The Law of the Land: A Review Article

Book Review Article

The Law of the Land: A Review Article1

C. Mantziaris and D. Martin, Native Title Corporations: A Legal and Anthropological Analysis. Sydney: The Federation Press. 2000. xxxiv + 366 pp., bibliog., index. AUD99.00 (Hc.), ISBN 1-86287-372-0.

James F, Weiner Anthropology, Australian National University

This is a review article of the book Native Title Corporations: A Legal and Anthropological Analysis from the point of view of anthropology. I begin by highlighting the development of Anglo-Australian social anthropology from such figures as Radcliffe-Brown and Fortes, who were heavily influenced by regulatory and normative models from the domain of legal and judicial scholarship and speculate on the contemporary conditions by which this original social anthropological metaphor has apparently achieved a new literalisation. I criticise the legalistic appropriation of anthropological and ethnographic methodology that this book makes explicit, and finally, I express scepticism for the future success of the prescribed body corporate, as described in the Native Title Act (1 993), as a model for the possession, transmission and elaboration of indigenous rights to country.

Introduction In today’s world of Aboriginal anthropology, much research carried out is in support of the requirements of the Native Title Act (1993) [NTA]. As a result of this, anthropologists have had to work, in greater numbers and under closer and more continuous conditions, with the legal practitioners who undertake to make applications conform to the requirements of the NTA and who subsequently pursue legal negotiation of native title claims with non-indigenous parties, both within and outside of court.

Native Title Corporations is the most recent result of this growing interdependency of anthropology and law in this domain of Australian anthropology. The book is a comprehensive inspection and analysis of the implications of certain parts of the NTA and the Aboriginal Corporations Act (1976). It is concerned with those parts of the Acts that stipulate a certain form for native title claimant groups, chiefly subsequent to a native title determination. It ‘analyses the current legal framework for title management by [Aboriginal] corporations . . . and analyses the network of legal rights and obligations that the new title management system has brought into being’ (p. xvi).

THE AUSTRALIAN JOURNAL OF ANTHROPOLOGY, 2003,14:1,97-110

98 THE AUSTRALIAN JOURNAL OF ANTHROPOLOGY

And yet the perspective of the book is primarily that of the NTA qua law-as the authors say in the Preface, the book offers ‘an analysis of the positive law which is informed by an anthropology of contemporary indigenous society and public policy’ (p. xvi). They go on to say that ‘we have situated ourselves in a paradigm of scholarship which gives priority to the analysis of positive law rather than the concerns of legal theory and the politics of native title’ (p. xvii). But they also maintain ‘that a greater sensitivity to anthropological observation may assist in an understanding of the content and structuring of the native title “recognition space”’ (p. xviii).

I myself approach this venture from the point of view of an anthropologist who has both a professional interest in the subject (as a practising consultant who is engaged in several native title claims at various stages) and an academic interest in the convergence of law and anthropology. From this position, we begin by acknowledging the figurative relation between Law, literally as a body of enforceable regulations, and the attribution of regularity and pattern in human behaviour in different cultures. I thus accept, as this book makes manifest, that an important goal of contemporary social anthropology is the search for what is conventional, normative, and law-like, as well as what is creative and transformative, in social life, and most importantly, the elaboration of dialectic between convention and transformation that generates event and structure. I will therefore be forthright and say that it is the book’s anthropological contribution to the study of contemporary native title in Australia that I am interested in, and what this indicates about anthropology’s current relationship with law, legal practice and legal theory.

I am aware that by focusing chiefly on the anthropological dimensions of this book I may be guilty of not properly considering the authors’ intentions. However, the book is subtitled, ‘A Legal and Anthropological Analysis’, even though it also appears aimed mainly at practitioners in the legal establishment. If this is the case, anthropologists might well ask whether we wish the anthropological dimension of native title to be so wholly swallowed up by its legal exigencies. I admit that these dimensions are the dominant ones-but that doesn’t mean that anthropology should absolve itself of demonstrating how the legal dimension of native title fails to account for much that anthropologists have laboured to learn about Aboriginal cultural and society for a long time.

From this point of view, although the book is exhaustive in its treatment of these aspects, it can be said to be dealing with only a small part of the total native title process- and in fact, part of what I will argue here is that as a work purporting to label itself ‘a legal and anthropological’ analysis, it gives too much weight to the parceling of the Native Title phenomenon into components of a piece of legislation. It does not go far enough to consider, either legally or anthropologically, what we anthropologists might want to call native title as a ‘total social fact’ or as a ‘total institution’. By a total institution, I mean a cohering of certain principles and theories of social and cultural definition, a cohering which defines a total life-space, and not just a compartment of it. The topics I have chosen for extended discussion here are those which bring this total institution into view.

The recognition space I begin, as do the authors, with the idea of the ‘recognition space’. This concept was developed by Aboriginal lawyer and activist Noel Pearson and plays a critical role in this book. The authors are careful to restrict the definition of the concept of recognition space to the narrowly-construed set of native title rights and interests produced by the legal recognition of native title. However, from the total institutional perspective of

THE LAW OF THE LAND: A REVIEW ARTICLE 99

anthropology I take here, we must consider the wider implications, grounding and effects of such a concept. The problem with the idea of the ‘recognition space’ is that it assumes a discrete world of Aboriginal and Western (Euro-Australian) culture respectively. It also assumes that the constitution of Aboriginal culture is uniform in relation to this external culture of the dominant Euro-Australian society. This is unsustainable-even in remote areas where ‘Law’ is strongest, contemporary Aboriginal custom was and continues to be maintained within the framework of Australian endo-colonial law and administration.

Of course we must be aware of the vastly different qualities of Aboriginal-Australian relationships in different parts of the country. Aboriginal inhabitants of outstations in the western Kimberleys seem indeed to be in another world than that of the Canberra-based officers of Department of Reconciliation and Aboriginal and Torres Strait Islander Affairs. But even the outstation dwellers have to deal with local officers of the Community Development Employment Program (CDEP), the Aboriginal and Torres Straits Islander Commission (ATSIC) and their Native Title Representative Body (NTRB), among other institutions. They receive proposals from business and state developers for projects on their traditional country. They receive welfare payments and utilise health and other community services. In this sense, Euro-Australian and Aboriginal societies occupy the same life-space. The ‘translation’ process referred to by the authors is a practical effect of this life-space as well as one of its constitutive activities. Its effects are already predicated on the inter-penetration of the various systems of meaning occupying this space. The two domains have been evolving against each other, albeit it in asymmetrical ways, for a long time, and it is this historical understanding of the nature of the Aboriginal-Australian conjuncture that must ground the elaboration of the ‘recognition space’ model and of native title itself.2

However, the value of this concept, as correctly identified by the authors, is that it does not confuse the native title ‘rights’ and ‘interests’ recognised as an instance of traditional Aboriginal relation to land:3

The product of recognition is the native title itself. This comprises the rights and interests enforceable within the Australian legal system. To refer to the subject of recognition as ‘rights’ and ‘interests’ conferred by the system of traditional law and custom is to confuse the terms of the distinction (p. 10).

Further, the recognition space is not, of course, restricted to what is given legal credence by a body of law. Because it grows out of what we might call in anthropological terms the practical conjunctures of the life-space, this recognition space is created, tacitly or otherwise, in any attempt at the analysis of another culture or social system (including every ethnographic monograph, however rare they are these days). The subsequent narrowing down or selective discrimination by the analyst from among a range of empirical phenomena is part and parcel of any attempt at social science analysis. The effect of the recognition space is summed up in Merkel J’s comments in the Yarmirr case: ‘the [native title] right does not come into existence as a legally enforceable or protected entitlement until it is recognised, as such, by the common law’ (p. 18).

‘Traditional law and custom’ under Mantziaris’ and Martin’s treatment then become not so much an object of translation as of compartmentalisation-they are consigned, by way of the inverted commas that the authors put around them, to an accumulating set of non- Western juridical and legal definitions, rather than as a cultural system in need of description and analysis. For example, the authors remark that ‘The complexity of intra- indigenous relations may create problems in the identification operations practised by both


trustees and agents’ (p. 158) and ‘The relationship of individual and collective rights within any particular instance of native title has not been explored adequately by the law’ (p. 158). This problem is again acknowledged at the outset by the authors on p. 10:

The recognition space is restricted to the description of a particular Iegd phenomenon . . . [It does not] address the broader proccss of social, political and economic interaction between indigenous and non-indigenous societies.

But one wonders, then, what this monograph is then expected to contribute to the ‘anthropological’ analysis of native title corporations, if it does not explore this domain (though there is a brief discussion of types of contemporary Aboriginal land-holding groups on pp. 169-72). A similar cordoning off from analysis by use of quotation marks (e.g. p. 185) is employed for the concept of the ‘politics of representation’ that is assumed to operate within contemporary native title groups-as if the authors have consigned the inspection of these processes to the anthropological too-hard basket. But what if the so- called ‘politics of representation’ is an effect as well as a contributing external variable to the development of native title procedures and corporations? This would then be the anthropological task: to look at the NTA not as positive law only-though this task is necessary and must take place-but to see the legislation itself as a social ‘act’, embodying the interests of its architects and the persons and institutions which maintain it, and which institutionally elicits certain responses from various parties in a complex contemporary social field.

This point is related, perhaps, to the observation, implicit for the most part, that unlike North America, Australia has resolutely resisted the recognition of a ‘dual system of law’, existing side by side and acknowledged to be at least in some respects, incommensurable. And yet the authors state that it is precisely this incommensurability which the law attempts to ameliorate (p. 3). The authors, by way of a footnote, refer to this emergent post-colonial space of Aboriginal and Euro-Australian contact as ‘hybrid’ (p.3, n.2).

Another reason I call the NTA a ‘total social fact’ is because it affects every act of an Aboriginal person’s life. The notion of the recognition space occludes this very important aspect of the development of the institution of native title in Australia. Aboriginal people themselves maintain that ‘land is life’, and that hence all law and custom must relate in some way to an issue of emplacement on land. Every act, gesture, or utterance by an Aboriginal person can be construed, thus in one way or another, as evidence for or against the continuity of Aboriginal laws and customs.

Further, the NTA has created a huge bureaucratic flow of paper, which contours the directions that Aboriginal responses take.4 At the Gurang Land Council for which I have worked as a consultant since 1998, one of the smallest NTRBs in the country, each month thousands of official notifications come to the office demanding at least an acknowledgement from the registered native title holders, if not a more substantive response. If native title claimants, or their NTRBs, were to take care of each and every piece of official correspondence and communication required of them under this regime, they would become in effect full-time professional Aboriginal persons. The dissatisfaction with this image of an Aboriginal conjunctural future is, I think, partially what has prompted discussions concerning the current status of assimilation in the national media in April 200 1, about which more shortly.


Incommensurability Incommensurability between the Aboriginal system and the Euro-Australian system is accepted as a given in this analysis, even though the argument put forth concerning the ‘recognition space’ to a large extent erodes the radical nature of the incommensurability being assumed.

Elsewhere (Weiner 1998, 2001), I have described the effects of such incommensurability between the Western model of the corporate, liberal autonomous individual and counterposed indigenous notions of personhood in a very different post- colonial context, that of Papua New Guinea, where customary land ownership is protected by national law. The responses of indigenous persons and groups to the demands made of them by legislation of this sort are particular, historically and structurally, and are a particular feature of their contemporary ‘culture’. The incommensurability itself is therefore generative of action, event and restructuration in a particular cultural and historical context. I do not deny, as I have said in those same articles, that the demand for such responses have overall had negative effects on the functioning, broadly conceived, of indigenous groups and land-holding groups in particular. Nevertheless conflict and dysfunction themselves have evanamental, structurating properties at the level of total social systems.

I thus point out in this context that the authors’ assumption of incommensurability emerges as a block on any hrther progress in the ‘reconciliation’ of Aboriginal and Euro- Australian rights. First of all, the sheer fact that hundreds of cases involving the elucidation of all aspects of Aboriginal culture, not just native title, have gone through and continue to stream through the Australian courts is itself an impressive account of just how the two sets of interests have been and continue to be defined precisely with respect to each other. Second, it must surely be acknowledged that Aboriginal persons must be allowed to partake of any technological advance that promotes, protects and re-invigorates what they perceive to be their culture and especially those parts of it they feel are most important to the maintenance of their identity as Aboriginal. The assertion by the authors that Aboriginal cultures are predominantly ‘oral’, and thus constituted differently from the dominant textually-oriented Euro-Australian culture (p. 41) is true to some degree, if one considers the majority of Aboriginal Australian persons. But it forces us to ignore the impressive advances that Aboriginal communities have made with the help not only of the written word, but of highly advanced forms of electronic comm~nication.~ These advances are neither incidental nor irrelevant to the progress of native title as a total social fact- they are the foundation upon which its future efficacy for Aboriginal people undoubtedly rests. As an example, the use of widely available genealogy and family-tree computer programs is now not uncommon among Aboriginal claimants I have worked with in central and southeast Queensland. Often I begin my own work on family connections with quite comprehensive genealogical diagrams prepared by the claimants themselves.

Thus, the authors are not entitled to see the ‘transformation of practices and values generated through the direct interaction of people, to practices and values generated from the exegesis and interpretation of written texts’ (p. 41 -42, emphasis added) as a negative influence on the integrity of Aboriginal social and cultural practices. Especially in native title cases currently in process in so-called settled Australia, Aboriginal peoples’ own inspection and exegesis of their predecessors’ historical and ethnographic records is part and parcel of the impetus towards reconnecting with country and traditional law and custom that itself has been triggered by the enactment of the native title legislation?


Juridijlcation The authors further discuss this trend in Part I1 under the rubric of ‘juridification’ (p. 107)’ This they define as ‘the tendency, within modem legal systems, towards the increased use of positive law to identify and enforce obligations deriving from social relations hitherto considered to be non-legal’ (p. 107). It is not altogether clear to me how ‘modern’ this tendency is, since it has been a central result of the Western appropriation of the non-Western world since the beginning of the colonial period, if not the Roman period. Further, as a social analytic, it is subsumed within the anthropological methodology of identifying all that is categorical, prescriptive and normative in social life and thus is inextricably embedded in the anthropological approach to identifying native title claim groups and their practices from the start. In places such as south and central Queensland, where native title groups are not just reclaiming land but reclaiming some contemporary form of Law from which they were also dispossessed, the juridification process might be an important moment in the Aboriginal reculturation of these new institutions and categories (see also p. 1 15).

In sum, there must surely be vastly different degrees of incommensurability from region to region within Australia. The kinds of acculturative and assimilative pressures that Aboriginal people in settled Australia have undergone are markedly different than those experienced by communities in more remote parts of Australia. This is acknowledged by the authors on p. 12 1. But what could be meant when they warn: ‘Juridification raises the concern that the underlying social relations may come to be distorted or dominated by legally enforceable expressions of the same relations’ (p. 127, emphasis added). A circularity is introduced here: First, if the ‘underlying social relations’ are clear and identifiable, then they are capable of summary in categorical form. Juridification does not in itself adulterate or alter them. Second, to repeat a main point of the critique I wish to pursue here, how external is the domain of Euro-Australian law to the development and transformation of Aboriginal social and political structures? Does the addition of outside components to such structure make them any less ‘Aboriginal’ over time?x At an early stage in Australian history, we may feel that the ‘problem of the Aborigines’ called forth the creation of juridical techniques for managing them. But perhaps these days, where some amount of power and autonomy has been regained by indigenous Australians, it is also the indigenous perception of the effects of ‘juridification’ that stimulates the response of ‘Aboriginality’.

The asssumption of being law-like On page 35, the authors address the question of what it means to assume that any aspect of human behaviour is rule-governed, or that the notion of ‘following a rule’ is a useful heuristic in social science description and explanation. The authors acknowledge a crucial distinction, which goes a long way to providing some ethnographic foundation for the assumption of incommensurability-that in Aboriginal culture, the Law or Dreaming is not something artificial or man-made but is part of the fabric of the world wrought by the ancestral creator beings. For Euro-Australian culture, on the other hand, Law is something that is consciously wrought by the agency of humans.

However, to make this distinction is not to dismiss the anthropological search for what is ‘law-like’ or regular within any given human social grouping. The so-called ‘jural’ domain made famous by the post-Radcliffe-Brown generation of British-trained social anthropologists was exactly an attempt to define what was regulated and law-like without


necessarily being codified in written Fortes (1 969) explains the meaning of jural with reference to its origin: jus or ius of Roman Law: the unwritten part of the law, as opposed to lex which embodies more a legislative declaration or enactment. The lack of a Western-style concept of law does not mean that the anthropologist or the legal theorist is not obliged to contrive a catalogue of norms, rules and other regulatory principles that are avowed by people as playing a determining role in their everyday life. The authors state on p. 140 that ‘the complex and often fluid nature of indigenous laws and customs may hinder the corporation in determining matters in a way that will enable it to discharge its duties under the statutory relationship’. But it is not the laws and customs themselves that are ffluid’ or ‘complex’, but our glosses and interpretations of them. This is true even in the authors’ own terms, since they start with the notion, embedded in the concept of the recognition space, that they are engaged in a translative endeavour. It may very well be true that the law of mother-in-law avoidance is something that was laid down in ancestral times by non-human creator beings. However, contemporary human beings must order their behaviour according to their human cognisance of such a rule. Thus, the absence of consciously fabricated laws does not permit a wholesale dismissal of the search for what is patterned and normative in any given social grouping. This, the authors note (see p. 38), was acknowledged by Toohey, J. in Mabo (No. 2). The authors it appears call this more general regularity effect of human perception the ‘pragmatic’ approach to incommensurability (p. 32 ff.).

The loss of native title rights One of the consequences of rights being so objectified is that the possibility and circumstances of their loss, extinguishment and lapse also becomes objectijed at one and the same time. When the scope for what constitutes and supports native title is narrowed down, then the supporting life conditions and body of generationally-reproduced culture becomes a matter for selective filtration-and as has been the case in the Yorta Yorta case-this has resulted in an overall dimunition of what the public and the legal establishment recognises as the total condition of recogniseable Aboriginality in Australia. This has been borne out in court cases in New South Wales, astutely mentioned by the authors on pages 28-29: In Commonwealth v Coe (2000), the court rejected that the Mabo decision had implications for the recognition of Aboriginal sovereignty, and in Walker v New South Wales, the court denied that traditional Aboriginal rights and interests other than those recognised with respect to native title were given legitimacy as a result of Mabo.

But this also has implications for the recognition of native title rights within the group. On pp. 114 ff., the authors discuss the possibility that the corporatisation of the native title holding body may render the exercise of individual rights questionable and perhaps even illegal. The authors thus are concerned that ‘It cannot be assumed that the members of the native title group will act in unison in native title related matters’ (p. 149). On the other hand, they define a native title group as a ‘structured collectivity whose composition, structure and bounds over time are defined by the communal system of traditional law and custom’ (p. 166). Again, from my avowedly anthropological perspective here, it is the ethnographic particulars of ‘acting in unison’, and the way in which contemporary processes of decision-making embody Aboriginal sociality that needs a more substantive assessment. lo


Conflict in recognition of native title rights The authors state on page 1 1 that certain ‘indigenous groups may seek recognition of their own discrete native title as response to conflict within the indigenous polity’. Now this points to the basic ontological problem that the authors face squarely, it must be said, but do not resolve, because the analysis is predominantly legal rather than anthropological and as such already assumes the realm of positive law as a given in the human governance of and objectification of social life. The basic ontological problem is that these conflicts may in most instances be created by the NTA and the activities and strivings it elicits and engenders. The authors recognise this on page 192:

. . . the internal structure of the native title group will be defined by intra-group relations under the particular system of traditional law and custom. Secondly, the native title determination will often create formal classes of legal rights and interest by recognising this internal differentiation and conferring defined aspects of native title on specific sub-groups of a larger claim group.. . . . . traditional law and custom is not the only source of differentiation within a

native title group. The origins of contemporary cleavages and disputes between individuals and sub-groups often lie in the ‘politics of identity’ and competition for resources within an often factionalised indigenous polity.

The question of whether these internal structurings and conflicts exist prior to the shape that the native title process gives them is legally as well as anthropologically the question at issue. How do we decide what is and what is not a part of ‘law and custom’, traditional or otherwise, under these circumstances? Why are the ‘politics of identity’ cordoned off as something outside the evolution of this law and custom? The case of Shaw v Worf; in which a person was challenged to prove their Aboriginality by another Aboriginal person, and the more recent cases of Risk and Martin, were created by the Native Title Act-they were not solely generated mi generis by the conditions of possibility of traditional Aboriginal law and custom. Thus the authors admit, ‘ . . . the context of native title.. . may require an authoritative declaration of traditional law and custom and its application to the facts of the case’ (p. 164).

A relational definition of rights The analysis advances our understanding of the nature of inter-cultural and post-colonial landscapes by using the language of relationality. It is an indigenous system of relations- i.e., between persons and land (and waters) and between persons and persons with respect to that land (and waters)-that is given recognition by the native title legislation. It must therefore also recognise that it is part and parcel of, both a ‘model of and a model for’, the relations between indigenous and non-indigenous persons and property relations as well.

There is a hrther implication of this, which concerns the relation between individual and communal native title rights that the authors discuss in chapter 2, ‘Aspects of Native Title Content’. A relational view of rights implies that differential rights within the claimant group must be enforceable to the same extent as they are between the claimant group and non-claimants. But this is the meaning of in rem-rights are held ‘as against the world’, rather than as an aspect of a certain kind of relation. So the very distinction between individual and collective or communal rights erodes the relational approach to the definition of native title rights.


This, by the way, was fundamental to the structural-functional theory of social relations

... it is a procedural postulate that everything we seek to analyze in social anthropology can be seen as made up of an internal structure relatively to an external structure and that the two are in a relationship of contraposition. (1969:92)

and the jural realm. In Kinship and the Social Order, Meyer Fortes wrote:

Under this view, the transition between relations between indigenous persons and property is not discontinuous with their relations with non-indigenous persons and property-and hence, the ‘recognition space’ as a distinct zone between ‘two worlds’ begins to expand and become attenuated as a distinct zone. There are not two worlds with an incomplete overlap; there is but one world wherein sojourn actors embedded in various and distinct social relations which are nevertheless coterminous and contiguous.

If that it is case, then the boundary between what is ‘internal’ to any Aboriginal community and what is ‘external’ to it is not absolute. It is rather a perception in the process of establishing such contrasts. The inability to resolve the implications of their own avowed relational approach to the law-like also leads the authors to accept the imposed absolute distinction between external and internal relations of the native title claim group: ‘It might be prudent for legislative policy to distinguish more clearly between legislative intervention in aid of the management of native title and legislative intervention addressing intra-indigenous relations’ (p. 128).

‘Allowing the native title group greater freedom of institutional design might allow its members to decide how much of its traditional law and custom needs to be brought into the title management system and how this is to be done’ (p. 128). But if native title is a ‘total social fact’ as I suggest here, then this statement repeats the conundrum of being a little bit pregnant. It is not just the corporatisation of communal life structures that should be examined, but the assumption of the individual as the rights-bearing locus as well (hence the authors’ invocation of the possible conflict between the NTA and the Racial Discrimination Act [p. 1331). ‘Corporate activity of this nature may impact adversely on the maintenance of the system of traditional law and custom upon which the survival of native title ultimately depends’ (p. 135). For example, the authors note:

Many indigenous corporations display a history in which competing factions alternate in their control of the board or ‘fission off to form new corporations. This politics of representation is now beginning to emerge in the design of native title corporations (p. 192).

They therefore suggest that:

The corporate law relationship between the [native title] group and the corporation should merely be used to allow the group members to control the internal governance of the trustee or agent and the identities of the human actors within it. It should not be used to interfere with native title related decisions (p. 193).

But again, only within the conceptual confines of the recognition space could such a partial relationship be sustained between the two domains-they will continue to configure and obtrude upon each other in a total, behavioural, praxical way. The ‘relationship’ between the ‘two domains’ will thus appear to escape the control of the focused-upon ‘partial’ relationship. This collapse of differentiation will stimulate the perceived need for further amendment of the legislation. The authors seem to recognise


this in a limited way when they observe that ‘the conduct of indigenous office-holders will diverge from the type of conduct which the law seeks to effect’ (p. 194).

The issue then is not the form of refiguration of traditional law and custom-it is the degree to which power is being exercised upon the native title holders by the judicial system. The question may not be, ‘is this form culturally appropriate or not?’, but ‘are native title holders being empowered to protect their rights or not?’.

Another way of pointing to the anthropological dimension of this issue is the distinction that the authors point out emerged from the Yanner case, where the majority judgement distinguished ‘socially constituted fact’ from ‘artificially defined jural rights’ (p. 16). In anthropological terms, we might want to distinguish between what is emergent in social life, and what is consciously or deliberately fabricated as a commentary on or a version of it. But of course our recognition of what is socially constituted fact is just as fabricated (for the purposes of analytical reduction and isolation), and what are ‘jural rights’ is just as emergent from the dialectic between analyst’s framework and empirical behaviour. So this distinction needs itself to be recognised for the artificial and temporary one that it needs to be in the course of a social analysis.

Thus, the early assertion in the Mabo case that native title rights and interests were sui generis also leads to the same circularity in the authors’ terms. They cannot be mi generis and relational at one and the same time. If, as they suggest (p. 84), the courts in the future may have to decide on whether a Native Title Prescribed Body Corporate is or is not acting in a way consistent with ‘traditional law and custom’, then this contradicts the courts’ own admission that tradition changes over time, the assumption of incommensurability the authors make, and the sui generis assumption of the origin of native title rights and interests.

Another issue concerning the mi generis origin of native title is the voluntary nature of the native title corporations discussed by the authors (e.g. p. 106). As numerous writers have discussed over the past 100 years, Aboriginal Law is not ‘man-made’: It is something laid down by and through the actions of the ancestral creator beings. Present-day human beings follow, interpret and live the Law but did not ‘make’ it. This is one of the strongest arguments of the book-the point at which the authors question the voluntarist foundations of Euro-Australian corporation law (pp. 184-85). They use this to then call into question the legal assumption of congruence-that the members of a native title group are or will be the same as the members of a native title corporation.

The governance of native title groups and corporations A crucial issue raised in Chapter 6 is that of governance. The authors especially note on p. 186 that the paperwork, accounting and administrative responsibilities demanded of a native title group far exceed the capacity of communities characterised by ‘high levels of residential mobility, poor literacy, and poor understanding of formal legal and administrative processes’. ‘ I

We arrive at an important nexus here, one that indicates the broader debate between the advocates of Aboriginal self-determination and assimilation that have been recently re- ignited. The authors criticise the general meeting-based notion of local corporation governance and question its usefulness for rural and remote Aboriginal native title holding groups. They say

... although meetings are a common feature within indigenous polities, the social meanings attributed to them may not conform with the cultural


understandings upon which the formal model of the general meeting is based. In some indigenous groups, meetings may serve to create and sustain social relations between individuals and sub-groups rather than provide a forum for collective will formation based on the open expression of opinion. In other indigenous groups, meetings may provide a forum for competitive political relations which have little to do with the purpose of the corporation (p. 188).

Here is a space where the anthropological dimension has obviously fallen short of making a critical exposition of the foundations of the legal constitution of personhood, action, and selfhood. For what could be meant by ‘social relations’ except in some marked sense, a voluntarist, contractual sense, as opposed to the praxical taken-for-granted sense through which any public opinion must necessarily be expressed (see Sullivan 1997)? And if a contemporary Aboriginal native title claimant group is not founded on the assumption of political competition, if this is not one of its constitutive conditions, what then are these conditions? The authors evidently feel that political competition, the unexamined ‘politics of representation’, etc. are the constitutive conditions of the contemporary Aboriginal local polity-but in what sense does the NTA either promote or hinder the evolution of these processes? How can one read off from the statutes themselves what response Aboriginal communities will make to them? How does a local version of indigenous connection to country, membership in local polities, and authority continue to be constituted, either in relation to the NTA or not as the case may be? These are the anthropological and ethnographic questions that must now be posed and which this volume has, in an important sense, made visible, but not dealt with anthropologically.

