Nonie Sharp has worked with northern Australia’s indigenous coastal peoples for nearly 25 years. After obtaining her PhD in 1985, she taught sociology and anthropology at La Trobe University, Melbourne. A five-year Australian Research Fellowship enabled her to travel to Pacific islands, parts of coastal Europe, Canada and the US, and to write a book about people whose ties to the sea pervade their lives.
Nonie Sharp is also the author of No Ordinary Judgment, the story of the landmark Australian Mabo case on indigenous land rights, a book shortlisted in 1996 for the Australian Cultural Studies Prize and for the New South Wales Premier’s Literary Awards. Other books include Footprints Along the Cape York Sandbeaches (1992), shortlisted for the Victorian Premier’s Literary Awards, and Stars of Tagai (1993). She has also published widely in journals, magazines and edited collections, especially in the Melbourne-based serial Arena. An acknowledged authority on the historical origins of rights to the sea, she brings together in Saltwater People her scholarship, talent for writing and passionate concern for the rights of indigenous people. Nonie is married with a son, two daughters and a granddaughter.
saltwater people
WAVES OF MEMORY
NONIE SHARP
First published in 2002
Copyright © Nonie Sharp, 2002
Cover photos
Front: 
Sandbeach People, Stewart River,
1929 by D.F. Thomson (courtesy of Mrs D.M. Thomson
and the Museum Victoria)
Back: In the waters of Mer, 2000 by Kim Batterham
(courtesy of Film Australia)
Author photo: Australian Institute of Aboriginal and Torres Strait Islander Studies
Map: John Waddingham
All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of this book, whichever is the greater, to be photocopied by any educational institution for its educational purposes provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act.
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National Library of Australia
Cataloguing-in-Publication entry:
Sharp, Nonie.
Saltwater people: waves of memory.
Bibliography.
ISBN 1 86508 729 7.
1. Aborigines, Australian - Land tenure. 2. Torres Strait Islanders - Land tenure.
3. Aborigines, Australian - Fishing - Law and legislation. 4. Torres Strait Islanders
- Fishing - Law and legislation. 5. Native title. I. Title.
343.9407692
Typeset in 10/15 pt New Caledonia by Midland Typesetters, Maryborough, Victoria
Printed by SRM Production Services Sdn. Bhd., Malaysia
10 9 8 7 6 5 4 3 2 1
FOR MY FAMILY,
IN MEMORY OF MY FATHER
DOUGLAS JOHN MAINLAND
AND OUR FOREBEARS OF THE
SHETLAND ISLANDS
Contents
List of Illustrations
Acknowledgements
Preface
Map
PART I TRADITIONS
Chapter 1 Two Traditions of the Sea
Resonances
Anchors of tradition
Sacred design
Journey into memory
Transformations?
Breaking the silence
PART II SEA PEOPLES
Chapter 2 Saltwater Peoples
Respecting the Sea
Diversities
Similarities
Chapter 3 Seascape and Memory
Remembering the sea
Terra nullius and the denial of memory
What kind of remembering?
Seascapes of memory
Gateways to lost memories
PART III SALTWATER WAYS
Chapter 4 Living Connections
Inheritances
‘Not like Bush People’
Sea power and the power of the sea
Living connections
Chapter 5 Sea Dreamings and Seamarks
Echoes
The seasonal round: Moving like the waves
Seascapes and Ancestors
Shimmering waters
Salt and fresh
Knowing the dugong
Seamarks and sailing
Chapter 6 Owning and Belonging
Calling loudly: Our right, our fish, our territory
A way of owning
Speaking for this salt water
Travelling together
Ancestral pathways
PART IV EUROPEAN SEA TRADITIONS
Chapter 7 The Freedom of the Seas
North Australia: Fishing in public waters?
In the name of freedom: A common gift
Sovereigns and sovereignty
Purposes new and old
Private rights to land, public rights to sea
Tragedies and lingering rights
Rediscovering common property rights
Chapter 8 Flinders’ Journey into Sea Space
State waters and their origin
From sea place to sea space
An end to marine custom?
Drowning the seamarks?
PART V FOLLOWING THE SEAMARKS
Chapter 9 Waves of Memory 203
Power and memory in the Torres Strait
Holding the sea, by song: Yolŋu people
Down to the sea in boats: Yanyuwa and Bardi, Jawi peoples
Skippers of their own boats: Kowanyama people
Reflections upon the past: The Meriam example
Chapter 10 Old Traditions, New Ways
Riding new waves
An ethic for modern enterprise
The death rattle of public rights
The end of community?
