The purpose of presenting these cases in detail is not to make out that indigenous and Western legal systems are universally incommensurable — I do not believe this to be the case — but to point to two problem areas.

The first area is that which current procedures allow outsiders — whether lawyers, anthropologists, lands officers or various representatives of the State — and traditional owners to map out together in the identification phase of a claim.

In Australia today, pre-litigation investigations and negotiations relating to the configuration of claim groups is often exhaustive but, on the other hand, the law is highly prescriptive about the rights that can be claimed and the kind of legal vehicle that will hold successfully claimed rights. This can subject the claims process to a hegemony of legalism that can be intimidatory to both claimants and anthropologists alike, and stands to defeat the close rapport that may develop between claimants and investigators in the earlier stages of a claim (Martin 2004: 38–41).

In PNG, negotiations prior to litigation or registration have often been perfunctory in the past. Far from taking a firm grip of legal processes and standing over customary owners, the State has become enfeebled and is itself the victim of all kinds of rorts. It is notorious that many cases have been pursued by single litigants or very small groups of litigants acting against other parties without their knowledge.^[26] There is no place for anthropologists, or any other professionals, in such actions.

In formal terms the situation has brightened since the 1980s. For example, social mapping is mandated by the Oil and Gas Act 1998 and, although mining sector legislation does not require it, mining companies have adopted similar practices as part of the social impact assessment process since the mid-1990s. However, in both cases outcomes have been less than satisfactory over the longer term (see Goldman and Weiner, this volume).

How could the ‘Nauti’ have been helped? That they won at all is admirable, as they went to court without outside help. But they could have been greatly helped if there had been a way of getting the same outcome without having to pretend they were one of Mr Narokobi’s ‘independent, autonomous social units’ when they were not. As things stand, there is no provision for an alternative way of administering unincorporated rights without incorporating them.

The second problem area concerns the level of assistance to which customary owners can get access to help them properly ‘operate’ their native title, or recognition of customary title, once they have it.

‘Nauti’ quickly ran into difficulties because they were unable to devise governance procedures for the very few tasks that they needed to carry out in the years after 1987 — namely, holding simple meetings and distributing very small amounts of lease fees. A government liaison officer was available to them as a mediator, but he had few resources. For example, he had irregular access to a vehicle but his clients lived several hours’ drive from town without means of communication with one another.

The Meriam do not need to be told of their litigious reputation and they are well aware of the predicament they find themselves in. In short, it is that the Mabo case says traditional ‘laws and customs’ should now govern land dealings among themselves, including dispute resolution, but it is not proving easy to adapt traditional ways to the point where any matters can be handled decisively and quickly. In Australia, no money is available to manage successfully claimed native title because PBCs are not funded.

Personally, I was struck by the directness of the question which George Mye OAM, a well-known Eastern Islands elder first elected to Mer Council in 1955 (Beckett 1963), asked me when he found out I had worked in PNG: ‘Can people in PNG own land individually?’ While I could easily answer ‘yes, of course’ from the customary point of view, a lengthier response would have been that the legislative response to land matters in PNG, as in Australia, places an equally heavy emphasis on the collective ownership of land. This was the gist of Mr Mye’s complaint: that Islanders had campaigned for years for autonomy, but when the government had finally given ground in the wake of Mabo, it was to give them something they did not want in the form of the forced collectivisation of traditional land.^[27]

How can the Meriam be assisted? This is not hard to set out. The Meriam are a case not readily covered by Sutton’s two-tier conceptualisation of ownership, if it is ‘proximate’ ownership that matches with a determination of title.^[28] In order for this model to fit their case, a ‘family’ tier of ownership has to be envisioned. Meriam operated customary transactions perfectly well for the first 100 years after annexation because the Murray Island Court made it as if this tier was recognised by Australian or Queensland law. Native title has confused the situation and the community has yet to find a new institution to replace the old court.

It is not possible to be overly prescriptive about a replacement, but one attribute is easy to set down. Most disputes are inheritance disputes compounded by ambiguities over the intentions of the deceased, the recognition of the rights of adopted children; and the caretaking of land belonging to absentees. In these cases the ability to maintain proper documentation is an excellent aid to straightening out what particular disputes are about.

The Meriam themselves have evinced an avid interest in documentary evidence for a century. Oral testimony has been largely replaced in favour of the presentation of documents — typescripts, photocopies of genealogies that every family knows its place in,^[29] and copies of wills and letters. Unfortunately, such official records of new disputes that are made have a typical lifespan of 2–3 years. Supporting documents disappear with the building contractors whose work could not proceed, and council, Island Coordinating Council or Torres Strait Regional Authority correspondence rarely survives beyond this time as offices are moved and files put in storage or just lost. The poor standard of documentation in the post-Mabo period means that there is a weak ability to track current disputes as they arise. A first step towards getting to grips with the 50-case backlog of disputes is to rectify this situation, and the failure to do so is primarily due to the inability of the various tiers of government to grasp the problem (Burton 2005).^[30]