This criticism is further highlighted by the authors’ statement that the appearance of entities to manage native title rights and interests before the determination period ‘falls outside the scope of this work’. But the history of corporate activity must surely play a decisive role in the opportunities and choices available to clients once they arrive at the determination phase. They may have closed off or obviated certain forms of corporate title holding bodies in the course of forming native title holding bodies in the pre- determination stage. Thus, native title is a thoroughly diachronic process, in which the form that title holding bodies take can often change rapidly and unpredictably. Looking at the NTA as a collection of inter-connected statutes only and restricting oneself to one stage in the process is likely to obscure this processual dimension. The authors acknowledge this, for example, on pages 166-67: ‘The managerial procedures by which native title corporations will perform the identification of its members are yet to be determined’.

We can expect that the total scope of the NTA will attract differential emphasis and scrutiny as the native title process itself moves forward. On page 66, the authors state that ‘The internal relationship of group, individual and sub-group rights has received limited judicial attention in these contexts’. The manuscript was presumably written before the Moran (FCA 1637) decision was handed down, and certainly could not have anticipated the recent decisions in Risk (FCA 1589) and Martin (FCA 16), all of which concerned the process of authorisation of a native title claim group and the disputes that arise over this process. That is why the argument presented, for example, on page 72, is circular: ‘. . . the express native title “right to decide who are the native title holders” is to be exercised by the corporation in its capacity as trustee of the right’. The corporation may or may not be constituted according to ‘traditional law and custom’, but it must have as one of its functions the ability to legislate internally on that traditional law and custom. Furthermore, the extent of the body in which communal ‘traditional law and custom’ resides is not clear-is it a single individual, a family group, a ‘tribal’ group of whatever stripe, a


language group, a country-holding estate? It seems the uncertainty here by-passes rather than addresses a whole dimension of anthropological thought on the ‘size’ of a ‘culture- holding’ group. l 2

This was also the issue in the Risk case-there, the Federal Court concluded that a family of eight members, representing a part of a clan of a larger Larrakia group, did not constitute on its own a native title claim group. The authors discuss, beginning on page 98, the pressures on fragmentation of native title claim groups given by the requirement that each native title claim determination be represented by a separate prescribed body corporate. But I do not accept that this is the first point which the claimant group is exposed to fragmentational pressures. Fragmentation, at least in the areas in eastern Queensland where I have worked with native title claimants, begins long before that stage and is intensified when there is a resource, an ILC property acquisition, consultative committee, or some other development over which indigenous people compete for control.

Conclusion The authors state: ‘Native title incorporations have now become the site of a conflict between the general permissive and facilitative trend in corporate law, and an indigenous affairs policy characterised by a “protective” jurisdiction of administrators over the internal affairs of indigenous people and their corporations’ (p. 231). The authors are careful not to invoke wider emotive and politically-charged debates about indigenous assimilation and self-determination. They do assume that it is unfair and imprudent to assume that Aboriginal Australians will find the minutiae of Western corporate, bureaucratic and administrative culture useful and helpful to them in terms of their own social strategies for decision-making. The extent to which indigenous Australians will have to learn how to make the system work for them on their terms is not addressed by the authors. They do end chapter 6, the last substantive critical chapter of the book, with the sentiment: ‘... the important issue is not the degree of “traditionalism” or otherwise of indigenous governance structures. It is the degree of control indigenous people have over the design and operation of their own governance structures’ (p. 239), an assessment of force, sensitivity and intelligence.

Although one cannot disagree with the authors that the native title process itself was not set up as an all-encompassing recognition of the state of contemporary Aboriginal sociality, anthropologists must still approach the phenomenon of the native title process as a total social fact. The book will undoubtedly be greatly valued by members of the legal profession. But since its analysis takes place within the specific discursive world of judgements, decisions and precedents, one wonders whether it will be equally useful to the overworked native title manager, the peripheral consultant anthropologist, and the bewildered principal legal officer, all emplaced in the NTRBs around the country, and all of whom actually have to make the legislation and the native title management bodies work in the world of diminishing resources, far from disinterested indigenous management boards, and the constant demands of government and commercial interests.

I end with an image of a local NTRB as an organisation operating always and necessarily with a partial, incomplete understanding both of a legal edifice that is still in its infancy and rapidly changing, and of the landscape of the total scope of relations within Aboriginal communities, between them, and between Aboriginal and non-Aboriginal actors. I myself have deliberately, and perhaps in the opinion of some unfairly, brought a partial focus to a book that had an avowedly different purpose-to analyse native title


corporations from the perspective of positive law. In doing so, I seek to demonstrate how easy it is for lawyers and anthropologists to talk past each other, and how resiliently different disciplines impose limits to their own mode of theorisation. But perhaps this serves as a better model for the current ‘practical’ state of Aboriginal-Australian reconciliation and understanding against which the guidelines suggested by this book will be deployed in the near future.

