A survey of property theory and tenure types

In the evolutionary anthropology of the past century and its successors up into the 1950s, property was a notable concept, but with the rise of new interests in and concerns with ecology and evolution, property and tenure (or ownership) were by and large replaced by terms such as territoriality, range and use1 in anthropological studies of people/

38land relations. In our country, following the 1992 Mabo No. 2 decision and the federal Native Title Act 1993, Aboriginal and Torres Strait Islander people’s rights and interests in land under their traditional law and custom are recognisable by the common law where they have not been extinguished by acts of the Crown or other adverse acts. This sea change in the law respecting indigenous land rights has implications for anthropological work in native title and other land-related actions. We need to refamiliarise ourselves with the theory and concepts of property and ownership, but at the same time, we should continue to study territoriality, range and use.

Keesing (1981:67–75, 212, 213) distinguished cultural structure from social structure in the same way that Goodenough (1969:329–330) earlier differentiated cultural anthropology from social anthropology. The first is a system of organised knowledge and rules or principles held by social actors which we infer from our observations of their behaviour (including their speech and discourse), while the second is a system of patterned regularities we can infer from the same kinds of observations. In other words, we observe what people do and say, and we can model this either as a cultural system of organised knowledge and rules for action or behaviour or as a social system of patterned regularities of action or behaviour. Both perspectives are important for us as we seek to analyse and describe how people own and use land. If we take seriously the requirements that Mabo No. 2 and the Native Title Act 1993 established, then we anthropologists and our clients must present to native title tribunals and federal courts evidence of fact and expert opinion that there is an ongoing system of traditional laws and customs 39that connects people to their land and waters. This includes a system of tenure, as well as a system of use. Customary marine tenure2 adds to the challenge that the study of property and the traditional Aboriginal ownership of land pose for us. Cordell (1993:163) observed that ‘land and marine tenure may be divisible for the sake of analysis, but from indigenous coastal peoples’ perspectives[,] they are indivisible’. The point is important not only as a representation of indigenous beliefs and values, but also as a statement that terrestrial and marine tenure should be analysed and described in a single account, using the same kinds of terms and relations amongst them.

Tenure, property rights and objects of property

There is a wider body of theory that we can draw upon to better understand Aboriginal tenure systems.3 The concepts of tenure (or ownership)

40and property are at its centre. Tenure and property always involve three terms; in symbolic logic, we say that the predicate ‘own’ takes three arguments. We can formalise them in the proposition ‘A owns B as against C’, as did Brewer and Staves (1995:3); Hallowell (1955[1943]:239) and Paul (1987:193). This contrasts with the simpler ‘A owns B’, as in popular discourse and in Snare (1972:200), who spoke of ‘the special relationship which may hold between a person and a physical object called “owning”’.4

Tenure or ownership is the relationship of A to B as against C, while property, strictly speaking, is the rights that A has in B, the thing that A owns as against C. Hallowell (1955[1943]:239) noted that the term ‘property’ has two common senses: it signifies both the object that is owned, as well the rights that are exercised over it.5 He argued, citing economists and lawyers, that the term should be restricted to the first sense. We accept his view and will use ‘object of property’ for the second sense (see also Rose 1994:253, 263; Waldron 1988:30). It also bears noting that B need not in fact be a physical object, but can be incorporeal knowledge, for example, see Lowie (1929).

41The inclusion of two personal (or group) arguments (namely, A and C) makes the owning relationship a social one. There is no property in nature apart from humans. As Demsetz (1967:346) expressed it:

The property relationship is also a cultural phenomenon, i.e. it is based on symbolism, the arbitrary assignment of meaning. Marshall Sahlins (1996:1) recently reminded us that Leslie White used to say that an ape could not recognise the difference between holy water and distilled water for there is no chemical difference, only a symbolic one. Snare (1972:200) speculated that a Martian would understand little of our daily social life if he did not comprehend that much action makes sense only in the context of the property institution:

The triadic formulation of tenure and property relationships also recognises the insight encapsulated in the conventional definition of rights in rem as rights which A holds in B ‘as against the world’ (Radcliffe-Brown 1952[1935]:33; Munzer 1990:31; Rose 1994:271). The phrase ‘as against the world’ not only quantifies the C argument, but in so doing, it introduces the condition that ownership implies the right to exclude others from possession, occupation and use and enjoyment of the object of property, for example, land (see Munzer 1990:89). 42Common law courts and tribunals in land rights cases here and overseas have generally insisted on evidence that a claimant group has exercised its right to exclude others from its land, i.e. the right of exclusion is a sine qua non of ownership. In its absence, there is no ownership—there is no property.6

However, the triadic formulation of tenure and property relationships remains incomplete as formulated because it fails to note that they exist only in the context of wider cultural and social systems which have internal and external dominion7 dimensions. It fails to note that the A and C parties constitute a polity, that is, a rule or norm-generating and—maintaining community, and it fails to note that the set of parties in C can generally be partitioned into those who are members of the polity and those who are not, for example citizens and residents vs foreigners, kin vs strangers, us vs them, etc. The quantification of C as ‘as against the world’ has the same defect.

In the first respect, property relationships exist as a subset of the social relationships in a polity, and its members customarily and conventionally acknowledge and observe one another’s property rights. Phrased another way, members of a polity hold beneficial or proximate titles (Sutton 1996a) in land and other objects of property. The polity itself, however, exercises dominion internally, that is, it sets the parameters of tenure and title.8 For example, in state-based polities, the

43state typically exercises rights of escheat, eminent domain, taxation and regulation. The latter may include zoning, building restrictions and requirements, etc. All these relate to its holding of the radical or underlying title to its territory. In classical and contemporary Aboriginal Australia, a non-state-organised polity, the leading men and elders of a region exercise the underlying title by mutually confirming one another’s group proximate titles and by dealing with problematic cases, for example where a group dies out and/or where succession, boundaries, divided rights and the like are contested and disputed (Sutton 1996a).

In the second respect, polities have external relations with other polities, for example, state-based polities regulate whether and how non-citizens may hold property rights in their territories. In the common law countries, the courts have consistently held over the past few centuries that only the state (e.g. the Crown in Commonwealth countries) can acquire rights in land recognisable by its law in other territories. Only a state can acquire radical title to the territory (or a part of it) of another polity. Private individuals cannot do so. But to return to the triadic formulation of tenure and property relationships, the point is that the members of a polity cannot expect to have their property rights automatically recognised and respected by members of another. Tenure systems, i.e. systems of property rights, always exist in an ‘international’ inter-polity context. During the colonisation of the New World and our own country, it was often the case that the members of the indigenous 44non-state-based polities did not have their property rights recognised by settler members of the colonising state-based polities, or even by the colonising polity itself. Such was the case with the property rights of Aboriginal people in land and waters under their own traditional law and custom until the Mabo No. 2 decision in June, 1992.

The origins and functions of property

Property is universal, an institution found in all human societies (Smith 1985:404, 407–408), and property in land similarly is universal— see Hallowell (1955[1943]:242–244), who noted that the denial that hunter-gatherers and pastoralists own land was ‘linked with the pseudo-history of the social evolutionary theories of the nineteeenth century’ and referred readers to Herskovits (1940) for evidence they own land. Hallowell (1955[1943]:249) concluded that one of the ‘primary contributions [of the institution of property] … to a human social order and the security of the individual’ is that ‘individuals are secured against the necessity of being constantly on the alert to defend [valuable] objects [of property] from others by physical force alone’ (see also Rose 1994:296). This is because in human societies, we internalise norms and values with respect to property. Over and above the anticipation and fear that other owners will exercise force and commit violence against us, we are motivated not to trespass by the wider ‘moral, religious, or legal penalties’ that may operate if we do not do our duty. The institution of property probably has an evolutionary history like those of kinship9