Habitat as the key
Marine cooperatives: The Japanese example
Don’t shoot the albatross
Reclaiming memory
Notes
Select Bibliography
List of Illustrations
Meriam people performing the Sardine Scoop dance at Mer–Murray Island, 1989 (photograph courtesy of Trevor Graham, Yarra Bank Films)
Mary Yamirr, chief plaintiff in the Croker Island Seas case at Croker Island, 1999 (photograph by the author)
A scene from the operetta Trepang, Darwin, 1999: the Yolŋu warrior is seeking to find out whether the Macassan captain is a ghost or a human being (photograph courtesy of Andrish Saint-Clare)
‘They all come up level now’: Michael Sandy, Lockhart River Aboriginal Community, 1983 (photograph by the author)
Yolŋu artist and ritual leader, Dula . urruwuthun, painting at Buku-Larrŋgay Mulka Centre, Yirrkala, 1997 (photograph by the author)
‘Squid and Turtle Dreamings’, ochres on bark, painting by Liwukang Bukurlatjpi, Galiwin’ku–Elcho Island, 1972 (photograph courtesy South Australian Museum [A67540]; copyright courtesy Anthony Wallis, Aboriginal Artists Agency, Sydney)
School children and teachers at the opening of Buku-Larrŋgay Mulka, arts and cultural centre at Yirrkala, 1996 (photograph by the author)
Bardi people Ester and Sandy Paddy collecting 60 trevally from a stone-wall fish-trap (mayoor), Lananan (photograph by Moya Smith, Western Australian Museum [DA/MS 1982/18/37])
Acknowledgements
THIS BOOK IS BASED ON MY WORK AS AN AUSTRALIAN Research Fellow from March 1995 until March 2000, a time during which I visited many island and coastal indigenous sea communities in north Australia. It draws also on first-hand comparative study of sea communities in other parts of the world between 1995 and 2000 and on my work over more than twenty years with the seafaring peoples of the Torres Strait Islands and northern Cape York Peninsula. I am deeply grateful to many people who have shared with me their knowledge, their experiences and their memories. I thank them too for their friendship and their encouragement.
I thank the late H. C. Coombs, who sponsored my application to the Australian Research Council, and the ARC for awarding me a five-year research fellowship. I acknowledge with gratitude the following people and groups: John Clarke, Grant Duncan, Sue Jackson, Peter Jull, Yvonne Forrest, Merrkiyawuy Ganambarr and Buku-Larrŋgay Mulka Centre, Eses Gesa, Rose Hesp, George Kaddy, Flo Kennedy, Anita Maurstad, Tania MacPherson, the late Dolly Nasslander, Gobedar Noah, Mary Noah, Dave Passi, Edwina Preston, Colleen Pyne, Ben Scambary, Viv Sinnamon, Mary Yarmirr; the Counsel of Elders and Kowanyama Land and Natural Resources Management Office, Dhimurru Land Management Office, Northern Land Council; John Bradley and Deborah Rose for reading and commenting on the manuscript; the circle of people associated with Arena Journal and Magazine, especially Paul James in the early stages of the study, John Hinkson and Guy Rundle for their comments on the manuscript.
Special thanks go to Martin Hoare for sharing his knowledge on Irish history and culture; to Jackie Yowell for her professional advice, encouragement and commitment; and as ever, to Geoff Sharp who, for nearly half a century, has shared with me many of the perspectives from which this study arises.
I thank the staff of Sociology and Anthropology at La Trobe University for their professional advice, their patience and their friendship. I thank Bronwyn Bardsley, who typed the manuscript in its various stages with great expertise and forbearance. Without her work this book would not have been written. Merle Parker and Elaine Young kindly assisted with the typing and Mary Reilly and Barbara Matthews gave valuable advice. I thank the School of Social Sciences for its support towards publication of this book.
People in many communities in north Australia offered me hospitality as did those in Norway, Shetland Islands, Netherlands, Ireland, Nunavut province of Canada, New Caledonia, Fiji and New Zealand and at the Northwest Indian Fisheries Commission in Washington State. I am most grateful to them all.
Many scholars have contributed to a vast literature in a variety of fields on which this book relies. Much of their work is exciting as well as informative. My debt to them is unbounded. While the book acknowledges its sources, because it reaches across many fields, it is not feasible to list in detail the progression of work on which these particular sources build. I hope this book will stimulate some people to explore the rich store of archaeological knowledge, the growing body of ethnographic, legal, literary, artistic and cinematic work, and studies on the marine environment, resource management and indigenous fisheries on the tropical coasts.
I thank Geoffrey Bagshaw for permission to cite material from his Anthropologist’s Report, Native Title Claim WAG 49/98, prepared for the Kimberley Land Council on behalf of the native title claimants, February 1999. I thank Film Australia and Ian Dunlop for permission to cite excerpts from scripts of the Yirrkala Film Project, A Collection of Twenty-Two Films made with the Yolŋu of Northeast Arnhem Land, 1979–1996. Saltwater People draws upon my earlier work published in Arena Journal, Australian Aboriginal Studies, Indigenous Law Bulletin, Law in Context, North Australia Research Unit Discussion Paper Series, Pacific Conservation Biology.