1.

2.

3.

4.

5.

6 .

7.

8.

9.

10.

11.

.4cknowledgements: A version of this review was given as a seminar at the Centre for Aboriginal Economic Policy Research, Australian National University, on August 22, 200 1. I would like to thank Jon Altman and John Taylor of CAEPR for that opportunity. I am extremely grateful to Bruce Rigsby, Toni Bauman, Tim Rowse, Derek Elias, Peter Sutton, Ian McIntosh, Stuart Kirsch and Katie Glaskin, and to the authors David Martin and Christos Mantziaris, for comments on earlier drafts of this article. Trigger’s notion of the ‘Aboriginal domain’ ( 1 992: chapter 5 et pussim) preserves the sense of this domain as a product of Aboriginal-white interaction. See also Merlan (1998). For a discussion of the disparity between indigenous social formations and Western corporations, see Sullivan (l997), Lea (2000). The authors make reference to the ‘high level of documentation brought into existence by the native title claim’ (p. 200). The literature on this topic is already vast, and I will here only draw readers’ attention to the Fulbright Symposium held in Darwin in 1997, Indigenous Cultures in an Interronnected World. See the website http://www.uiowa.edu/-anthro/fUlbrightlindex.html. The authors acknowledge in a footnote (p. 45) that: ‘There is a significant lack of published anthropological studies systematically focussing on indigenous relations to “country” in the more densely populated regions of Australia’. The notion of juridification resembles that of ‘entification’ discussed by Ernst (200 1 ) and other contributors to the volume Mining and Indigenous Lifeworlds in Australia and Papua New Guinea. Adelaide: Crawford House Publishing. A point elaborated by Tony Connolly in his paper ‘The Judicial Concept of Tradition in Canadian Aboriginal Rights Law’ presented at the Workshop, Custom: The Fate of Non- Western Law and Indigenous Governanance in the 21” Century. Australian National University, October 1-2,2002. Another anthropological criticism of this work is that it is not suficiently comparative. Although acknowledging the place of the corporate group and the language of jural rights and interests in the development of English-speaking social anthropology in the twentieth century, it does not carry through on exploring the influence of corporate descent group theory on the current native title phenomenon. Even within the confines of Australian Aboriginal societies, the authors assume an ‘intense “localism”’ (p. 40) that implies that ‘indigenous authority operates in contexts and domains which [sic] rarely extend beyond small-scale groupings’. Fred Myers’ Pintupi Country, Pintupi Self (1 986) is a valuable contribution to just this ethnographic issue. These same conditions have created the conditions for widespread abuse and manipulation of the royalty delivery system, also based on the incorporation of local land-holding groups, in the petroleum project area in Papua New Guinea.

12. See Ward v Western Australia (FCA 1478) at 542.


References Ernst, T. 2001. Land, stories and resources: some impacts of large scale resource exploitation on

Onabasulu lifeworlds. in A. Rumsey and J. Weiner (eds). Mining and Indigenous Lifeworlds in Aboriginal Australia and Papua New Guinea. Adelaide: Crawford House Publishing.

Fortes, M. 1969. Kinship and the Social Order. Chicago: Aldine. Lea, D. 2000. Individual autonomy, group self determination and the assimilation of indigenous cultures.

North Australia Research Unit Discussion Paper No. 18. http:l/www.anu.edu.au/naru/DP18.htrnl Merlan, F. 1998. Caging the Rainbow. Honolulu: University of Hawai’i Press. Myers, F. 1986. Pintupi Country, Pintupi Sew Washington, DC: Smithsonian Institution Press. Sullivan, P. 1997. A sacred land, a sovereign people, an Aboriginal corporation: prescribed bodies

and the Native Title Act. North Australia Research Unit Reporf Series No. 3. Canberra and Darwin: Research School of Pacific and Asian Studies, Australian National University.

Sutton, P. 1998. Native Title and the Descent ofRights. Perth: National Native Title Tribunal. Trigger, D. 1992. Whitefella Comin ’. Cambridge: Cambridge University Press. Weiner, J. 1998. The incorporated ground: the contemporary work of distribution in the Kutubu Oil

Project Area, Papua New Guinea. Resource Management in Asia-Pacific Working Paper NO. 17. Weiner, J. 2001. The Foi Incorporated land group: law and custom in group definition and collective

action in the Kutubu oil project area, Papua New Guinea. Stute, Socieg and Governance in Melanesia Project Working Paper No. 01-2. Canberra: Research School of Pacific Studies, Australian National University..

The Law of the Land: A Review Article

Documents

Transcript of The Law of the Land: A Review Article