45and language that takes them back at least to the emergence of Homo sapiens sapiens. Phrased another way, we have always been territorial, like other contemporary hominoids, but when we became landowners, acquired kinfolk and began to speak modern-type language, we also became human.10

But if property is very old in our species, its specific objects nonetheless have shallower histories. It is a truism of our discipline that not all the plant and animal species and natural phenomena found in the environment of a particular society are recognised as resources and assigned value in its culture. No doubt many Aboriginal groups knew of the presence of gold in their countries before non-Aboriginal prospectors and miners invaded their lands, but there is no reason to believe that gold was the object of specific property rights and interests in the indigenous tenure systems as it later became. Similarly, Aboriginal people have probably owned and used the beach and littoral areas of their estates for millenia, but whether they owned and used the offshore areas (especially the reefs and seagrass beds) where most dugongs and sea turtles are found in another question. This leads us to the question of what are the conditions under which particular things become objects of property.

In the history of thought on the origins of property (see Umbeck 1981:50–64), several kinds of theories were proposed. Much early Western thought (from the Greeks onward) regarded property as originating from God, so that property rights were considered to be ‘natural’ and people were obliged to respect them. The philosopher Locke argued in the 18th century that land and things became property only when humans invested their labour in their production, but a century earlier, Hobbes developed a social contract theory which survives in current theories. Hobbes’ Leviathan (1951 [1651]) situated the original contract

46squarely in human society and the acquisitive, maximising propensities of people. For Hobbes, the right each individual had to the use of his own physical power or labour was the only natural right. In the absence of any agreements, people must live in a continual state of ‘warre’ with their neighbors. ‘It is consequent also to the same condition, that there be no propriety, no dominion, no mine and thine distinct; but only that to be every man’s that he can get: and for so long as he can keep it’ (Hobbes 1951[1651]:83–84, cited by Umbeck 1981:1, 51).

In The Social Contract, Rousseau (1938[1762]) took issue with Hobbes’ view that ‘Might makes right’, but he contributed to helping to understand the costs associated with the original contract. He concluded that where resources have little or no economic value, a contract regulating their use would probably not be made. Rousseau (1938[1762]68–69, cited by Umbeck 1981:53) wrote:

Umbeck (1981:53) thought it possible to assemble ‘a fairly full theory of the creation of private property rights from the work of Hobbes and Rousseau’. Where there are no agreements, rights are determined by personal violence and force. In such situations, much potential income is lost that could be got by contracting with others to grant and recognise exclusive rights to property. However, the contract will be costly to form and enforce. Given the costs, the gains from contracting increase with the value of the resources to be made private property.

Umbeck (1981:53) also noted that the social contract theory fell into disfavour after Rousseau and for nearly two centuries the relationship among property rights, contract and the state was forgotten or ignored. He said that it was reintroduced into modern price theory by way of the literature on ‘externalities’. Umbeck (1981:53–64) reviews the development of the externality concept from Pigou (1938) and Knight 47(1924) through Coase (1960), Gordon (1954) and Cheung (1970, 1974) to Demsetz (1967).11

Demsetz (1967:350) proposed that property rights emerge, i.e. they are assigned, ‘with the emergence of new or different beneficial and harmful effects’. Communities assign property rights ‘when the gains of internalization become larger than the cost of internalization’. By ‘internalization’, Demsetz means that the beneficial and harmful effects of actions, such as hunting, fishing, mining, cutting timber, etc. then are brought squarely to bear on owners as they so act and exercise their property rights.12

The primary empirical case that Demsetz examined in support of his theory was that of the development of private property rights in land amongst Northeastern Algonkian peoples.13 Originally, men

48hunted game primarily for food and the furs they required for their own use. There was no need to assess the impact of one’s own actions on the stocks of game nor to assess the effects of others’ hunting the same game on one’s own chances. But with the advent of the fur trade, the exchange-value of furs increased greatly as also did the scale of hunting. It then became advantageous for hunters to husband and conserve fur-bearing animals by hunting over only a portion of their land each year in rotation and by excluding trespassers and punishing poachers. The assignment of property rights in specific territories was a response to the new conditions. They allowed a community to adjust to new cost-benefit possibilities where the costs of not assigning property rights had become greater than the costs of assigning them.14

