Negotiating Sea Rights
If I were to visit another country. I would ask my local companion, before I saw any museum or library, and factory or fabled town, to walk me in the country of his or her youth, to tell me the names of things and how, traditionally, they have been fitted together in a community. I would ask for the stories, the voice of memory over the land. I would ask to taste the wild nuts and fruits, to see their fishing lures, their bouquets and fences. I would ask about the history of storms there, the age of the trees, the winter color of the hills... I would want to have something real and remembered against which I might hope to measure their truth.
The Politics of Pacific Sea Rights
An intriguing facet of Pacific island societies is the insight they provide into a range of customs which for the most part did not survive European expansion elsewhere in the topics: the evolution of indigenous property systems in the sea. Customary marine tenure is pan-Melanesian and occurs widely in the areas of western Oceania featured in this issue of Cultural Survival Quarterly. It is something that exists within memory, but is also very much alive in day-to-day community economic routines; it is not something static that people relegate to the past, but something Pacific cultures transform and relate to new conditions.
Variations on this theme include individual, family, clan, and community possession of things in the natural world (and spiritual kingdom) that other societies would not think of trying to acquire or treat as property: octopus holes, winds and currents, star clusters, an area of beach, the right to gather shells at certain times of year, rights of passage through reefs and between islands, landing places for canoes, mythical islands. The power of group identification with the sea, even in some area where tenure customs are presumed to have lapsed or where knowledge or rights and boundaries has been lost, goes well beyond anything Westerns ordinarily associate with attachment to home and sense of place.
A recent conference in Australia on marine conservation brought up some critical issues of customary marine tenure and problems of interpreting these kinds of property relations cross-culturally. During the meeting, I was struck by the depths of the communication gap that must be bridged before indigenous groups and members of the scientific community and officialdom can being to understand each other's viewpoints, especially on questions of management, ownership, and control of sea resources.
It is easy to see why emotions run high on sea rights issues, as outside managers seek to justify imposing regulations on ancestral domains in the sea in the name of conservation and sustainable development. Western Oceania is one of the Pacific's last maritime frontier zones. Marine resources are rapidly increasing in commercial value, accessibility, and vulnerability to overexploitation. Indigenous groups and foreign investors are keen to reap by the benefits of developing resources traditionally under their exclusive control and tenure. On the other hand, outside managers, frequently appealing to what in their view is a superior rationality and a higher moral ground, believe customary marine tenure and local claims to resources should not be allowed to get in the way of protecting the well-being of the marine environment for all citizens over the long term. Gradually, local tenure customs - marginal, ignored, suppressed, or simply taken for granted in the past - are becoming contentious, turning into highly politicized "sea rights" issues. Predictably, sea rights claims and conflicts, a sub-genre of the indigenous quest for territory, social equity, and justice in national development, are winding up in the court systems.
Although customary marine tenure concepts, in some instances, are quite removed from Western laws of the sea and conventions for managing fisheries, clan-based reef and lagoon ownership has been perfected into a fine art in Oceania. Closer inspection reveals these system to have their own valid management principles and strengths. Consequently, one wonders if somehow communities and management authorities can't be brought closer together on sea rights questions; whether there might not be some alternative to lengthy detours through the courts; if there isn't some common ground that would change the perception of customary marine tenure from liability to management asset. I do not with to underestimate the difficulties this conversion could entail. However, the increasingly shared, transfrontier scope of marine management problems in the region provides an immediate, practical, conceptual framework for cooperation. If the sea and fishing have anything to teach us, it is that there are no absolute "rights." Sea rights, like other social and cultural meanings, are subject to processes of negotiation. This is the spirit in which I would like to review some key customary sea tenure and indigenous sea rights developments, primarily in the context of events in Australia.
For a subject like sea rights, indulging in a little cultural relativism can be enlightening; if nothing else, it can remind us of the mind stretch sometimes necessary for people to sit down and talk to each other. My meeting in Queensland, Australia, is a case in point. The gathering was hosted by the Great Barrier Reef Marine Park Authority; its purpose was to assess the very genuine threat of marine pollution - from mining in Papua New Guinea to indigenous communities and resources in Torres Strait and the western Gulf of Papua. Shared marine management concerns drew diverse delegates to a Cairns resort (built to resemble a typical Torres Strait Island village?): oceanographers, mining company lawyers, anthropologists, government officials, some token Australian "greenies," fishing industry reps, Torres Strait Islanders, and coastal Papuans. Conspicuous in their absence were Aboriginal Australians, who clearly have a major stake (though currently no voice) in the management of sections of the Great Barrier Reef Marine Park. Though the meeting was designed to raise strictly management issues, it soon became clear that proceedings would not stay within the technocratic confines of marine pollution surveys and environmental monitoring. Intentionally or not, by inviting delegates from indigenous communities the organizers pushed a whole range of ethical and social justice concerns to the forefront.
