Academic journal article Oceania

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

Academic journal article Oceania

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

Article excerpt

Colin Scott [1]

Monica Mulrennan [2]

McGill [1] University, Concordia [2] University


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 Tones 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.


This paper examines the relationship of indigenous, ethnological, and legal discourses in the definition of rights to land and sea among Tones Strait Islanders at Erub (Darnley Island) in northern Queensland (see Map 1 for regional view). In Australia, to a greater extent than in Canada or any other settler state, the rules and customs of indigenous tenure systems are legally regarded as the source and test for state recognition of native title. The native title claims process routinely depends on a combination of indigenous and anthropological documentation and testimony to formulate jurisprudence on the validity of claims. Hence, a three-way discourse -- indigenous, ethnological and legal -- shapes the emergent realities of property, boundaries and territories in contemporary Australia.

Axiomatically, property is the product of social practices and processes; it is about relationships among people in regard to objects owned. The social contestation of property definition and demarcation is continual, so any attempt to represent or codify property rights in a fixed and formal fashion involves a certain abstraction and reification. This is as true within customary tenure systems as it is for current jurisprudential and legislative acts to define native title, and by corollary to redefine contiguous rights in the wider social order. In the legacy of Marx, the ideology of property as object (e.g. the myth of absolute possession of 'things' as capitalist commodities) is distinguished from actual property as a social process. Anthropologically, property as object is naturalized, reified, and taken-for-granted in a variety of cultural ways, according to distinctive ontologies and social practices.

In some systems the status of property as the outcome of social politics of negotiation or subordination may be relatively transparent. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.