Umbeck (1981) proposed a contractarian theory for the emergence and assignment of property rights in land. His primary empirical case was California for perhaps two decades from the discovery of gold in 1848. The United States acquired California from the Mexican Republic by treaty the same year, and the new military governor abolished Mexican law, which had regulated mining previously. The 200,000 or so miners who rushed into the territory encountered a situation where they were technically trespassers and there was no American law regulating access to minerals on public lands. The new state government did not commence activities until 1850 and did not fund a law enforcement operation for a few more years. But as Umbeck (1981:5) noted, ‘[y]et by 1850…, miners had organized into groups and had agreed upon explicit contracts in which exclusive and transferrable rights to land were assigned to individuals within a given mining area or district. By 1866 over 500 separate and distinct districts were formed, each with their own system of property rights’. He also observed that while the contracts varied in some respects, each ‘explicitly enumerates the rights that each miner shall be allowed in choosing between alternative land uses and the amounts of land each miner can claim as his own property’.

Umbeck’s social contract theory is grounded in the human capacity for violence and it attempts to identify situations where the cost

49of violence leads people to forego it and to enter into property rights arrangements with one another. He (1981:28) wrote:

Umbeck (1981:60–64) criticised Demsetz’ account of the instituting of private property rights amongst Northeastern Algonkians in response to the fur trade, and he argued that his own contractarian theory was mutually exclusive with Demsetz’ externality-based theory. Umbeck (1981:64) contrasted the two theories, and he concluded:

No matter which of the theories—Demsetz’ or Umbeck’s—we opt for, both are relevant to customary marine tenure in Australia, for they lead us to believe that property rights in offshore sea country and its resources only developed when Aboriginal people got watercraft that made them accessible and when they acquired technology and techniques that made the hunting of dugongs and sea turtles on reefs and seagrass beds possible.15 Similarly, property rights in bailershell, cone

51shell, giant clams, mother-of-pearl shell and other reef resources would have arisen with new demand and with new technology and techniques to harvest them. Groups assigned property rights in the new resources when it became too costly not to do so, whether by way of reduced production or of increased intergroup violence.

The character of property rights

Property rights are a subset of the rights16 that members of a society (or polity or community) have and exercise, and one way to identify them is simply to list them. For example, A.M. Honore (1961; summarised by Becker 1977:18–19; see also Munzer (1990:22) and Waldron (1988:49)) proposed that the ‘full’ or ‘liberal’ concept of ownership included eleven kinds of rights, which are:

Although Honore considered the total complement comprised full ownership in ‘mature legal systems’, he said that none was essential to ownership—even the right to possession could be restricted.

Scholars have generally considered that the right to exclude others from entry and use is criterial or diagnostic of property rights in land, but Hallowell (1955[1943]:239–240) observed some time ago that our Western view that exclusive possession and use are essential to the property relationship is ‘only one specific constellation of property rights, a limiting case, as it were’, and that absolute property rights are not found in any society. Sutton (1996a:9–14) recently examined the right of exclusion in indigenous Australian systems of land tenure. He noted (1996a:11) that acts of physical exclusion are rare, and he considered 53that the right of exclusion has been overemphasised. He concluded (p. 14):

Other have considered that the right to alienate (see Honore’s right 5) is necessary, else there is no property. For example, Justice Blackburn wrote in the Milirrpum Decision, ‘I think that property, in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate’ (cited by Williams 1986:199) However, this restriction overlooks and ignores the classical work of Maine17 that communal landed property in some societies is inalienable and people acquire rights in it, not through purchase or inheritance, but through their gaining membership of the perduring corporation that owns it. As Williams (1986:91) noted, succession to land amongst the Yolngu was not well understood by anthropologists in 1970 nor was the topic developed clearly in evidence during the hearings. The insistence that the right to alienate is criterial to property is perhaps based upon the mistaken assumption that land is always a commodity (something that can be bought and sold) in a system of market exchange based upon contracts between buyers and sellers. But as we have just noted, real property existed before the emergence of markets for land in complex societies, and certainly it existed long before the emergence of capitalism.

In analysing and describing Aboriginal systems of tenure, the Honore listing is helpful to insure one has comprehensively listed the

54several kinds or property rights. Certainly, one must modify, reformulate and expand some of them, say, to note that owners have certain ceremonial rights in specific sites, that owners have the right to be asked for permission to enter and use country, etc. What is missing in Honore’s listing are ‘the right to state ‘proper’ (customary-lawful) possessive claims over land, [and] the right to speak for, on behalf of, or even authoritatively about the country and its content as cultural property (i.e. to represent it, in both senses)’ (Sutton 1996a:12). These are universally found in Aboriginal tenure systems.

Types of property right systems

Berkes18 and Farvar (1989:9–10) and Tisdell and Roy (1996:4), resource and development economists, identified four ideal types of tenure systems (‘property regimes’)19. These are (we have slightly rephrased their definitions):

55

The term communal property has a long history. In the nineteenth century, anthropologists such as Morgan, as well as Marx and Engels, regarded the evolution of human society—and specifically, the emergence of capitalism—to have involved the replacement of communal property by private property. More recently, Teh and Dwyer (1992:1–2), an introductory property law text, also distinguished communal property from private property and noted that ‘[t]he general non-recognition of communal property in Anglo-Australian law is traceable to the growth of capitalism in western civilisations’. Demsetz (1967:354) defined ‘communal ownership’ as rights ‘which can be exercised by all members of a community’, and gave the example of the right to walk on a city footpath. The Mabo No. 2 decision did not use the term 56communal property, but used a series of phrases that leave no doubt that the High Court believed that traditional Aboriginal rights and interests in land were such that it was communal property. The phrases used are ‘communal rights and interests in land’, ‘communal native title’, ‘communal title’, ‘communal proprietary interest’, ‘communal usufructory occupation’, ‘communal occupation’, ‘communal lands’, ‘common law communal native title’ and ‘traditional communal title’.20

The relationship of communal property to the term common property bears some examination because the latter term is sometimes used to signify both common property and open-access property as defined above by Tisdell and Roy (1996). For this reason, Cordell (1989:6) was careful to distinguish sea tenure from ‘common property, the catch-all notion invoked to categorize fishing, fishermen and particular management problems associated with fisheries’. He wrote (Cordell 1989:4) ‘that the world’s inshore seas, at least from the standpoint of many traditional fishing societies, may not or should not be thought of as common property—that is, in the sense of open access, a precondition for many Western legal and theoretical usages of the term’. Here Cordell alluded to the common property resource model that Hardin (1968) popularised in his well-known paper, ‘The Tragedy of the Commons’.21 Cordell (1992:35–36) later said that Hardin’s and his sympathisers’ model does not ‘accurately portray fishermen’s and indigenous people’s attitudes and actions in using marine resources, scarce resources, and sea space, or to guide management of traditional economies’. Cordell (1993:162) further noted that ‘CMT institutions are distinct from … open-access commons or ‘common pool’ resources’.

In an endnote, Cordell (1989:22–23) expanded on the point:

Thus, Cordell identified two distinct views of common property in resource and environmental economics. CMT fits within one of them ‘as a special system of property rights within the framework of common property resource management problems’ (Cordell 1992:13). CMT also exemplifies ‘community-based or joint property’ (Cordell 1992:19).22

Ciriachy-Wantrup and Bishop (1975), Quiggin (1986) and McCay (1989; 1987) wrote at greater length about the conflict between these two models of common property, and all expressed the view that the ‘tragedy of the commons’ or open-access regime misapplies the term property to situations where there is in fact no property.23 McCay (1989:205) put it as ‘what is everybody’s is nobody’s’, while Ciriachy-Wantrup and Bishop (1975:713) phrased it as ‘everybody’s property is nobody’s property’.24 The open-access regime certainly does not fit the

58situations of property rights that villagers had in the commons as we know them from English history. It may be empirically more applicable to situations where ‘resource raiders’ ignore indigenous property rights, as discussed by Ganter (1994) with respect to beche-de-mer, pearlshell, trochus and sandalwood in northeastern Australia. Tisdell and Roy (1996) disambiguated the two senses of common property, as did Berkes and Farvar (1989) before them, by separately designating them as ‘communal property’ and ‘open-access property’ (but as we have seen, some scholars regard the latter term as an oxymoron).

Common property and joint property

The term common property also occurs in the common law tradition, where it contrasts particularly with joint property, but that tradition also uses modifying terms which describe how property rights are distributed over and amongst individuals and groups. It speaks of rights which are held jointly, in severalty, in common or in division.25 This leads us

59to review Stanner’s (1969) unpublished paper, ‘The Yirrkala Case: Some General Principles of Aboriginal Land-Holding’.26 Stanner prepared the paper for the plaintiffs’ lawyers as an attempt to reduce the traditional land tenure system to principles constructed with terms deriving from the Roman and common law traditions, but it was not submitted to the court. Amongst other things, Stanner discussed the distribution of property rights over and amongst individuals and groups. He (1969:2) wrote:

Stanner (1969:3) noted that some anthropologists have tried explain the Aboriginal relationship of ownership between people and land by saying the people belonged to the land, rather than the land belonged to the people. He thought it to be a true statement, but ‘vague and mystical’. We believe the statement to be half-true as phrased.27 Both clauses are indeed true, but they do not contrast as the rather than-complementiser signifies. Thus, it is true both that Aboriginal people belong to the land and that the land belongs to Aboriginal people. The predicate in the first clause signifies inalienable possession, the whole-to-part relationship. Inalienable possession is the relationship of a person’s body (the physical site of the self) to their head. Aboriginal people are part of their land because they incarnate spirit that comes from it. The predicate in the second clause signifies alienable possession, the socially and culturally constituted phenomenon of ownership. Alienable possession is the relationship of a headhunter to his severed trophy. Rephrased, we can say that Aboriginal people belong to the land and they own the

61land, but not that the land owns them (except in a secondary metaphorical sense).

Stanner further elucidated the relationship between people and land by describing it as dual. That is, the relationship was at once in animam ‘in spirit’28 and in rem ‘in a thing’. In other words, the relationship had both spiritual and material dimensions. The root29 of Aboriginal title derived from the ‘historic-genetic’ relation of the owning group to particular land in animam (i.e. part-to-whole), and the group’s in rem relationship (i.e. its ownership of the land) resulted from it and depended upon it. Stanner (1969:3) described this dual relation of ownership as a first fundamental axiom.

Stanner’s second fundamental axiom was that ‘the clearest, most unequivocal, most enduring and most perfect ownership-relation between persons and land’ was that ‘between a patrilineal descent group (clan) or similar group and a more or less definite tract or region or set

62of localities or places’ (1969:3). We need not dwell on the point, but we note there has been extensive debate the past three decades or so over the character of owner groups in classical and contemporary Aboriginal social organisation. Whatever position one takes, one surely must recognise that significant property rights are vested in groups, but at the same time, people are linked to land and to one another through multiple, cross-cutting ties (Rumsey 1996).

Stanner’s axioms rested upon fundamental postulates that Aboriginal people did not conceive to be open to question. Three postulates were:

63Some empirical data are in order here. Sunlight Bassani explained to Rigsby (1995) that the land or ground around Port Stewart is part of his group, just the same as the trees, the animals, ‘anything you name’, shade, etc. ‘That’s our family.’, he concluded. This is a clear statement that Lamalama people share spirit with their land. It also asserts that Lamalama people and their land are parts of a whole universe of social actors.

