This caught my eye in Noel Pearson's discussion of the Indigenous Communities Policy from the federal government. He argued that Aboriginals need to develop laws to the new challenges of "grog, drugs, gambling, money and private property." Thomas Keneally's book, A Commonwealth of Thieves, relates a tale where the English returned the items that had been stolen from the Northern Eoran - at the Eora's insistence that their property be returned. Watkin Tench's journal recorded the meeting.
From Keneally's book:
Tench saw an old man come forward and claim one of the fizgigs (fishing spear), "slinging it from the bundle and taking only his own, and this honesty, within the circle of their society, seemed to characterise them all."The journal notes that there were some unclaimed items at the end of the exchange. That sounds to me like an unwritten legal system that has private property laws. More importantly it appears that there was moral force behind private property as there were unclaimed items at the end of the exchange. It may be that Aboriginal peoples who Pearson is more familiar with the history of did not have private property; but I doubt it. I am willing to accept that the clans saw the resources in their territory as communal - but I don't accept the premise that the Aboriginal people prior to colonisation of Australia by Europeans had no property laws, or the myth, which should be noted that Pearson wasn't claiming, that the whole idea of property is alien to Aboriginals. We have an example from Tench's diary that private property was real amongst the northern Eora; and more importantly, the fizgig was a crafted item, which falls under John Locke's notion of a natural resource being worked on and fashioned as individual property. There were also incidents on Sydney Harbour when the English first arrived where the Eora would take the fish from English boats that had harvested them from the waters. This is an assertion of property and sovereignty. The Eora weren't savages; they had a complex legal system. It mixed divine law and human law with a council or elder type political structure. It had rules - albeit very violent ones - for dealing with conflict between individuals, clans and as it turns out with the spearing of Phillip, aliens to their land as well - which Keneally writes was a policy to incorporate Phillip and the English into the Eoran legal system.
