A Legal and Anthropological Analysis

by Christos Mantziaris and David Martin

Published October 2000/ Bibliography

Hardback/ 400pp/ ISBN 1862873720

Australian Price $99.00/ Direct Price $96.25

Overseas Price $96.25

Get a copy

Contents

Reviews

The Native Title Act requires every successful native title claimant group to form a corporation (a 'Prescribed Body Corporate') to manage their title. The corporation will be the group's 'face' in all its native title dealings and has the potential to become a significant new focal point for intra-indigenous socio-political relations.

The authors combine 'black letter law' with policy-oriented anthropology to offer an original interdisciplinary account of the complex and unstable body of law and policy surrounding these native title corporations, and of features of the intercultural domain within which they will be situated.

Part I of the book develops a systematic account of native title. The title is conceived as the product of a 'recognition space' in which indigenous relations to 'country', ordered under traditional law and custom, are 'translated' into legal rights and interests. Part II offers a legal analysis of the title management system informed by an anthropology of contemporary indigenous societies. Particular attention is given to indigenous representational politics and problems generated by the interaction of traditional law and custom and the management relations established under the Native Title Act and the general law. Part III provides an innovative design process for native title institutions which takes account of both the features of indigenous polities and the legislative objectives of title protection and transaction security.

This work is the first of its kind in Australia and, to our knowledge, internationally. The work has both practical and theoretical dimensions. On the one hand, it combines conventional legal analysis with "hands-on" anthropology and corporate governance know-how to provide practical guidance on these issues. The authors explain what native title corporations are, how they might be designed, how such corporations will function within the wider legal and policy framework, and what legal and social problems they might confront and, indeed, create.

On the other hand, these proposals are developed upon a firm theoretical footing. The book develops a legal theory of the content of native title (the asset which the corporation must manage), an anthropologically-informed theory of institutional design, an analysis of legislative policy, and a critical examination of the use of the legal forms of corporation, trust and agency in the service of indigenous groups. The theoretical dimension of the work also provides the background for a set of suggestions on law reform.

Graeme Neate, President of the National Native Title Tribunal, writes in the foreword:
"Mr Mantziaris and Dr Martin have brought to the task their respective legal and anthropological qualifications and experience. They have explored the legal and social context in which the need for native title holding bodies arose. 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. The authors have looked at the range of purposes for which prescribed bodies corporate may be established and the various circumstances which may provide the impetus to the creation of such a body.

They have identified practical problems and their sources. They have suggested solutions. They have identified practical problems and their sources [and] suggested solutions... This book contains an extended analysis of the legal and anthropological issues."

Part I - The Character of the Title

Native Title: The Product of a Recognition Space

Native title as a recognition technique

Recognition and the property law focus

The native title recognition space

Contested meanings attributed to the recognition space

The definition of native title

Recognition and Incommensurability of systems of meaning

Aspects of Native Title Content

Native title is non-uniform

Native title is communal

Native title is inalienable

Native title is subject to future extinguishment

The sui generis rights formula

Reason by analogy to the familiar ('bundle of rights' etc)

Litigation contexts in which content is declared

Procedural context and form of the determination

Identification of the native title group

Recognition of native title sub-groups

The specificity with which native title rights and interests are stated

Evolution in the system of traditional law and custom

Part II - The Legal Framework for Title Management

Overview of the Title Management System

The role of various legislative and private instruments

The prescribed body corporate determination

Prescribed characteristics of the native title corporation

Overview of the functions of the native title corporation

Protection of the native title

Salient features of the incorporation statute

Legislative Policy

The incorporation impasse

Policy foundations of the title management system

The legislative objectives

Overview of the legislative history

The choice between individual and collective title-holding

Parliament's view of the relationship between group and corporation

Responsibility for institutional design

The Proliferation of legal relations between group and corporation

The 'juridification' of indigenous relations

Title management and the Racial Discrimination Act

The main policy challenges

The Trust or Agency Relationship

Construction of the trust or agency relationship

Character of the legal interests of group members

Duties of the statutory trustee and agents

Jurisdiction over matters arising under the statutory relationships

The corporation and the declaration of traditional law and custom

Identifying native title group members

Identifying native title rights and interests

May benefits be distributed without reference to law and custom?