In the common law tradition, the four unities criterial to joint ownership or tenancy are (a) title—each co-owner must acquire by virtue of the same instrument or act, (b) possession—each co-owner must be entitled to possession of the whole property, (c) interest—each co-owner must acquire the same interest, and (d) time—each co-owner must acquire the rights at the same time (Hardy Ivamy 1993:145; Martin 1990:220; Rutherford and Bone 1993:185–186; Walker 1980:667). Stanner (1969:4) noted that all these conditions were met, except that

64the unity of time in Aboriginal ownership ‘extended to the unborn and the dead as well as the living’.

The common law tradition distinguishes joint ownership or tenancy from co-ownership or tenancy in common ‘in that joint tenants have one interest in the whole, and no interest in any particular part’, whereas ‘[t]enants in common have several and distinct interests in their respective parts which may be in unequal shares and for interests of unequal duration’ (Burke 1977:2:1748). Tenants in common hold property by unity of possession because none of them knows their own individual part, but this is the only unity in the ownership because they may hold different kinds of interest, they may hold from different sources of title and their interests may vest in each at different times.32

Stanner (1969:8) later expanded his argument for joint ownership by noting that ‘[t]he estate could not be diminished by the deaths of any of the joint owners; it remained the undivided property of the survivors; it did not, in a strict sense, pass by ‘inheritance’ between generations but remained ‘in’ the dual spiritual-corporeal stream of life—certainly, no one could be ‘disinherited’.33 He also wrote ‘that the rights were vested, not severally in individual persons, or in common between persons, but jointly in a particular kind of kinship group’(1969:9).

65A lawyer, we believe, would be unlikely to accept Stanner’s qualification of the unity of time and would not accept his argument that traditional Aboriginal land tenure meets all the criteria for common law joint tenure. But of the forms of common law tenure, it most closely resembles joint tenure.

Stanner (1969:10) also noted that there might be a few areas of land in the Yirrkala region that were ‘areas of commonalty’ or ‘box up’ places. He thought these lay outside the clan estates and ‘on the hunting ranges of merging or overlapping bands’, but they ‘in no way threaten or qualify the clan estates’.

Here we believe that Stanner’s analysis went offtrack when he spoke of ‘areas of commonalty’. We know what he intended in ordinary English, but in legal terminology, we think it more accurate to regard ‘Murri roads’ and ‘company land’ (to use the Cape York Creole and Aboriginal English terms) again as the joint property of two or more owner groups and their members,34 not as their common property.

To summarise this far, we have considered Stanner’s arguments that Aboriginal property rights in land are held jointly, not in common, not in severalty (individually), and not in division. Becker (1977:25) also noted that:

In the Cliff Islands and Lakefield National Parks land claim transcripts, there is much evidence for joint Lamalama ownership of their estate, and we give just one bit of it here. When Rigsby examined Sunlight Bassani on the topic of whether he could sell or give away part of the

66Lamalama estate, he included in his reply:

This makes reference to the need to consult with other joint owners on matters of import, and thus it is evidence for joint ownership.35

Finally, Stanner (1969:8–9) spoke of ‘several classes of less precise rights which lay with people who were not of the true joint owners’ and he called such people ‘secondary right-holders’. He distinguished amongst:

These certainly must be part of any adequate analysis and description of Aboriginal tenure systems. It is also clear that individuals and groups may sometimes transform secondary rights into primary property rights36 over time in a variety of circumstances relating to succession, regencies and even land claim actions.

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Conclusion

In this chapter, we surveyed property and tenure generally. We identified communal property as an ideal type of tenure system. We noted that the phrase ‘common property’ signifies two different situations amongst resource and environmental economists, while it signifies something else again in the common law tradition. One sense is that of communal property, which is the indigenous property regime attributed to Aboriginal people, and the second is that of open-access property. For its part, the common law distinguishes common property from joint property. We also reviewed Stanner’s argument that most Aboriginal property rights in land are held jointly, not in common, not in severalty (individually), and not in division.37 We accept Stanner’s argument and the observations of other anthropologists regarding joint tenure in Aboriginal Australia, and we suggest that the communal property regime as an ideal type should be interpreted also as joint tenure.

References