The agenda followed a classic Cartesian split: papers sorted out in those dealing with the "physical" as opposed to the "human" environment. Indigenous representatives gravitated to the back of the room, soon nodding off as scientists opened with lectures on the fate of copper molecules in marine sediments and related topics. By the third day, speakers began to interrupted by the occasional angry "What are we doing here?" outburst from the head of an Islander or Papuan community council. Q & A sessions left the moderator nearly apoplectic as Islanders raised their hands to deliver monologues on their struggles and broken dreams, punctuated by long oratorical pauses.
Eventually, the anthros had a go. Instead of fuzzy overhead graphs of catch and effort statistics, rock lobster migration maps, etcetera, bits and pieces of the highly personalized, culturally defined seascape of Torres Strait began to take shape. It turned out that what were just featureless expanses of seawater for the scientists were named Storyplaces in the sea - old reefs from legends, illustrating an ethic or sharing fish associated with kinship, all part of a vast underwater topographic narrative. One speaker presented a social history of Murray Island, suggesting the extent of local dependency on sea resources for subsistence and something of the inhabitants' struggle for a separate cultural identity.
At one point, an Islander took me aside for a piercing discussion of the metaphysics of "Turn Again" Island, taboo for Mabuiag people, which he likened to a ghost ship constantly circling. "How do the managers know what to do with a custom like that?" he asked. "If we don't hunt and fish there, they want to turn it into a marine park." Not to make too much of these kinds of disjunctions, but by the end of the meeting in Cairns, two views of the marine environment stood in stark contrast.
There is no question that the Western management paradigm is winning the discourse sweepstakes hands down. But a poignant dilemma remains: does the contemporary management mind have room for things that are important to indigenous people? Can management frameworks - and all environmental policy is, ultimately, social policy - assimilate the vast questions of black-white relations and social inequality in a place like Australia?
In 1976 a benchmark decision was handed down in Northern Territory that propelled sea rights issues into the limelight. A Commission of Enquiry into the possibility to establishing Aboriginal land rights culminated in 1978 in the Northern Territory Aboriginal Land Act. This did not make many waves beyond the shores of Capricornia, but for Aboriginal communities occupying coastal areas it was indeed a watershed. Justice Woodard, taking evidence from Arnhem Land Aboriginal people on land claims, concluded that their aspirations for territorial rights did not stop at land's end but extended over substantial portions of the inshore sea. He accepted in principle that Aboriginal "home country" claims include most estuaries, bays, and waters immediately adjacent to the coastline, and off-shore islands, linked to the mainland through the passage of mythical beings (Palmer 1985).
Many Aboriginal Australians will settle for nothing short of inalienable freehold title to their ancestral domains, and the Northern Territory legislation fell far short of this. Nor did it provide for ownership of seas. It did, however, provide for the making of laws "regulating or prohibiting entry of persons onto, or controlling fishing activities in, waters of the sea... within two kilometers of Aboriginal land" (Aboriginal Land Rights Act 1976, Section 73.1.d). This resulted in a number of court petitions for "sea closures," and, perhaps for the first time in Australia, Aboriginal sea rights became a legitimate subject for detailed ethnographic investigation. Interest in sea rights in Northern Territory has been spreading to other areas of Australia, notably Western Australia, and most recently Queensland (see Jeremy Beckett's article in this issue).
What at first may have appeared to be some kind of enigma, aberration, or trait of an exotic tribe suddenly took on far-reaching implications. As it turns out, ancestral domains in the sea are not an isolated case in Australia. Indigenous groups throughout the Pacific, especially in western Oceania and Melanesia, cling to sea tenure practices, where much of the marine environment is under exclusive clan and community control. This can come as a rude awakening to yachties sailing into a Pacific lagoon, to foreign fishery developers, or to conservationists interested in sighting new protected areas.
