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Williams, Kevin --- "Book Review - Australian Native Title Law" [2004] IndigLawB 66; (2004) 6(6) Indigenous Law Bulletin 22

Book Review

Australian Native Title Law

By Melissa Perry and Stephen Lloyd

Thomson Law Book Co, 2003

review by Kevin Williams

Much has been written about native title in Australia since the decision in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 was handed down on 3 June 1992 and the Native Title Act 1993 (Cth) was enacted on 1 January 1994. After twelve years, Melissa Perry and Stephen Lloyd have put together the most comprehensive guide to the understanding of native title with this 956-page tome.

Justice Robert French, the first president of the National Native Title Tribunal, said in his foreword that

[t]he thoroughness and detail of the text makes it an indispensable tool for the legal practitioner in this area of law ... [I]t is an area of law which can be difficult and demanding.[1]

He further states

it is then possible to extract the maximum benefit from the very detailed annotations and commentaries on the provisions of the Act which the book offers.[2]

As the authors have said themselves:

The purpose of this book is to promote a better understanding of a complex and difficult area of law to a wider audience, including those who practise and advise in the area of native title law and those involved in the formulation of policy and reform ... [I]t is hoped [this book] will be of assistance to government, those responsible for administering the Act, Aboriginal and Torres Strait representative bodies, legal advisers, academics and students of native title law, and others with an interest in native title.[3]

The book is divided into two distinct parts. The first section is entitled ‘Native Title: Essential Principles and Concepts’. As well as the brief introductory background to the Native Title Act 1993 (‘NTA’) there are three main chapters.

Chapter One’s focus is the basis on which native title is recognised by the common law; the nature and incidents of native title; the statutory definition of native title; and the relationship between that definition and the concept of native title at common law.

The second chapter deals with the past, intermediate and future act regimes. (I found these confusing back in 1994 however I would like to think that I now have a firmer understanding of this part of the Act.) There is discussion about the validation of past and intermediate acts for the purpose of the NTA and equivalent State and Territory legislation. The interfacing of the Racial Discrimination Act 1975 (Cth) with the NTA is also explained as well as the operation of s 51(xxxi) of the Australian Constitution (which deals with the acquisition of property) and its effect on native title.

Extinguishment of native title is dealt with in Chapter Three. The authors advise that

the purpose of this chapter is to identify those common law principles and statutory rules by which it is determined whether native title has been extinguished.[4]

The chapter concludes with a consideration of the question of whether the Crown may owe a fiduciary duty in relation to dealings in land subject to native title, which may affect the manner in which the sovereign power to extinguish native title might be exercised or give rise to a right to compensation.

Part Two of Australian Native Title Law is titled ‘The Annotated Native Title Act’. The NTA is reproduced with a comprehensive and detailed commentary to the provisions of the Act. This part is particularly useful for practising lawyers who work in the area and is also helpful to those practitioners who come to the National Native Title Tribunal for the first time. Notwithstanding its practicality, it is also a useful teaching tool for academics who teach in the area of Indigenous legal issues.

The NTA is divided into fifteen parts and each one of these commences, in the book, with a commentary which discusses the role and structure of that Part. The commentaries refer to and discuss relevant authorities and extrinsic legislative material. Where significant changes have been made by the Native Title Amendment Act 1998 (Cth), the commentary explains the nature of the amendments and their objects.

Some of Part Two is devoted to sections 47A and 47B of the annotated NTA which deal with ‘reserves etc covered by claimant applications’ and ‘vacant Crown land covered by claimant applications’ respectively.[5] This provides an example of how the authors have, in some of their commentary, sought to identify potential issues and difficulties which might not yet have been the subject of judicial consideration and have suggested possible arguments to assist in resolving these issues.

There is a CD-ROM inserted inside the back cover of the book which the authors advise contains a copy of the NTA and the regulations made under the Act. It also contains a copy of the Native Title (Notices) Determination 1998 (Cth), which is relevant to a range of matters primarily in the future acts regime as well as the full text of most of the native title cases referred to in the book. The authors advise that the disc should be particularly helpful for people who need to undertake research whilst out in the field, or as they describe it, ‘on country’.

This book can be described as the most impressive and knowledgeable text currently available on Australian native title law. It is hoped that, like many textbooks of its kind, it is regularly updated to keep abreast of the constantly evolving case law of native title.

Kevin Williams is a law lecturer at the School of Law, The University of Newcastle in New South Wales. He is a descendant of the Wakka Wakka people.

[1] Melissa Perry and Stephen Lloyd, Australian Native Title Law (2003) ix.

[2] Ibid.

[3] Ibid xi.

[4] Ibid 55.

[5] Ibid 388-396.

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