Land and Sea Tenure at Erub, Torres Strait: Property, Sovereignty and the Adjudication of Cultural Continuity

Abstract

ABSTRACT Approaching property as social practice, and native title as a confluence of indigenous, ethnographic, and legal discourses, we address two themes: firstly, the ethnocentrism of the state's division of ‘property’ from ‘jurisdiction,’; applied to deny indigenous societies' practice of the latter; and secondly, the contradictions inherent in judicial evaluation of continuity and discontinuity in indigenous law and custom. We explore the relationship of ‘home place’ to tenure at Erub, where island, reef and ocean comprise a cultural and experiential continuum. Rights across a full spectrum of material/symbolic resources involve a dynamic tension between principles of exclusion and incorporative reciprocity. The issue of how to balance more particular against more collective rights is at play with each nesting of more local into more inclusive socio‐territorial identities: from households and lineages, through island communities, sub‐regional island groups, and Torres Strait regionally, to the encapsulating state and evolving international orders. At Erub, an island community long regarded as a vanguard of creolization for Torres Strait, newcomers have by‐and‐large been assimilated to indigenous systems of land‐ and sea‐holding and authority. The connection between people and territory is a complex practice of social identities and interests responding to political opportunity, according to cultural forms that manifest substantial and traceable continuities to indigenous arrangements, as innovation has proceeded. The continuities appear sufficient to satisfy criteria for native title recognition as articulated in the Mabo decision, but the criteria themselves are too narrowly based to accommodate the processual dynamics of evolving culture and tradition. A reordering of territorial jurisdiction, predicated on the principle of Islander consent to development activities in their homelands/seas, would provide more authentic conditions for cultural autonomy.

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