Two Laws of the Sea
Twenty years ago, the ethnographic record contained scant information about traditional systems of property rights in the sea. Indigenous fishing and maritime communities wee thought to be analogous to hunter-gatherers. It was widely assumed such economies precluded the formation of property rights. Hunters and fishers could not produce those magic pieces of paper that Western courts like to see verifying titles, boundaries, transaction, improvements, exclusion of outsiders - i.e., proof of possession. It was taken as virtually axiomatic that the sea, and sea life contained in a continuous medium, were inherently common property resources, in the sense of being open and uncontrollably accessible, and hence unownable.
In the years since sea tenure became a research topic, many field studies have challenged the conventional common property and "tragedy of the commons" interpretations and models of fisheries (Johannes 1981; Cordell 1989). In Oceania, some of the most meticulous observations and persuasive arguments concerning the workings of local sea tenure systems as distinct from Western property institutions come from Solomon Islands (Baines 1989; Hviding 1988). These and other case studies from Melanesia, along with research in Australia, demonstrate how sea tenure is indivisible from land tenure, and how it is closely bound up with kinship, traditional law and authority, and other structures that shape cultural identity, thus encompassing far more that Western bioeconomic usages of fisheries or fishing "rights." Clan leaders essentially act as trustees for land and sea holdings of the group, assisted by elders and other important people who live in core ancestral areas. Hviding (1988) notes with respect to Marovo communities: these leaders are not so much property owners in a Western sense, but are empowered to speak about territory they represent. They symbolize association of group and territory. Leaders have the right to control entry by outsiders - also technology, and access to certain species.
Increasing interest in sea tenure and assertions of sea rights can also be seen as part of a broad pattern in Oceania of "reinventing tradition" - reconstructing the past to carve out new cultural identities in the present (cf. Keesing 1989; Linnekin 1990). However, a wide range of Pacific conservation initiatives, kindled by the crusade for sustainable development, are also destined to have a far-reaching impact on the future of indigenous sea rights. Biodiversity support priorities and the search for ways to sustain tropical fisheries have sparked various proposals to integrate and harmonize traditional and contemporary resource management. But are these recommendations much more than wish lists? Can customary sea tenure serve as the basis for fisheries planning and design of protected areas?
Many of the region's coastal zones and inshore waters are either being considered for, or are already enmeshed in, large-scale marine management or protected are programs (e.g., the marine environmental management regime for the western Gulf of Papua and Torres Strait). There are indications that islands and waters in the Torres Strait Protected Zone and parts of the western Solomons (Marovo Lagoon) may eventually be considered for World Heritage nomination. In these contexts, there is a critical need for authorities to develop methods for consulting with local residents and to pay attention to customary rights. Conservation projects require clarification of how and where customary tenure fits into new management frameworks. For most countries in Oceania, some more lucid and reliable form of state-defined rights is called for, to enhance tenure security of local residents and improve environmental management. At present, many indigenous groups targeted for conservation projects don't know what their rights re in the larger picture. They would like to know where they and their clan resources stand vis-à-vis national statutory laws, and in terms of current resources management and development policies.
To a degree, the answers to these questions depend on the outcome of efforts to reconcile legal systems in collision. Law reform commissions around the region are grappling with conflicts posed by local resource control, upheld by customary law vs. state ownership and jurisdiction over mining, fishing, and logging, with national development hanging in the balance - what Baines (1989) refers to as Melanesia's development dilemma. The introduction of Western legal systems by colonial governments resulted in a dual system of land tenure; the same is true for marine tenure systems. The territorial waters of individual countries in western Oceania today are in a real sense governed by two separate laws of the sea. The laws of Britain, France, the United States, and Australia designate that all land and sea below the high-water mark is government or Crown owned. These principles were incorporated into the colonial regulations and ordinances and perpetuated in the legislation of the countries when they became independent. A kind of compromise between introduced and customary laws has been worked out in practice, in that the state recognizes traditional use rights (in fishing) but not exclusive clan or community ownership of marine territory. In some instances, this arrangement has at least provided a basis for compensation where traditional land and sea rights have been alienated in public works and development projects.
Key Sea Rights Initiatives
How are different groups faring in terms of gaining a hearing for their sea rights claims? In Australia, outside Northern Territory, the record up till now has not been encouraging. Despite numerous studies recommending provisions for Aboriginal participation in the management structure and the Consultative Committee of the Marine Park, progress has been negligible (Smith 1987). Aboriginal people outside of Trust Area communities in Queensland continue to be denied any recognition within the marine park of their traditional hunting and fishing rights. A recent finding by the Australian Law Reform Commission - that there should be no categorical recognition of Aboriginal hunting and fishing rights, stressing "unitary" management instead - is a setback for Aboriginal people and may result in further dispossession of some groups and denial of their need to manage their own lands and sea resources. Also, the activities of trawlers working illicitly within areas of the marine park adjacent to Aboriginal land, which are supposed to be closed to trawling, are a source of friction and resentment. Strict enforcement of dugong (sea cow) permits and nonenforcement of trawling restrictions are seen as a double standard.