Preface
THE TROPICAL COASTS AND ISLANDS OF NORTH Australia, where the sea and the terrestrial environments meet one another, are areas of great richness and diversity. The marine environment, plant communities and animal life offer food sources as abundant and varied as anywhere in Australia. The indigenous peoples of these areas are themselves rich and diverse. In their world, threads of association join people with the sea as well as the land, imprinting them as sea peoples. They believe their ancestor spirit beings and heroes of the sea endowed their clans with rights to particular reefs, seabed, sites and waters, also conferring a special responsibility to care for them. The ways in which they distinguish themselves depend on contrasts with their neighbours: Sandbeach People, not bush people; island not mainland people; people of the sea versus people of the bush or ‘scrub’ country. Yolŋu people of northeast Arnhem Land and Yanyuwa people of islands in the Gulf of Carpentaria make a contrast between saltwater and fresh-water people. ‘Saltwater people’ is used throughout this book to denote the sea people of the coasts and islands.
From the Torres Strait in the far east to the Kimberleys in the west of north Australia, many indigenous peoples live in small communities on clan-owned lands beside the sea. Still today they form a majority of the population in the islands of the Torres Strait, the Gulf of Carpentaria, the coasts and islands of Arnhem Land and the Buccaneer Archipelago in the southern Kimberley. Their present numbers lie in the many thousands, even tens of thousands. This book is about these people, many of whom ‘speak’ directly in its pages.
This book is also about waves of remembering in the time of dispossession. People’s connections with seascapes spring from enduring attachments to place and ancestors. Their stories tell of how recent events have stirred memories carrying feeling and emotion, so releasing the spiritual and practical energies of coastal peoples. There is beauty and grace, strength and fortitude, hope and love, on the one side; on the other, there is ugliness and death, melancholy and weakness, despair and hatred.
THE ISLANDERS OF THE TORRES STRAIT AND THE maritime Aborigines of northern Cape York Peninsula are the first inspiration for this book. I first visited some of their communities in the late 1970s. At that time Donald Thomson’s ethnographic writings had given me a sense of the seafaring Aboriginal people of northern Cape York Peninsula and how they contrast themselves with their inland ‘bush’ neighbours, referring to themselves as Sandbeach People. Thomson’s understanding of their spirituality, their prowess and their courage as seafarers and sea hunters, their profound sense of their environment, led me on a saltwater journey of my own.
Through the work of overseas scholars, especially human ecologist Bonnie McCay and anthropologist John Cordell, I began to grasp the unfamiliar truth that coastal and island peoples in various parts of the world hold customary rights to marine areas adjoining their lands and are bonded with these seas in innumerable ways. Betty Meehan’s 1982 study, From Shell Bed to Shell Midden, gave me a grounding on the long-term use of the sea and sea-shore in Australia.
In 1992 the High Court of Australia recognised indigenous rights to land in the Mabo case. I became suddenly aware of the active presence of sea Dreaming peoples along the tropical coasts and islands. ‘Salt Water Dreaming’, a paper given by lawyer David Allen at the Surviving Columbus: Indigenous Peoples, Political Reform and Environmental Management in North Australia Conference, Darwin, in 1992, brought home to me the aesthetic wholeness of the saltwater people’s relationship with the sea. I knew then I would write a book to help make this relationship known to non-indigenous people.
As it turned out the book became a journey between two cultural traditions of the sea. The cornerstone of Western sea tradition is the notion that the seas are for everyone to share in. Such an enduring and compelling belief makes it hard for non-indigenous people to understand the ‘sea rights’ of indigenous people.
Saltwater People criss-crosses contrasting sea traditions, identifying differences — and, to my surprise, points of contact — so facilitating people’s understanding. Exploration of the origins and history of the ancient Western tradition of sharing the sea may rekindle memory of a time when local groups along the coasts in parts of Europe exercised customary rights to strands and waters they took to be theirs.
Saltwater people today see native title rights to the sea as a stepping stone to a long overdue economic independence. This is happening at a time of major world economic change when even the once sacrosanct Western tradition of open access to the coasts is giving way to property rights-based fishing. The concluding chapter asks burning questions about the future: if individual marine property rights become established along the Australian coasts, will some indigenous people be integrated into conventional entrepreneurship? How might accountability towards others and care for the sea that saltwater people claim as their birthright be built into modern fishing enterprise? These are unresolved questions relevant to indigenous people, to the fishing industry and to us all. Several illustrations of self-regulatory fisheries and fish habitat conservation projects in world settings raise the possibility of finding forms of mutual endeavour in a marine world devastated by the pursuit of narrowly conceived individual interests. Questions about the prospects for finding new ways of living together concern us all. Saltwater People searches for answers realistically, respecting the strengths and limitations of different peoples and cultures.
At a time when old Western anchors of sea tradition are being raised, a deeper understanding of different traditions of the sea has become urgent. My wish is to convey a sense of the richness and resilience of peoples who are shaped by and in league with the sea and its creatures, corporeal and spiritual; and whose attachments are to specific locations bequeathed to them ancestrally. I like to think that the understanding I am seeking is close to what philosopher Raimond Gaita means by the word ‘lucid’: a clear understanding that impels people to act in morally enlightened ways.
