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Chapter 4: Native Title and Agreement Making: a Comparative Study Canada The legal and constitutional context The Comprehensive Land Claims Settlements Process: General outline Comprehensive Agreements - issues and contemporary developments. Treaty-making in British Columbia - an incremental approach Self-government Implications from Canadian Law and Practice for the Australian Situation The…

The year under review in this, my fourth Native Title Report, is a year in which the High Court has handed down its decision in several significant native title cases thus elucidating the principles upon which the recognition and extinguishment of native title are determined. 2002 marks the end of a ten year period since the Mabo decision [1] first introduced the dual concepts of recognising and…

Native title is an intersection of two different legal systems and cultures. The way in which Australia chooses to give recognition to the relationship that Indigenous people have with their land, and the range of options it considers to express that relationship, are matters that affect the human rights of Indigenous people.

The two recent High Court decisions in Miriuwung Gajerrong [1] and Wilson v Anderson [2] have clarified some important issues regarding the extinguishment of native title under the Native Title Act 1993 (Cwlth) (‘NTA’) and its relationship with extinguishment under the common law. They also provide some important insights into the meaning of discrimination as it responds…

The resolution of the debate as to whether the extinguishment of native title by the common law and the Native Title Act 1993 (Cwlth) (‘NTA’) is racially discriminatory, depends upon the interpretation given to its two essential components: extinguishment and discrimination. The interpretation that the High Court has given to the extinguishment provisions of the NTA and its relationship…

The reasoning of the High Court in Wilson v Anderson [1] and Miriuwung Gajerrong [2] provides a comprehensive analysis of the operation of the Native Title Act 1993 (Cwlth) (‘NTA’). It is detailed and legally complex. In discussing NSW crown land legislation, Justice Kirby made the following observation about the NTA and the native title system:

In the past 12 months the High Court has handed down several significant decisions which clarified the principles upon which the recognition and extinguishment of native title are determined. These principles are set out and discussed in the first three chapters of this report. In clarifying these principles, some of the Judges of the High Court have been mindful of their effect on Indigenous…

Miriuwung Gajerrong [1] reiterates the principles which guide the High Court’s interpretation of whether laws of the Commonwealth, State or Territory are discriminatory under the Racial Discrimination Act 1975 (Cwlth) (‘RDA’), particularly as they apply to legislation which authorises dealings with land. These principles are based on the High Court’s decisions in Gerhardy â€¦

It is important to note that most tenures and interests continue to affect native title even after they have ceased. So, for instance, an area of land may currently be unallocated crown land, but all previous tenures/interests in that land will have permanently affected, and possibly extinguished, native title rights (unless the land comes within the few exceptions under the Native Title Act 1993…

In the High Court’s formulation of native title in Mabo (No 2), [1] delivered on 3 June 1992, it was made clear that in the past, governments could validly grant interests in land that would extinguish native title. These grants could be made without payment of compensation to native title holders. [2] At least that was as far as the common law was concerned. The Court did not need to…

The Social Justice Report 2002 discusses initiatives currently underway or in development at the federal, state and territory levels in relation to Aboriginal and Torres Strait Islander Affairs. The report commends the following positive developments in Indigenous policy:

This document is intended to provide a brief overview of the main findings of the Social Justice Report 2002. See the executive summary of the report for a more detailed description of the reports findings.

back to contents Native Title Report 2001 Chapter One: The Right to Negotiate and Human Rights Introduction The right to negotiate and human rights The right to negotiate The Administration of Mining Future Acts in the Reporting Period The Expedited Procedure and the Objection Procedure - The Federal Court and the National Native Title Tribunal The expedited procedure Government obligations…

The recognition and protection of native title and the participation of Indigenous people in decisions affecting their land are critical priorities within a human rights framework.

back to contents Native Title Report 2001 Chapter Three: Negotiating co-existence through framework agreements Introduction Native title interests are entitled to the same level of protection as non-Indigenous interests Negotiation of agreements should encourage and allow continued observance of Indigenous laws and customs Negotiation of agreements should recognise Indigenous governance…

Review the recommendations from the Native Title Report 2001.

Native title agreements are emerging as an important tool in defining the rights of native title holders over their land. As Aboriginal and Torres Strait Islander Social Justice Commissioner I welcome negotiation and agreement-making as a way of establishing a stable and enduring basis for a dynamic and long term relationship between Indigenous and non-Indigenous people over land. However I am…

Chapter 1: Nation in dialogue The application of human rights principles to native title has been the subject of an ongoing dialogue taking place both nationally and internationally in the reporting period. This dialogue has occurred between the Australian government and and two UN treaty committees, on the Elimination of Racial Discrimination (August 1999 and March 2000) and the Human…

Chapter 2: Definition and extinguishment of native title by the common law This year the High Court will decide fundamental issues about the nature of native title and the extent to which it is protected by the common law. In hearing the appeal of the Miriuwung, Gajerrong and Balangarra peoples from the decision of the Full Federal Court in Western Australia v Ward (1) the court will be…

Chapter 5: Implementing the amendments to the Native Title Act In 1999 and 2000 the Committee on the Elimination of Racial Discrimination (the CERD Committee) and the Human Rights Committee (HRC) of the United Nations both criticised the 1998 amendments to the Native Title Act 1993 (the NTA) as limiting the rights of Indigenous people. (1) The committees found that the amendments were