Indigenous Law Bulletin
by Christos Mantziaris and David Martin
National Native Title Tribunal, Perth (1999)
By Patrick Sullivan
The Guide to the Design of Native Title Corporations by Christos Mantziaris and David Martin is a summary of a much larger work: The Design of Native Title Corporations: a legal and anthropological analysis. This has circulated in draft and will be released later this year. These are the result of a research project of the National Native Title Tribunal (NNTT) and constitute the NNTT’s contribution to a wider research project called Governance Structures on and off Native Title Lands that is carried out jointly by University of NSW and Murdoch University with the NNTT as the industry partner in the project.
The Native Title Act 1993 (Cth) (the ‘NTA’) stipulates that a corporate body prescribed by the Regulations to the Act must administer land determined to be held under native title. There has been considerable concern about how these bodies are to be instituted and function since the Act came into force. Some practitioners may be looking to this Guide as a ‘how to’ manual for establishing prescribed bodies corporate (PBCs). They will be disappointed.
The Guide is valuable because it demonstrates that, given the complexities of the legal and cultural situation, a simple approach is impossible and will not serve the best interests of native title holders in the long run. Rather than offering a technical manual, the authors guide the professional through the intricacies of at least three overlapping legislative regimes – the Native Title Act 1993 (Cth) and Regulations, the Aboriginal Councils and Associations Act 1976 (Cth) (the ‘ACAA’), and the Corporations Law. The Guide assists in understanding the diversity of indigenous governance and land tenure arrangements which are to be reflected in the corporation. It rejects a ‘one size fits all’ approach and offers a design process that identifies and integrates four fundamental decisions to be made about the type of corporation required.
In Part One of the Guide the authors examine the content of native title and the legislative regimes by which it is required to be managed. The authors identify the relevant ambiguities, anomalies, contradictions and discriminatory effects of the overlapping requirements of these legislative regimes. The outcome is considerable uncertainty. This is anathema both to those in the legal and administrative arms of government who cherish a concept of ‘good law’, and to those in the commercial sector who simply want to know who to do business with and what the rules are. This has given rise to optimism that NNTT’s analysis will instigate change to the PBC regime.
In Part Two the authors turn to the question of indigenous governance, principles of land holding and indigenous corporate accountability. The discussion is a significant contribution to an area that has received only sporadic attention from anthropologists in the history of the discipline. It surely must be a priority for research, as contemporary indigenous governance becomes increasingly a live political as well as administrative issue.
The concept of the ‘Recognition Space’ created between two systems is used by the authors to approach the problem of ‘fit’ between confused legal requirements on the non-indigenous side, and complex internal relationships on the indigenous side. They define this as ‘a space within which the Australian legal system gives formal recognition to the relations between indigenous people and their physical environment (eg land and waters), which have been defined by the traditional laws and custom of the indigenous group’. Noel Pearson, former Director of the Cape York Land Council elaborated this notion at the Land Rights – Past, Present and Future conference in Canberra in 1996, but the authors have defined the concept for their particular uses.
Pearson’s original introduction of the term was a bold attempt to alter the ground rules for proving native title. His thesis was that native title was neither Aboriginal nor non-Aboriginal title, but occurred in a recognition space where the two systems of law and culture intersect such that the members of each are able to give credence, or recognition, to concepts arising in the other. Martin and Mantziaris, on the other hand have borrowed the concept and honed it down to simply mean, paraphrased, ‘ a space where Australian institutional law recognises and reflects the property relations arising from Aboriginal law and custom’. This abandons some of the force of the original approach since it assumes a kind of isomorphism between indigenous and non-indigenous systems of law, or at least the relations that arise from them. Further, it assumes that the determinations handed down by the courts will reflect these relations, rather than the competencies of legal counsel, construction of anthropological evidence, the internal political situation of the claimants, particular convictions and constitution of the court from time to time and other factors extrinsic to indigenous law and custom. The authors do show some awareness of this problem, but it has not been allowed to intrude upon the concept of the recognition space.