Australia, one of the Group of Seven "megadiversity" countries, is hailed by conservationist as the leader in creating World Heritage Sites. However, at the recent International Union for the Conservation of Nature (IUCN) meetings in Perth, one delegate raised a pointed question which brought down the house: "Doesn't the country have any way to deal with land rights disputes besides creating more World Heritage Sites?" Australia proudly points to its showcase efforts (Kakadu and Uluru) to involve Aboriginal people in national park management through its Aboriginal ranger programs, and arrangements whereby Aboriginal land is leased to the director of the Australian National Parks and Wildlife Service. However, there is something of an irony in the fact that finally certifying some Aboriginal people as "resource managers" (on their own lands) is seen as a smashing success. The point is, turning Aboriginal people into rangers and training them to be park managers is hardly a substitute for the fundamental land and sea rights legislation they seek.
However, some observers are guardedly optimistic that, with the recent shift to Labor, the addition of reform-minded policy makers in Queensland may lead to gains for Aboriginal people campaigning for territorial rights (see Rigsby and Williams article, this issue). If reforms materialize, they may open up for the first time in Queensland the opportunity for groups to press claims to sacred and subsistence coastal and sea domains.
The Queensland Land Act and the amendments contained in the Aboriginal and Torres Strait Islands Act of April 1985 provide for the granting of reserve areas to their Aboriginal occupiers in the form of trusts. These Deeds of Grant in Trust (known as DOGITs) do not take into account sacred sites, subsistence fishing and hunting rights, or traditional land outside reserve areas, and they do not provide for any compensation for land expropriated in the course of white settlement and development. DOGITs can be alienated at any time by Parliament; they can also be leased to non-Aborigines. Aboriginal people who accepted this arrangement have no veto power over mining or other development activities. Moreover, certain areas of the reserve can be excised and excluded from Aboriginal control. Significantly, some Aborigines and Torres Strait Islanders saw the hooks in the DOGIT legislation and resisted it, though they paid a heavy price: in some cases the government withdrew critical community council support and social services.
One group in Torres Strait that did not accept the DOGIT legislation was the Murray Islanders. Murray has since becoming the focus of a celebrated court case, the Eddie Mabo land case (see Beckett article), which, among other things, petitioned the Queensland Supreme Court to recognize the existence of a system of law and ownership in the Murray Island Group predating Queensland's annexation in 1897. On 16 November 1990 a judgment was handed down. Some of the customary claims of Murray people were accepted by the Court; others were not. This could have sweeping consequences for both Aborigines (e.g., Injinoo and Kaurareg people) and other Torres Strait Islanders, boosting their chances to press claims - not as they have previously under statutory law, which has ended in repeated failure, but under the Australian Common Law tradition.
The case is not finished, however. It returns this year to the High Court of Australia, which will decide whether a system of land law operating on Murray is capable of recognition by the Common Law in Australia. A decision by the High Court on whether Murray Island belongs to Islanders will have a profound impact on the doctrine of Australia as terra nullius, an empty land belonging to no one at the time of white settlement.
It is interesting that there is a second defendant in the Murray case - the Commonwealth - because Eddie Mabo claimed sovereignty not just over land but over submerged reefs that, he argued, were his home reefs and had special significance in myth and legend. Under Torres Strait traditional ownership, complex rules applied to land and sea, currents, seabeds, encircling reefs, fishing weirs, and dugong and turtle hunting grounds. The Mabo claims put Torres Strait Islanders squarely at odds with the Commonwealth, which, by law, owns, manages, and allocates use rights to all underwater sea resources.
The legal proceedings concerning Murray Islanders underscore the extremely tenuous hold they and other Torres Strait Islanders have on their land and marine resource base. Like Aboriginal people, they have no officially recognized sea rights - not even to their home reefs - much less extended fishing rights. Many Islanders live under the illusion that de facto control of local waters means security of tenure. As it is, they engage primarily in subsistence fishing and hunting within a maze of superimposed sea boundaries and restricted areas - the Torres Strait Protected Zone - which they had no hand in creating and which has no relation to their customary marine tenure practices. As one fishery biologist ventured, trying to decipher a map of Torres Strait resource management zones and boundaries: "the whole place looks like a bowl of spaghetti." It is easy to understand why a fishery administrator might object to a policy that recognized traditional reef ownership on the grounds that it would hopelessly complicate the management picture. On the other hand, as Islanders point out, it's a management nightmare up there already. Again, on a parallel with Cope York Aborigines restricted by the Great Barrier Marine Park's zoning system, Islanders have virtually no management-level voice in the operation of the protected zone that encompasses them. A joint Islander-fishing industry consultative committee meets once a year, but this has not clout with the fisheries management committee, which sets quotas.