PART I
TRADITIONS
1
TWO TRADITIONS
OF THE SEA
Resonances
I TWAS 1978 AND I HAD COME TO THE MURRAY Islands—Mer, Dauar and Waier — within listening distance of the Great Barrier Reef. I was watching a man cast a sardine net in the shallows in front of his house. His movements were graceful, seemingly effortless. With both hands, he held the edges of a circular net weighted around the edge and flung it a few metres in front of him. As the net described an arc in the light morning air his right arm continued to reach out as though it was helping the net to reach its goal. For a few seconds the man and the freed net formed a silhouette against the pale blue sky and the dappled sea. With his arm outstretched he looked like the statue of a way-finder.
He recovered the net from the sea and soon he and his little son were picking out sardines from the mesh and dropping them
Meriam people performing the Sardine Scoop dance at Mer–Murray Island 1989
into an empty petrol drum. Schools of sardines in their thousands form large bands along the shallows at Mer island. People use them as fish bait and they also provide good food for a rainy day. The Meriam people perform their traditional sardine dance to the beat of the New Guinea drum. I watched the fisher and his son return to their home on the beachfront to prepare for a fishing trip out on the reefs surrounding the Murray Islands. The man and his brothers-in-law would fish for the family, even for the whole village.
This scene is rich in meaning for me. At this moment I sensed an elemental attachment to the sea that the Meriam were able to take for granted. Sardines are insignificant fish in themselves, but everyone knows that they are a ready lure for bigger fish. The five-year-old boy on the sand with his father would already know that trevally are a landward fish and will follow the sardines into the shallows. He would soon learn too that trevally, a fish he knows as mekmek, will strike at the sardines each morning but at different places along the shoreline according to the tide.
My memory of the man, the boy, the net flying through the air, and the sheen on the sardines, evokes a scene of tranquillity, grace and beauty. Yet I was soon to learn some important meanings of the saying that calm surfaces may hide turbulent waters. Mer was the island where the nation-shaking Mabo case would soon begin its ten-year story. In its famous 1992 judgment the High Court of Australia recognised the rights of the Meriam people to land above the high-water mark: the island of Mer was exclusively theirs ‘as against the whole world’. But from a Meriam standpoint this was only half a story and half a victory. The Meriam are seafarers and fishers and for them the sea is life. In the wake of the Mabo judgment, leaders at Mer announced to the world that fishing for the family by no means fulfils all their needs. Their aim is economic independence, not reliance on welfare payments, and they see the source of this independence as coming from the sea. But traditional fishing has not met all their needs for more than a century; over five generations ago their forebears began operating clan-owned luggers and earning a living from pearl shell and trochus shell.
Mer is an island of rich and expanding traditions with a longstanding code of behaviour. If you follow good custom, or debe tonar in the Meriam language, you take only what you need from the sea and the land, you respect other people’s property rights and above all, you share. The Meriam hold their sea hunters in high esteem, and in turn, the hunter takes pride in being generous, for to be greedy is shameful. The Meriam are steeped in the custom of generosity with food: the sharing of harvested food, wild or cultivated, still remains its own reward, and to expect a return in kind is like not sharing at all.1 Before the Christian missionaries arrived at Mer in 1872, there were other sanctions: people who failed to follow the law of sharing with others and at the same time respecting other people’s property, ‘didn’t see the sun go down’ that day.
What were their rules and law? I wondered in those first days. What knowledge guided the daily round I was glimpsing? I learned then in 1978 that every inch of the lands of the Meriam people is owned by someone, even in those village areas that had become public space with a community hall and school. I became aware that the entire perimeter of the island was divided into eight clan territories, as it still is today in 2001. Much later I learnt that the boundaries between these clan lands extend out over the foreshore and reefs and came to appreciate the courteous silence of the Meriam at my unwitting trespass on their clan-owned marine territories. The Meriam are an intrepid sea people who, until the end of the 1800s, made sea journeys of over 150 kilometres for trade, for battle and for fertiliser for their food gardens, often travelling in canoes 15 metres or more which they obtained from coastal New Guinea. They were great gardeners of the rich volcanic soils of their islands. Their law, known as Malo’s Law, after their sea god Malo, forbids them to trespass on each other’s land, and Malo’s Law is also a law of the sea. The Meriam have a form of sea ownership derived from local custom and law. Over the last fifteen years anthropologists have termed this form of ownership ‘customary marine tenure’. This marine tenure, the Meriam taught me, is as important to them as land ownership.
