As a result of certain provisions in the Native Title Act 1993, every successful group of native title claimants must form a corporation to manage the native title. This book combines conventional legal analysis with hands-on anthropology and corporate governance know-how to provide practical guidance on this issue.
This text, while published four years ago, remains the most comprehensive publication devoted solely to issues related to bodies corporate, which are established as a result of a determination that native title exists. ... Despite the technical subject matter, the authors manage to present eminently readable content on what is essentially a highly complex and emerging area of law. - Toni Matulick, Ethos (ACT Law Society), No 194, Dec 2004
PART 1 - 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 2 - 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
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 corporationThe '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
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 representationIs another incorporation statute more appropriate?
Corporate Activity in the Pre-Determination Period
Incorporation in anticipation of a native title determinationLegal problems encountered by pre-determination corporationsNative 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 lawLegal certainty and transaction performance distinguishedCorporation or contract? the politics of choice The management of mixed obligations and benefit streams
PART 3 - 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
This is available only online - see Supplements on this page.
Series: Australian Legal Monograph Ser.
Number Of Pages: 400
Published: October 2000
Country of Publication: AU
Dimensions (cm): 24.9 x 16.1
Weight (kg): 0.66
Edition Number: 1