Lines in the Water: Sea Tenure as Custom Today
Much has been made (in the popular literature and media, especially) about the Dreamtime and Story-places so central to understanding Aboriginal cosmology. In deciphering local relationships to the land and sea, one cannot help but be impressed by the very real qualitative differences between indigenous and Western property concepts and laws. Too much can be made of cultural differences, however. There is a danger in over-romanticizing indigenous custom, especially in the context of land and sea rights politics. In his welcoming speech to the recent IUCN General Assembly meetings in Perth, Bob Hawke, the Australian prime minister, drifted off into never-never land when he proclaimed, "Australia's Aborigines, who for 40,000 years had acted out their belief not that they owned the land but that the land owned them, were perhaps the world's first conservationists."
A strong thread of Green Primitivism runs through the environmental movement in Australia, as it does elsewhere, but Mr. Hawke's statement - portraying Aboriginal people as "nature's gentlemen" - plays straight into the hands of Aboriginal land rights opponents. The notion that "they don't possess the land it possesses them" is a distortion: it seems to imply that Aboriginal people may be so spiritually superior that they never had to develop property systems of their own.
Patterns of old lines and zones in the sea in Torres Strait - not just straight ones but wavy ones, too - may be tangled and blurred (and are still mostly transparent to outsiders). In fact all the different kinds of imposed boundaries on maps do make the place look like spaghetti. But in some places, pockets or vestiges of what were perhaps long ago full-blown customary tenure systems persist. So what? Well, we might ask what would have already happened to fragile reef-associated habitats and valuable fisheries if territorial systems like this were not operating in places like the Solomons, Vanuatu, Papua New Guinea, and Torres Strait. If sea tenure did not exist, it would probably have been necessary to invent it. In fact it is being reinvented - as "custom" today in parts of Oceania, and in the form of "limited entry" restrictions in fisheries worldwide.
Pacific peoples' distinctive hereditary, custodial association with inshore and coastal seas - their local sea tenure customs - find perhaps their most elaborate, durable expression in western Oceania and Melanesia. Communal sea tenure is a mechanism that limits entry. Provided that steps are taken to evaluate and appropriately modify and strengthen tenure customs in a sustainable development context, they may effectively remove the condition of open access, which can lead to the destruction of common property resources. It is important to work to preserve the organizational principles of marine property institutions embedded in customary law, kinship, and wider social fields. Sea rights can help fix social responsibility in caring for the marine environment. They constitute potent conservation tools, impossible to replicate in purely external administrative settings. However, it is also impossible, at least in western Oceania, to separate resource management needs from concerns for cultural identity and group continuity, social justice, and local insistence on a high degree of autonomy in managing the ancestral domain.
1. The bulk of material that has emerged from the Aboriginal Land Rights Act in Northern Territory is available in the form of "Sea Closure Application Books" or Land Claim Books lodged with the Northern Territory Land Commissioner.
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1988 Marine Tenure and Resource Development in Marovo Lagoon, Solomon Islands: Traditional Knowledge, Use and Management of Marine Resources with Implications for Contemporary Development. Report to South Pacific Forum Fisheries Agency. Honiara, Solomon Islands.
1981 Words of the Lagoon: Fishing and Marine Lore in the Palau District of Micronesia. Berkeley: University of California Press.
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1985 The Status of Documentary Information on Aboriginal and Islander Fishing and Marine Hunting in Northern Australia. In F. Gray and L. Zane, eds. Traditional Knowledge of the Marine Environment in Northern Australia. Workshop Series No. 8. Great Barrier Reef Marine Park Authority, Townsville, Australia.
1987 Usage of Marine Resources by Aboriginal Communities on the East Coast of Cape York Peninsula. A report to the Great Barrier Reef Marine Park Authority. Sir George Fisher Center for Tropical Marine Studies. James Cook University of Queensland, Townsville, Australia.
Article copyright Cultural Survival, Inc.