When a major anthropological expedition from Cambridge University visited Mer and other Torres Strait Islands in 1898, the scientists were struck by the Islanders’ knowledge of their land and sea environments. The local people had a distinctive name for nearly every species recognised by scientists.2 They observed that the Islanders were competent navigators with a flair for geography. All the islands, large and small, the sandbanks, coral reefs, capes, coves and prominent rocks had distinctive names too. The anthropologists soon became aware of the Islanders’ vast mental store of geographical knowledge, demonstrated by the readiness with which they drew maps and portrayed ‘the essential characteristics of an island from memory’.3 Nearly a century later, Meriam descendants drew and named the reefs, cays, islands and passages that mark their sea boundaries. Across this time gap much of their knowledge of inherited marine boundaries had been buried beneath an imposed sea tradition very different to their own. More than 100 years ago, government officials told the Meriam to forget about the clan land boundaries that extended out over the reefs.4
Anchors of tradition
THE SEA DREAMINGS, FORMS OF OWNERSHIP, AND SEA knowledge of coastal and islander indigenous peoples in Australia are little known even today. People believe that Aboriginal Dreamings come from the land; that it is non-indigenous people of the island continent who are bestowed with a sea dreaming. Australian novelist David Malouf said just this in his 1998 Boyer lectures. He contrasted the ‘vision of the continent’ as an island culture of settler Australians to the organising vision of Aboriginal people: ‘If Aborigines are a land-dreaming people, what we latecomers share is a sea dreaming, to which the image of Australia as an island has from the beginning been central.’ ‘Our land is girt by sea,’ Australians sing unselfconsciously; the image of a blue-bordered island continent brings with it pleasurable thoughts of wave and sand, surf and rollers, reef and sea as a place of free expression. This statement disregards the ‘bush dreaming’ of settler Australians; it is also born out of a lack of knowledge of the vision of indigenous coastal Australia. Like most Australians Malouf is unaware that indigenous peoples of the coasts and islands are sea Dreaming peoples. Their Dreamings follow the law of each people’s coastal territory which extends out into the sea.
Most Australians take for granted their right to free use of the seas around the continent. Certainly this sense of freedom is now qualified by rules curtailing that freedom: swim between the flags, buy a fishing licence, don’t take too many fish, care for the coasts. Yet an overwhelming feeling that the beaches are for everyone remains dominant in the minds of citizens. Licensed commercial fishers — men and women — know that there are three maritime boundaries set by Australia and the International Law of the Sea. Within those limits, the coastal seas are available to all Australians. The professional non-indigenous fisherman in the following story is working tropical seas within the terms set by Anglo-Australian law.
Like his father, the fisherman has a licence to fish commercially and has done so for twenty years. He described himself to me spontaneously as a ‘saltwater person’. He catches about 40 fish each day and if he doesn’t catch this number he moves on. As a responsible producer and an office-bearer in the seafood industry, he has led moves to eliminate what fishers at the port of Karumba on the Gulf of Carpentaria call the ‘cowboy element’ in the fishing industry. In July 1996 we sat in his office near the Darwin waterfront and he told me how he saw Aboriginal saltwater people. ‘I think Aboriginal people just want to be left alone; but realistically I just don’t think it’s actually possible, and we need to train both Aboriginal people and non-indigenous fishermen just to interact better. But I know Aboriginal people well enough to say they really are very, very easy people to deal with and they have the best interest of the resource at heart.’
A year later the same fisherman was in the Federal Court in Darwin contesting a claim by the Aboriginal saltwater clans of Croker Island (200 kilometres northeast of Darwin) to a primary right to the waters adjoining their islands. He had been fishing in the waters according to Australian rules. The Croker Islanders believed he required their permission to fish there, and had taken their native title claim to seas adjoining their islands to an Australian court. Theirs was the first claim to sea rather than land in Australia — and became known as the Croker Island Seas case.
The fisherman was upholding a powerful and appealing sea tradition, one with ancient origins. It carries an obligation to share the sea. Western sea tradition is grounded in an ancient belief that the sea is open to everyone and cannot be owned. This was the view expounded by Roman jurists and philosophers, who believed sharing the sea arose out of the unbounded and constantly moving character of the sea.5 Until recently, the view that the public right to fish in tidal waters became part of English law in 1215 when King John signed the Magna Carta, was upheld in major legal judgments.6 The idea that sharing the seas stemmed from the nature of the sea itself became embedded in the thinking of English jurists. Sir William Blackstone, famed English jurist of the eighteenth century and leading exponent of the doctrine of individual private property in land, wrote in 1789 of how ‘water is a moveable, wandering thing and must of necessity continue common by the law of nature’.7 However, the idea that all citizens may share the coasts is only as old as sovereign states — that is, several centuries — but this way of imagining sea space came to exclude all other perspectives. Today, owners of sea country like the Meriam land–sea owners, who drew their sea boundary markers in the sand for me in 1993, challenge us to recognise that the European cultural perspective on the sea is by no means the only one.
This challenge to the imagination reached Australia’s highest courts. In recognising native title rights to the sea on 18 September 2001 the High Court made a ground-breaking judgment. Five of the seven Justices concluded that the rights and interests of Croker Islander yuwurrumu or clans exist in some 3,300 square kilometres of sea in accordance with the claimants’ traditional laws and customs. In one important respect the judgement is a milestone along paths where two laws meet, for it breaks with the certainty that the sea cannot be owned. However, unlike the High Court judgment in the Mabo case on native title to land on 3 June 1992, the sea rights recognised by the majority in the Croker Island Seas case in September 2001 are not exclusive: they coexist with the public right to fish and the right to navigate. In this view, ‘there is a fundamental inconsistency’ between common law public rights of fishing and navigation and native title rights. Although they may coexist they ‘cannot stand together’ as one.8
Sacred design
WHAT IS THE SALTWATER PEOPLE’S CONCEPTION OF SEA property? And why do people like the Croker Islanders or the Meriam feel so strongly about it? First of all, they own areas of salt water in the same way as they own land: on behalf of a patriline or a clan. This joint ownership with or on behalf of others is very different to conceptions of property recognised as institutions in the common law of England. In the Mabo case the majority of Justices of the High Court recognised the existence of ‘interests of a kind unknown to English law’—words used by Justice Hall in a landmark case in British Columbia, Canada in 1973.9 In Australia, these interests were designated as ‘native title rights’, which the High Court took to be unique or sui generis, that is, rights which exist according to the local laws and customs of a group of people of a particular locale. We are speaking here of what one authority referred to in relation to Ireland as ‘a different concept of property altogether’ to that derived from feudal law.10 In a short paper he prepared in 1969 for a land case brought by Yolŋu people of northeast Arnhem Land, anthropologist William Stanner described a different way of owning to the European one. He said that Aboriginal people’s relationship to land was a dual one where ‘human corporeal life was indivisibly in pair with spiritual life’.11 This way of owning where, as Stanner says, people are ‘of and with the land’ and ‘of and with one another’, holds true for the saltwater peoples of north Australia — Aborigines and Torres Strait Islanders. Being of and with the sea was made possible by the journeys of founding creator beings, which Aboriginal people call Dreamings or Stories. They marked the seascapes in their travels, giving sacred power to the places they marked.
Yolŋu people of northeast Arnhem Land continue to believe today that their sea rights come from creator beings who shaped the seas. Their conviction is powerful and compelling. Their creator beings gave Yolŋu people rights and responsibilities for the beaches, reefs, seabed, sea life and waters adjoining their lands. They imbued those waters with their spiritual power. Shimmering waters ‘speak’ ancestral power to Yolŋu who recreate its brilliance in their most sacred paintings.12
Their entitlement to this saltwater world finds expression in a profound and detailed knowledge of its geography: the reefs, the channels, the currents. Yolŋu know the habits of the sea turtle and fish, their life cycles and, importantly for Yolŋu, the cycles of seasons and tides. This knowledge is stored in memory, in images, in performance, in song, in sacred regalia, in objects they make. It is also ‘written’ on the salt waters themselves, so that for the Yolŋu the reefs and waters, the channels and passages, the rocks and beaches, are like vast tapestries or atlases.
Here lies the heart of Yolŋu ‘belonging’: a two-way interchange between the Yolŋu and their seas, where the people become part of the sea world and elements of the sea world become part of them. This two-sided belonging is a domain of intense feeling and emotion. ‘We are sacred design,’ Dula ŋurruwuthun, a Yolŋu artist with special knowledge of Yolŋu sacred law, declared in 1999 in a statement on his inheritance of particular seas. His declaration, translated from his native language, accompanies ŋurruwuthunfs sea paintings. These became part of a national travelling exhibition and are now held in a permanent collection at the National Maritime Museum in Sydney. The sea paintings were created to help Australian people understand the nature of Yolŋu rights to the sea. ŋurruwuthunfs declaration is rich with an identification with the sea that carries feeling and emotion. It speaks of Wulamba, the sound of Gapu Dhä-yindi, a body of open sea belonging to his clan. The artist explains that this ‘wide open sea has a huge tail of waves. Waters that roar.’ It existed in ancestral times, yet it is everlasting, a massive cycle of movement. Out of the sacred design of this body of water, Gapu-Dhä-yindi, comes also ‘the tantalising taste of the Green turtle’. Its pattern is ‘etched by the smell of the sea’. In Yolŋu understanding, a body of water is identified by the various senses.13
In this two-way belonging, the sea is not just waters moving in rhythmic patterns or in tempestuous ways. Like the reefs and the seabed and sea life, salt water itself has its own ancestral and human attachment. When a Yolŋu saltwater person dies, sacred songs are sung in cycles guiding the person’s soul over waters owned by different clans to his or her ancestral homeland. It is this ancestral attachment above all that requires the coastal saltwater peoples to say vigorously to outsiders: ‘You cannot come into our sea world without our permission.’ These seas and their marine life are Yolŋu people’s responsibility because the salt waters are ‘part of our blood and body’. In these words Mr Weluk, a land–sea owner at Milingimbi off the Arnhem Land
Mary Yarmirr, chief plaintiff in the Croker Island Seas case at Croker Island, 1999
coast, sought to explain his sea rights to the 1980–81 judicial hearing on inshore marine rights, conducted by the Aboriginal Land Commissioner, appointed by the Federal government.14
More than a decade later, claimants in the Croker Island Seas case gave renewed expression to this elemental attachment to the sea. On 23 April 1997 the chief plaintiff Mary Yarmirr explained to the Federal Court her right to speak on behalf of the members of her clan. Mary was born at the place where the white and brown eagle painted himself in a creation story, a place called Minjalang. Her rights to certain named waters come from her father, his father and his father again. She is free to hunt in the waters of her clan estate for the rest of her life because as a member of that yuwurrumu or clan her right ‘lies in there’. As a baby her father put her in a canoe with him and from then on she travelled with him on the sea throughout her life. From the day she was born she learnt first and foremost to respect the sea. This is the law she was taught and it says her clan has rights and interests as well as obligations; it confers on the clan the responsibility to return the turtle bones to the sea, for instance, to respect and not waste fish.15
Journey into memory
IN 1995 MY SALTWATER JOURNEY BEGAN. IT WAS OFTEN a solitary path but this was always compensated by rich experiences along the way. My approach to understanding saltwater peoples and their unique relationship with the seas around them took shape around the theme of imagining and reimagining sea space. At first glance, differences between cultural perspectives appear deep-set, traditions miles apart. In the Western tradition the sea is for everyone; in indigenous Australian tradition sharing is restricted: you share with joint owners, that is, clan members, those in other clans tied by marriage, and on occasion, with everyone in your community.