The difficulty of asserting indigenous rights through PBC's lies not only in devising an appropriate corporate regime, understanding indigenous land tenure in each case, then incorporating a body using the first to reflect the second. The difficulty is that non-indigenous parties bring to the recognition space only that part of their culture that relates to property law and the law of corporate dealings. The indigenous side, on the contrary, brings its entire culture. As the authors say ‘each successful native title claim gives legal recognition to relations ordered by a particular system of traditional laws and customs’. What the PBC regime is saying is that it will recognise the ‘relations’, such as land property relations, but it will not recognise the system of laws and customs that give rise to it. Yet on the indigenous side these are inseparable, since land relations only come into being as part of the complex of kinship relations, knowledge of myth and practice of ritual, or in certain areas, the body of custom which remains as a development of these. Taken together these constitute a polity.
Options for reform need to go beyond mechanisms for corporate instrumental action, and include wider issues of processes for good governance. These require different corporate forms from either trusts or voluntary associations.
This question of governance is brought into focus by the only error found in the Guide. Under the heading ‘Mandatory Legal Attributes of a PBC and their Main Consequences’ the authors state,
The minimum legal attributes of a PBC are prescribed by the PBC Regulations. These may be summarised as follows: A PBC must be a corporation that has been incorporated under Part IV of the ACA Act.
Yet the NTA Regulations do not limit incorporation to Part IV of the ACAA; technically, incorporation may be under Part III, which governs Aboriginal Councils. The error, while significant, is understandable since the NTA, by reference to trusts and agencies, clearly assumes the PBC will be a standard form of corporation. Most subsequent discussion of PBC's tends to assume that they will be Aboriginal Corporations. This is unfortunate since the Councils provision of the ACAA was intended precisely to provide a means of limited self-governance, although it has never been used and is widely disregarded as an anachronism.
There are difficulties with applying the provisions of Part III of the ACAA, but they are not insurmountable. Nevertheless, the issue is not really the applicability or otherwise of Part III. An important lesson to be taken from the Guide’s treatment of this provision is that it is symptomatic of the tendency in indigenous affairs to acquiesce at the reduction of cultural and political rights to the mere administration of a property right. It is pertinent to stimulate discussion about this at a time when the future constitution of Australia is a matter of debate and the constitutional recognition of indigenous people as part of the process of reconciliation is being proposed. While this argument is perhaps not appropriately addressed to the authors of the Guide, reconsideration of the reasons for including the Councils section in the original ACAA must not be glossed over or swept aside in any future proposals to change the Act or the PBC regime.
The task of the authors of the Guide has been extremely complex and, in most instances, carried out with admirable thoroughness. It is to be hoped that the legislative changes that they may provoke will at the very least not further inhibit indigenous peoples’ opportunities to devise culturally congenial systems of internal self-governance.
Patrick Sullivan works as a policy officer with the Kimberley Land Council and as an anthropologist on native title cases.
 Sections 55, 56 and 57 of the NTA govern PBCs. The NTA requires that the group receiving a determination of native title must incorporate in a manner prescribed by the NTA Regulations and must inform the court whether the corporation is to act for them as an agent or as a trustee. The NTA Regulations require incorporation under the Aboriginal Councils and Associations Act 1976 (Cth) (the ‘ACAA’). These sections of the NTA impel native title holders to be subject to general law relating to trust and agency as well as the particular requirements of the Registrar of Aboriginal Corporations due to the wide powers that are conferred on him by the ACAA.
 C Mantziaris & D Martin, Guide to the Design of Native Title Corporations¸ 1999, National Native Title Tribunal, Perth, 1.
 N Pearson, ‘The Concept of Native Title at Common Law’ in Land Rights - Past, Present and Future conference papers Northern and Central Land Councils, 1996, Darwin and Alice Springs, 118-123.
 Above n 2, 31,34.
 Above n 2, 1.
 [The authors of the Guide do not accept that this is an error and argue that their interpretation is correct. Ed.]
 Above n 2, 12.
 This is neither the present reviewer’s view nor the view of the Principle Legal Officer of the Kimberley Land Council who has proposed this provision as a solution for complex groups where considerable planning and monitoring of development decisions are required. The Broome region of Western Australia is one example. G. Irving, ‘Prescribed Bodies Corporate:
The Statutory Displacement of the Right to Manage Native Title - a
Prescription for Conflict’ (Paper presented at the Native Title in the New Millenium,
Representative Bodies Legal Conference, Melbourne, 16-20 April 2000).