Judicial administration of the statutory trust or agency

The Corporation

Foundational problems of the corporate law relationship

The Cultural specificity of the corporate governance model

The governance structure of the ACA Act corporation

Membership of the corporation

The general meeting

The board and its duties

Corporate reporting

The regulator's functions and powers

Administration, winding-up and native title management

Defective corporate transactions

Corporate capacity

Corporate authority

Breach of consent and consultation procedures

Accommodating internal group differentiation

Administrative discretion in the incorporation process

The registrar's protective jurisdiction

Available 'self-help' techniques for securing board representation

Is another incorporation statute more appropriate?

Corporate Activity in the Pre-Determination Period

Incorporation in anticipation of a native title determination

Legal problems encountered by pre-determination corporations

Native title application by corporations

Liability for non-ilua pre-incorporation obligations

The political and economic context of ILUAs

The binding effect of an ILUA: a deviation from contract law

Legal certainty and transaction performance distinguished

Corporation or contract? the politics of choice

The management of mixed obligations and benefit streams

Part III - A Design Process for Native Title Institutions

Introduction to the Institutional design Process

Circumstances and Institutional Setting of the Native Title Group

Broad socio-economic and socio-cultural characteristics of the group

'Structural' features of the native title group

Goals and aspirations of the group

Indigenous organisational culture

The native title institution with indigenous society

The corporation as a site of conflict

Competition for resources

The vulnerability of indigenous corporations

Balancing local and regional imperatives

Localism with indigenous societies

Relationships with regional indigenous organisations

Finance and support for native title institutions

Institutional Facilities and Design Principles

An anthropologically informed analysis of legal facilities

The legal facilities and the native title recognition space

Facility 1: Legal capacity

Facility 2: Legal authority

Facility 3: Identifying the members of the native title groups

Facility 4: Identifying the nature and extent of the rights and interests

Facility 5: Decision-making procedures

Facility 6: Dispute resolution procedures

Facility 7: Accountability to the group and to external parties

Facility 8: Allocation of liability for native title related acts

Eight principles of institutional design

Practical Illustrations of the Design Process

Legal constraints and 'reflective equilibrium' in the design process

A design typology

Type 1: Agent corporation with 'participatory' membership

Type 2: Agent corporation with 'representative' membership

Type 3: Trustee corporation with 'participatory' membership

Type 4: Trustee corporation with 'representative' membership

Ability of types to accommodate economic and other activities

Table of Cases/ Table of Statutes/ Index

Bibliography (Internet only)

The work will no doubt be extremely influential and is a must read, must own, for any professional working in the area of native title or indigenous affairs. The book is one of a tiny number of serious and sustained academic works about native title in Australia. Although expressly eschewing polemic . . . , the book nevertheless steers a delicate line between instructing on how to work within the existing statutory and administrative arrangements, while still suggesting reform. . . .

A particularly impressive feature of the book is that it describes many phenomena that are experienced by those working in the field of native title, systemises them and deals with them analytically. What has previously been anecdotal, has become the stuff of serious conceptualisation and study . . The work is an undoubtedly impressive achievement." Native Title News, Vol 5

"In their book, Mantziaris, a barrister, and Martin, an anthropologist, seek to redress this neglected area [the question of the legal framework for native title management following a determination of native title in favour of a particular indigenous group].

Part I of their book provides a valuable analysis on how native title may be distinguished from other legal mechanisms for recognising indigenous relations with land. The problem of translating indigenous relations with land into legal rights and interests enforceable within the Australian legal system is also investigated. The current legal framework for native title management is identified in Part II, through an analysis of the formal legislative mechanism created under the Native Title Act (NTA). The limitations of the NTA are also identified. Having investigated and criticised the legislative regime, the authors in Part III develop comprehensive process for designing indigenous institutions to manage native title. They go beyond the limitations of the NTA and seek in their analysis to answer the question 'how might native title institutions be better designed?'

This book provides a comprehensive analysis of an important aspect of native title . . .it is required reading for legal practitioners and others charged with the responsibility of designing indigenous institutions to manage native title, and for law reformers and policy makers with responsibility for the legislation underpinning these institutions."
Australian Law Librarian 9 2001

"There is no other book or paper where the legal and practical issues of the creation or operation of prescribed bodies corporate have been considered in as much detail or with as much insight as they are in Native Title Corporations. Anyone seeking to establish a PBC or to operate within one, and who requires more detail than is in the Guide to the Design of Native Title Corporations, clearly needs to obtain a copy of the book."
B. M. Selway QC, Solicitor General for South Australia 2002 Adelaide Law Review

Top Home