I first explored the different ways in which sea space had been imagined and reimagined at different periods of history. I visited places on the coastal margins of Europe and Canada, the United States and Pacific islands. My first impression was that customary marine rights had somehow been forgotten and when I inquired further I discovered powerful cultural reasons behind this forgetfulness. Examining these reasons became as important to me as understanding what customary sea ownership means. As it turned out, placing these sea tenures within a larger historical and cross-cultural context is highly relevant to an understanding of who the Australian saltwater peoples were, who they are today, and the challenges they face.
I began to ponder some serious questions. The ‘public right’ of all citizens to share the coasts is commonly known as ‘open access’. How had the idea of open access to the coasts come about in Western tradition? Was it because the sea was taken to be a gift from God or nature? Or was it integral with a more general social imagination? That is, at some time in the past did people will open access into being? Had there been stretches of the coasts that served as a series of sea commons for groups of local inhabitants? Had clans, or clan remnants, or villages, divided marine areas among themselves according to geographical locale? Had they fought over these portions of strand and waters? In his scholarly and highly readable book The Law of the Countryside, the Rights of the Public, environmental lawyer Tim Bonyhady gives a picture of English coasts teaming with locally based fisheries with exclusive rights from ancient times. What kinds of tenures did these fisheries have? Were they customary and informal or held in severalty in a similar way to land? Bonyhady himself expresses some uncertainty about the basis on which these fisheries were established.16 My questions were outstripping my own capacity to find answers.
Even in England where vast tracts of land had become privately enclosed, especially in the eighteenth century, there were exceptions as for example in the County of Wessex, the setting of Thomas Hardy’s novels. The opening lines of The Return of the Native take the reader into a seemingly timeless commons that had figured in the Domesday Book: ‘A Saturday afternoon in November was approaching the time of twilight, and the vast tract of unenclosed wild known as Egdon Heath embrowned itself moment by moment.’ Within this relic of unenclosed land, seemingly ‘as unaltered as the stars overhead’ from ancient times, local inhabitants were exercising rights to furze and turf even in the heartland of private property at the end of the nineteenth century.
Several discoveries relating to Western land–sea traditions came as special surprises to me. The first related to the paradox between private property in land as the backbone of Western tradition and the doctrine that all citizens may share coastal waters. At first sight there is a glaring inconsistency between private rights to land owned and saleable by an individual sole owner and public rights to beaches and coastal seas. Sharing the seas is a tradition expounded by ancient philosophers — Seneca for example, who lived from 4BC to 65AD, emphasised sharing and inveighed against those who used this freedom for commercial gain.17 Yet from the 1600s onwards sharing the seas became vital to the rise of capitalism: on land and sea the pursuit of trade and commerce were ascendant. The paradox raises a further question. Did this ancient tradition of sharing the sea become a vehicle for the modern goal of individual acquisitiveness, an aim contrary to the ethic that had originally nurtured that tradition?
My second question was whether there are affinities between the customary tenures of indigenous Australian saltwater peoples and earlier ideas of sharing in Western sea traditions? Unexpectedly I discovered lost stories of customary marine rights in Europe: inherited fishing grounds marked out by custom and fishing rights given to inhabitants as the gift of a king a millennium ago linger on even today. This form of sharing among a group of people who jointly own a portion of sea or land is illustrated readily among European peoples who were not subject to feudal law. In the Tuath or Kingdom of pre-colonial Ireland, ‘the public’ comprised all the members of that body of people, each of whom had an equal right for instance, to the salmon of the locale of the Tuath. Under the Brehon Law of Ireland, declared to be no law at all by the colonising English in 1607, this equal right of such a group of inhabitants was recently compared by one jurist in an Irish legal case ‘to a public right of fishing’.18 Yet this does not amount to a state-based right to sea space; it is the right of members of a geographically based group to the exclusion of the other inhabitants of Ireland.
