Nettheim, Garth --- "Designing 'Structures' for Interface between Indigenous Peoples and Non - Indigenous Society" [1998] IndigLawB 63; (1998) 4(14) Indigenous Law Bulletin 18

• Designing ‘Structures’ For Interface Between Indigenous Peoples And Non-Indigenous Society

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Designing ‘Structures’ for Interface between Indigenous Peoples and Non-Indigenous Society

by Garth Nettheim

Garth Nettheim is Chairman of the Management Committee of the Indigenous Law Centre. Here he describes a project supported by an Australian Research Council Collaborative Research Grant.

The full title of the project is 'Governance structures for Indigenous Australians, on and off native title lands'. Work on the several components of the project will initially take the form of a series of Discussion Papers to which responses will be sought. This is a summary of the first Discussion Paper which explains the project.

The 'industry partner' is the National Native Title Tribunal, and the investigators are Professor Nettheim, Associate Professor Gary D Meyers (Murdoch University) and Donna Craig (Macquarie University).

The problem is that traditional forms of land ownership and control, under the laws of Aboriginal peoples and Torres Strait islanders, are not designed for interaction with non-indigenous forms of law and government.

The purpose of the project is to develop recommendations for a better 'fit' between the systems. It focuses particularly on provisions in the Native Title Act 1993 (Cth) ('the NTA') concerning 'prescribed bodies corporate and 'representative Aboriginal/Torres Strait Islander bodies'. It extends to a consideration of mechanisms for asserting Indigenous peoples' interests in lands and waters which are not subject to native tide. It is vital that Indigenous Australians have the benefit of appropriate institutional mechanisms through which to represent to governments, developers and others, their essential interests in lands and waters, resources, cultural heritage and the environment.

The elements of the project will include:

• a consideration of relevant international law standards
• an analysis of land-holding and governance structures under Australian statutory land rights acts;
• a comparative study of experience from other 'First World' nations, notably the USA, Canada, New Zealand, Scandinavia and Greenland
• a consideration of Australian experience with the employment of corporation and association laws for Indigenous peoples including recent work by ATSIC in redesigning Aboriginal Legal Service organisations in NSW
• a study and critical analysis of work that has been done to date in relation to 'prescribed bodies corporate' and 'representative Aboriginal/Torres Strait Islander bodies' under the NTA
• a consideration of experience here and abroad of Indigenous control over land use and environmental management in relation to land or waters which are not held by Indigenous people, with particular reference to negotiated co-management regimes.

The challenge is how best to provide for the coexistence of forms of land holding and governance under Indigenous laws with decision-making mechanisms under Australian laws. This is a challenge in terms of legal pluralism and cross-cultural statesmanship. Both systems, Indigenous and non-indigenous, may need to adapt in order to achieve a satisfactory interrelationship.

The principal investigators happen to be lawyers, but assistance will be sought from anthropologists, economists and others, and from such bodies as the Australian Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS), the Centre for Aboriginal Economic Policy Research (CAEPR), Land Councils and others.

Discussion Papers will be circulated to key individuals and organisations as they are completed, and will be discussed at one or more workshops to be held early in 1999.

The Investigators would appreciate hearing from individuals and organisations that wish to be kept informed about the project.

Contact:

Emeritus Professor Garth Nettheim, Faculty of Law, University of NSW, 2052. Phone: [phone] Fax: [phone], E-mail: [e-mail]
or Frith Way, Senior Research Assistant,
Phone: [phone] Fax: [phone], E-mail: [e-mail]