Alternative Law Journal
by Christos Mantziaris and David Martin; Federation Press, 2000; 366pp; $99.00 hardcover.
The landmark decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 significantly altered Australian law. However, it left many questions unanswered. Some questions have been resolved, rightly or wrongly, by the courts and parliaments and others remain to be addressed. Native Title Corporations: A Legal and Anthropological Analysis attempts to respond to some of the questions that have remained problematic (p.v): What happens after native title has been determined to exist? Who will hold the native title? Who will decide what can happen to areas of land and water where native title exists?
The main aim of this book is to analyse the current legal framework for native title management by corpora tions via a legal and anthropological approach. The need for such an investigation is carefully outlined by the authors and ultimately stems from the 'lack of legislative foresight and subsequent executive neglect' which have 'resulted in a mandatory system of title management by corporations which lacks unity and a firm basis in public policy' (p.xvi). They believe that this foundational confusion may cause the institutions developed within this framework to fail, particularly when they are subjected to a variety of social, political and economic pressures (p.258). Mantziaris and Martin thus delineate the range of areas that provide particular challenges for native title management. Subsequent to this investigation the authors proceed to propose a design process which addresses the outlined concerns.
Native Title Corporations is separated into three main sections. Part I addresses the character of native title in order to provide a theoretical foundation for the analysis of native title con tent. Here, the authors cleverly adopt (from Noel Pearson) the device of a 'recognition space' to describe this area where Indigenous traditional laws and customs intersect with the Australian legal system. This premise becomes a useful analogy throughout the whole book.
Part II analyses the legislative policy that underlies native title management and discusses some of the legal and policy problems it creates. Of particular concern to Mantziaris and Martin are three broad areas:
1. the accommodation of the structural characteristics of the native title recognition space;
2. the specification of the legal relationships between the native title corporation and the native title group; and
3. the relationship between the law and policy of native title management and existing laws and policies on indigenous affairs (p.134).
Indeed, the authors clearly illustrate how many of the problems which afflict the native title management system as a whole can be attributed to problems generated by their interaction (e.g. the interaction of the Native Title Act, Aboriginal Councils and Associations Act, Native Title (prescribed Bodies Corporate) Regulations) (p.90).
Part III of Native Title Corporations speaks to the concerns outlined in Part II by proposing a 'design process' (rather than a template) which addresses how native title institutions might be better designed. This design process addresses four main considerations:
1. the particular circumstances of the native title group or groups, and their wider political and institutional setting;
2. the minimum legal facilities necessary to enable the native title institution to function effectively within the Australian legal system;
3. the accommodation of certain principles of institutional design that will maximise the chance of the institution's long-term success within both Indigenous society and the broader Australian political and economic system; and
4. planning for the incidence of taxation.
Thus, Mantziaris and Martin propose four basic designs for native title corporations. These corporations may be briefly described in the following manner:
1. type 1 corporation has a membership which, as far as possible, is congruent with the membership of the native title group;
2. type 2 corporation where the member/delegates are conceived as de facto 'delegates' of the native title group or groups;
3. type 3 corporation has the corporation as trustee and the native title group members as beneficiaries of the trust declared by the court; and
4. type 4 corporation is similar to type 3 except that the membership of the corporation is very small, all the members of the corporation are also members of the board and all members of the corporation are nominated as representatives of various sub-groupings within the native title group through an informal mechanism located in the Indigenous do main.
Obviously, none of these scenarios will provide a perfect solution to the challenges faced by native title holders. The authors openly acknowledge that their design process, by necessity, can only hope to achieve a 'reflective equilibrium' between the ideal and the possible (p.330). Indeed, for political reasons the reform of native title law is likely to be 'slow and piecemeal' (p.329).
Native Title Corporations is certainly designed for a legal audience, although the authors hope that the book will be of use to other native title practitioners (p.xix). However, even putting aside legal terms and concepts, it must be stated that the text is generally 'wordy'. Indeed, long sentence construction often makes for slow and demanding reading. Similarly, navigation through this technical volume would be assisted by more concise introductions and conclusions to each chapter. In fact, if the reader is not in need of technical descriptions I would advise them to read its accompanying volume, Guide to the Design of Native Title Corporations (National Native Title Tribunal, Perth, 1999). Despite these criticisms, Native Title Corporations provides a valuable contribution to native title discussion on a number of fronts. First, it is important because of its interdisciplinary approach. Indeed, as Graeme Neate (president of the National Native Title Tribunal) notes in the foreword (p.vii), 'they have explained the intricacies of the legislative scheme and its implications, many of which are not obvious from the text of the legislation but arise in a cultural context.' Second, Native Title Corporations is important because it fills a gap in the native title literature. Last, it is useful because it not only deconstructs the problems that have arisen or may arise within native title corporations but it also provides a design pro cess to help native title groups', and more particularly their legal advisers, navigate their way through complex native title management issues.
Amy Roberts is a PhD candidate in Archaeology at Flinders University.