weight and was influential in Justice Mansfields consideration of the solatium. There is a substantial body of ethnographic literature that anthropologists might draw on to help articulate the embodied nature of the relationship between Aboriginal people and country.4 In addition, the emerging international literature on indigenous health and wellbeing and intergenerational trauma may also yield concepts, language and other research that will aid in the task of assessing some of the deeper cumulative consequences of loss of connection to country.5 The hurt caused by the loss of cultural reputation among members of the surrounding jural public of traditional owners, the sense of failed responsibility for the obligationto have cared for that land , is an element of loss that the Timber Creek case suggests is compensable. As such, the consequences of damage to cultural reputation and social identity will be an important and relevant focus for future anthropological research. Arguably the loss of reputation among the broader Australian public should also be considered, given that maintaining a connection to country is essential to claims of Indigeneity and that losing the ability to call oneself a traditional owner may be a profound blow to an Indigenous persons sense of self in relation to the rest of the world. Timber Creek opens the door to consideration of the need for just terms for native title compensation to include how much it will cost a group to maintain their reputation and identity in the face of loss.6 Finally, it is worth noting Justice Mansfields consideration of the Expert Economists Report by economic anthropologist, Professor Jon Altman. Altmans evidence was deemed by His Honour to be important and consistent with other anthropological evidence, but he chose not to rely on it in relation to determining the appropriate amount to be awarded as solatium . As His Honour explained, As both an economist and an anthropologist, [Professor Altman] has interwoven his views as to the tangible economic losses and less tangible cultural losses suffered by the Claim Group by reason of the compensable actsHowever, because of the interaction of those two categories of loss, and my intention to exclude from this category of damages any element of economic loss, I have preferred to place no particular weight on his evidence for this purpose . The future work of native title anthropologists in the compensation space is unlikely to be limited to the task of evidencing the social impacts of loss. With the decision about the distribution of compensation payments being left in the hands of Registered Native Title Bodies Corporate, and with the capacity 4 The anthropological literature alone is extensive. The following offer a useful introduction: LR Hiatt (ed), Aboriginal Landowners: Contemporary issues in the determination of traditional Aboriginal land ownership, University of Sydney, Sydney, 1984; I Keen, Ancestors, Magic, and Exchange in Yolngu Doctrines: Extensions of the Person in Time and Space, The Journal of the Royal Anthropological Institute, vol. 12, no. 3, pp. 51530, 2006; F Merlan, Caging the Rainbow: Places, Politics, and Aborigines in a North Australian Town, University of Hawaii, Honolulu, 1998; F Myers, Pintupi Country, Pintupi Self : Sentiment, Place and Politics among Western Desert Aborigines, University of California Press, Berkeley, 1986; B Sansom, A Frightened Hunting Ground: Epic Emotions and Landholding in the Western Reaches of Australias Top End, Oceania vol. 72, no. 3, pp.15694, 2002. 5 For example: J Atkinson, Trauma trails, Recreating Song Lines: The Transgenerational Effects of Trauma in Indigenous Australia, Spinifex Press, North Melbourne, 2002; Jonathan Kingsley et al, Developing an Exploratory Framework Linking Australian Aboriginal Peoples Connection to Country and Concepts of Wellbeing, Int. J. Environ. Res. Public Health, vol. 10, no. (2), pp. 67898, 2013; N Argenti & K Schramm (eds), Remembering Violence: Anthropological Perspectives on Intergenerational Transmission, Berghahn Books, New York, 2010. See also: L Connor et al, Environmental Change and Human Health in Upper Hunter Communities of New South Wales, Australia, EcoHealth, vol. 1, su. 2, pp. 478, 2004, and other related publications for a useful discussion of theory and method informing an ongoing anthropological study of environmental change and human distress. 6 D Smith, Valuing native title: Aboriginal, statutory and policy discourses about compensation, Centre for Aboriginal Economic Policy Research (CAEPR), Canberra, 2001, p. 38.
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