Alternative Law Journal
edited by Bryan Keon-Cohen; Aboriginal Studies Press, AIATSIS, Native Title Research Unit, Canberra, 2001; $59.95.
Papers from the Native Title in the New Millennium: Native Title Representative Bodies Legal Conference 16-20 April 2000, Melbourne, Victoria and the accompanying compact disc, additional papers, maps and information provide an extremely useful resource on native title. Although the conference was aimed at native title representative bodies, there is useful information in the combined compact disc and book package for all who have an interest in native title, not just those working in representative bodies. Although the compact disc covers the same areas as the book, it more closely follows the conference proceedings, with copies of the various presentations and transcripts of the discussions that ensued. The articles in the book are extensions of the conference papers.
The contents of the book and the supplementary compact disc are far too numerous to be discussed separately within the scope of a book review. The major areas and issues arising from the Native Title Act 1993 (Cth) are covered. In Part One, David Bennet QC discusses a number of constitutional issues and, in Part Two, Justice North describes the way in which the Federal Court manages native title cases in the context of having to cater for the needs of two quite different cultures. Part Three is devoted to describing the alter native State and Territory schemes allowed for under s.43A of the Act.
Part Four looks at the issue of economic development. Jon Altman looks at the leverage that native title provides to Aboriginal people to bring about economic development in the isolated areas of Australia. Essentially this can only be because of the resource sector's activities and interest in being in these sorts of areas. Unfortunately it is difficult to imagine there will ever be a vast array of opportunities available to indigenous communities in the more isolated areas of Australia. Brett Midena provides a very useful explanation about the most desirable process for making agreements with traditional owners, and the range of economic benefits that could be included. In particular he suggests that rather than focusing on the issue of compensation it is better to think in terms of the economic viability of projects and what would be a fair share for the native title holder. Ron Morony discusses an issue which is becoming increasingly important for the mining industry, namely joint venture partnerships that are designed to increase the business management capacity of indigenous communities. In particular he discusses the role of the Aboriginal and Torres Strait Islander Commercial Development Corporation in improving the economic situation of Indigenous Australians and thereby helping them become self-sufficient.
In Part Five, 'Agreements and Alter native Approaches', Mark Love discusses possible ways forward in the now shelved discussions between the Wik people, the Queensland government and the Cape York Cattlemen. Scott McDougall and Greg Egert look at how the Quandamook Land Council and Redland Shire Council have attempted to go beyond the matter of native title and develop an agreement that works towards addressing a broader range of social issues that face indigenous communities.
Part Six is devoted to critical issues that have been identified by those native claims that are currently being processed through the legal system. Michael Barker QC looks at cases that have arisen since Mabo 2, in particular Miriuwung Gajerrong, and the range of issues that this case has raised in relation to proof of native title. In particular he asks when is native title extinguished and what are the rights associated with native title? And now 'the Court that gave Aboriginal persons the picture of title in Mabo (No 2) [has been] asked to rule finally on whether the picture painted in the Miriuwung Gajerrong appeal is legally flawed' (p.211).
Bryan Keon-Cohen QC discusses the challenges for lawyers and anthropologists surrounding client legal privilege and the issue of bias and expert knowledge. For example, in the Yorta Yorta and Ward cases the judges questioned the anthropologist's ability to provide impartial evidence. Keon-Cohen QC offers a number of tentative suggestions to overcome these problems, for example:
• information that claimants provide needs to be clearly marked in terms of what is and is not confidential;
• consultants' inquiries must be confidential to clients, lawyers, anthropologists and various named agents; and
• consultants should be made aware of 'expert' Practice Directions.
Unfortunately the section on Indigenous Land Use Agreements (ILUAs) was rather brief, although it should be said that this is probably a relatively under-developed part of the Native Title Act and few have been negotiated. Patricia Lane in her article 'A Quick Guide to ILUAs' provides some very useful tables showing the difference between ILUAs and agreements that eventuate from the right to negotiate, and what the different types of ILUAs can be used for.
After a brief look by Richard Bartlett, Tom Bennion and Bertus de Villiers at what has occurred in Canada, New Zealand and South Africa, Garth Nettheim takes up the interesting issues of the relationship between international law and native title. In particular he looks at how the international Convention on the Elimination of All Forms of Racial Discrimination (CERD) through the Australian Racial Discrimination Act 1975 (Cth) (RDA) was crucial for ensuring that native title had meaning. Nettheim investigates why the RDA is 'unable to provide any sort of "safety net" against subsequent Commonwealth legislation which erodes the legal protection of native title' (p.393). If it were not for the Constitution, there would be no restrictions on eroding native title via Commonwealth legislative amendments. Garth Nettheim shows how the 1998 amendments undermined native title, and he ends with some direct advice to practitioners about what they can do to facilitate the protection of native title.
In Native Title in the New Millennium, legal practitioners, industry leaders, academics, consultants and staff from representative bodies and the National Native Title Tribunal provide useful insights into the current situation of native title law and practice including the issues that have resulted from the 1998 changes to the Native Title Act 1993. This is an extremely valuable reference for law and legal studies students as well as practitioners and negotiators who have to deal with the everyday management of native title issues.