Elsewhere, in the fisheries of northern Norway for example, even on the isle of Skye in Scotland, official policies of public rights to state waters have served as a carapace for locally based groups. Under the umbrella of open access, these informal rights have sometimes been passed down through families and groups as rights of inheritance to particular fishing grounds. Lost memories of customary rights to fishing grounds and foreshores are by no means lost altogether. Inherited rights to fishing grounds were passed on in marine areas of Troms and Finnmark in northern Norway. There, in modern times, small-scale fishers made agreements on fishing practices which respected one another’s rights to long-standing fishing grounds.
Yet if informal customary rights had existed in the past or even survived into the present, why was there no literature acknowledging them? And why had English common law no category of ownership of land and sea as the joint or common property of a clan or other geographically based local group? And then again, how local is a local group and how big? Sir Tipene O’Regan, Chairman of the Treaty of Waitangi Fisheries Commission, rightly pointed out to me that the local territory of his tribe, Ngai Tahu with some 30,000 members, comprises nearly 50 per cent of the whole coastline of mainland New Zealand.19
A third discovery gave promise of answers to some of my questions. Scholars associated with the International Association for the Study of Common Property, formed in the late 1980s, sought to distinguish common property as a form of property and to show its relevance today. An important starting point was a 1989 collection of essays, A Sea of Small Boats, edited by John Cordell, a world authority on customary marine tenure. Its appearance marked the beginning of a period when scholars would debate the character of property rights, old and new.
Transformations?
THE CONTEMPORARY CONTEXT I S A CHANGING ONE. Assumptions about the ‘real’ Australia located exclusively inside the continent are rapidly being surpassed. As David Malouf’s thoughts suggest, the bush image of Australia has changed over the last twenty years; increased leisure and mobility have brought the idea of coastal recreation into the experience and the aspirations of most Australians. The growth of the recreation industry along the coasts and the changing world of northern Australia since East Timor’s independence in September 1999 may presage a transformation in the lives of the saltwater peoples on Australia’s northern rim.
Suddenly the economic independence I have seen so many people in indigenous communities crave, and which has so often been thwarted by Protectors and ‘native welfare officers’, has become a subject of active debate. In the name of a failure of indigenous separatism, a simple choice is being posed between assimilation and endless social stagnation. Aboriginal leader Noel Pearson addresses cogently the question of Aboriginal dependence on welfare. Rejecting the notion of the government as a ‘welfare-spraying Hydra’, he asks how the values of reciprocity and responsibility intrinsic to Aboriginal societies may reassert themselves in modern economic enterprise.20
In his book Belonging, historian Peter Read remembers how he was sometimes ‘overwhelmed by the sadness of our history’. In the first few years of my association with people and communities in the Torres Strait Islands and northern Cape York Peninsula I too had moments of sadness and of anger. I wept at the loss of will and listlessness I saw in some communities. This was toward the end of the 1970s in a world awakened by calls for black power, independence, and rights to land. Some years earlier, in 1973, in a landmark case known as Calder, the Supreme Court of Canada recognised that native title rights could exist in Canada. About that time the Inuit began a long and eventually triumphant struggle to establish the province of Nunavut.21 I could scarcely believe what I saw and heard in far north Queensland. ‘Killing them softly’ summed up the still palpable colonial legacy behind the words ‘protection’, ‘native welfare’ and ‘advancement’.
Today there are contradictory tendencies within indigenous communities; citizenship, the formal dismantling of the old ‘native welfare’ systems and the promise of native title, have aroused hope and self action. However, a lack of self confidence, sense of purpose and spiritual numbness, inherited from a system where people were treated like children, have taken a hold on some people. There are others with the strength of will and the enterprise to break through dependence on welfare. My mind returns to the image of the man and the boy sardine fishing at Mer island in 1978. Today, a generation later, the boy is now a man and there is another boy. The man casts the sardine net, he fishes for his family—but he also goes out in his dinghy and sells his catch to the community-owned freezer facility at Mer. This is modern marine enterprise, Meriam style.
Breaking the silence
AUSTRALIAN HISTORIAN GREG DENING HAS SUGGESTED that the most difficult problem in cross-cultural research ‘between indigenous peoples and intruding strangers . . . is the depth of the silences’.22 Such a silence exists between the saltwater cultures of indigenous Australia and non-indigenous Australians. We cannot understand or speak of that we do not know and David Malouf is by no means alone in his ignorance of indigenous sea Dreamings. His view may be seen as the reverse side of a growing sensibility about indigenous attachments to land. Many people know the history of the land rights movement, its beginnings in the 1960s among the Gurindji at Wave Hill and the famous ‘bark petition’ of Dula . urruwuthunfs people, the Yolŋu: their response to moves for a bauxite mine on Yolŋu land was a petition to the Australian government attached to a piece of stringybark. That petition was followed by the first Aboriginal Land Rights case brought by Yolŋu clans and was followed in turn by the Aboriginal Land Rights Act (Northern Territory) in 1976. Most people know of the ten-year long Mabo case brought by Edward Koiki Mabo and other Meriam land–sea owners, and the breaking of what William Stanner called ‘the great Australian silence’ about indigenous people.23 This occurred on 3 June 1992 when the High Court of Australia recognised native title to land at Mer and overturned the doctrine of Australia as terra nullius, that is, land belonging to no one.