Western Desert and Native Title: How Models Become Myths

Abstract

A number of litigated Australian native title cases concern lands located within the area of Australia known as the Western Desert. In these cases, legal arguments concerning the nature of the land‐owning group and the ‘society’ at the time of colonisation have inevitably drawn on anthropological writings about Western Desert local and social organisation. The impetus for this paper was provided by the Yulara case, a compensation claim over the township of Yulara near Uluru, in which the trial judge concluded that land tenure systems in the Western Desert are based on patrilineal principles. One of the significant factors in the Court's decision was an apparently uncritical acceptance of early anthropological models and data, which had reported supposedly patrilineal socio‐territorial organisation in the Western Desert. Researchers currently working in this region and Indigenous peoples themselves, however, reject this model. In this paper, we question the validity of some of the earlier investigations, and propose an alternative understanding of Western Desert territorial organisation based on data gathered from one of the Pitjantjatjara‐speaking people's neighbouring dialectal groups, which is also consistent with most of the other recent and extensive work done in this cultural bloc.

Keywords:

• Western Desert
• Land Tenure
• Native Title
• Patrilineal
• Australia

Notes

1. Acknowledgements: We are grateful to Peter Sutton and two anonymous peer reviewers for their comments on an earlier draft of this paper.

2. Burke (2005, 213) notes that Elkin, based on his fieldwork in South Australia in 1930, identified ‘a large “Western Group” incorporating a bewildering array of “tribal” names’. Later he referred to this group as ‘the Aluridja Group’ (Burke 2005, 214). This was the precursor to the ‘Western Desert cultural bloc’. The expression ‘Western Desert’ was used before Berndt's paper. Tindale (1941), for example, applied the term ‘Great Western Desert’ to areas of the Great Victoria Desert and north thereof. The linguist, Douglas (1955), refers to the ‘Western Desert language’. Geographers had been using ‘Western Desert’ to denote the Great Victoria and the Gibson deserts well before anthropologists. The use of ‘Western Desert’ as an anthropological concept referring to a cultural bloc, however, can be traced back to Berndt (see Sutton and Vaarzon‐Morel 2003, 4.12).

3. We are grateful to an anonymous peer reviewer for this insight.

4. The Aboriginal Land Rights (Northern Territory) Act 1976 , s 3.

5. Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717.

6. James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.

7. Ngalpil v Western Australia [2001] FCA 1140.

8. De Rose v State of South Australia [2002] FCA 1342; De Rose v State of South Australia (No. 2) [2005] FCAFC 110.

9. These observations are made by one of us (Glaskin), who attended the hearing of expert evidence in the Federal Court in Perth, Western Australia.

10. De Rose was successful on appeal, and the final outcome of the Yulara and Wongatha cases is not yet known.

11. He defined the ‘estate’ as ‘a Tjukurr site or constellation of Tjukurr sites or tracks … not limited to the actual site or sites or track, but extended to related or nearby topographical features’ that could ‘vary greatly’ in size (Harrington‐Smith v State of WA, para. 879).

12. See, for example, Howitt (1996 [1904], 41); Elkin (1979 [1938], 56ff); Tindale (1974, 33).

13. That is not to say that this is equivalent to a lack of enduring social and cultural traditions.

14. Even if Frazer thought that conception totems were the earliest form of totemism from which all other forms, such as clan totemism, have evolved.

15. Jango v Northern Territory [2006] FCA 318, Summary, para. 10 (and see para. 11).

16. Jango v Northern Territory [2006] FCA 318, Summary, para. 11.2.

17. Despite the fact that members of Western Desert dialectal groups today recognise a unity in that many refer to themselves as ‘Western Desert’, our opinion is that naming and dividing this unity into eastern and western Western Desert, as was done in the Yulara case, is more of an abstract and intellectual operation than anything else. While one clearly observes the existence of a cultural unity, the idea of the Western Desert cultural bloc as an analytical tool remains to be more fully demonstrated. However, since the respondents and the judge seem to accept the existence of the bloc (e.g., Jango v Northern Territory [2006] FCA 318, para. 15), no elaboration of the scientific grounding of its use is necessary here.

18. See De Rose v South Australia [2002] FCA 1342, para. 102.