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This, my first report under s209 of the Native Title Act 1993 (Cth) (NTA), is part of a larger project that commenced prior to my appointment as Aboriginal and Torres Strait Islander Social Justice Commissioner in July 2004. The project aims to investigate how native title can be utilised to improve the economic and social conditions of Indigenous peoples' lives.

Chapter 1 : The Consultations 1. Identification of the traditional owner group 2. Governance 3. Capacity development 4. Resources 5. Maximising opportunities for economic development 6. Regional issues 7. Legal issues 8. Effective relationships 9. Engagement between parties Endnotes During the 2004 reporting period I have embarked on a series of consultations focusing on the ideas and…

Chapter 3 : Looking Forward - A Policy Approach to Native Title Public sector reform - a whole of government approach Whole of government and the administration of Indigenous affairs Native Title Policy - A New Direction The Principles - a whole of government approach Endnotes The framework of principles presented in chapter 2 of this Report puts the economic and social development of the

This paper considers how the native title system might operate more effectively to assist traditional owner groups realise their goals for economic and social development. It relies on human rights principles to build a framework for economic and social development. This framework integrates ethical principles, such as equality and respect for Indigenous culture, with the economic and social…

...the Aboriginal and Torres Strait Islander Social Justice Commissioner report on the operation of the [NTA] and its effect on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.

The Native Title Report 2003 evaluates native title as a framework for economic and social development for traditional owner groups. While the legal framework for native title restricts its capacity to improve economic and social conditions for Indigenous people, the Report recognises that the native title agreement-making process provides an invaluable opportunity for States and Territories to…

This is my fifth report to the Australian parliament on the effect of the Native Title Act 1993 on the human rights of Aboriginal and Torres Strait Islander Peoples. In these five years of reporting my main focus has been on the legislative and judicial developments in native title law and the effect of these developments on the recognition of Indigenous rights to land. I have also followed the…

Chapter 1: Native title and the right to development The right to development Non-discriminatory Development Participatory Development Culture and Development Development that realises economic, social and cultural rights Self-Determined Development Sustainable Development A sustainable development framework for native title negotiations Sustainable Development Relies on an Effective Process…

Chapter 2: Native Title Policy - State and Commonwealth profiles New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia Commonwealth Human rights principles require that Indigenous people's relationships to land, based on traditional laws and customs, be given legal recognition and protection. International legal principles also recognise that…

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: