Summary publication

Contents

Introduction

Chapter 1: Nation in dialogue

 

The dialogue with the Parliamentary Joint Committee on Native Title

 

Treating differences differently

The PJC majority report

Applying the test of 'legitimacy' to the NTA amendments

The right to negotiat

 

The dialogue with the CERD Committee, March 2000

 

The standard of equality under ICERD

The requirement of effective participation

 

 

The dialogue with the Human Rights Committee, July 2000

 

The HRC's observations and recommendations in relation to native title

The dialogue between the Human Rights Committee and the Australian government

 

 

Maintaining the dialogue on human rights

The dialogue around reconciliation

 

'Our nation must have the courage to own the truth'

Enlarged notion of terra nullius

Overturning terra nullius

Filling the Gap

 

Chapter 2: Definition and extinguishment of native title by the common law

 

Issues in the Miriuwung Gajerrong case

Impact of developments in the common law upon the human rights of Aboriginal people

 

The right to equality

The right to protection of property

The right to enjoyment of culture

The right to self-determination

Freedom of Religion

 

 

Application of these principles to native title

The common law recognition of native title within a human rights framework

 

Translating Indigenous relationships to land into a bundle of rights

Translating Indigenous relationships to land into a right to land

 

Chapter 3: Native title and sea rights

 

1. Overview of the variety of indigenous traditions relating to sea country

 

Diversity

 

 

2. Relevant international human rights standards

 

Equality

Protection of culture

Self-determination

Other international norms

 

 

3. Common law recognition of native title rights to the sea

 

Evidence in the Croker Island case: a unique and complex system of laws

The Croker Island decision

Alternatives to non-recognition

Conclusion about the common law

 

 

4. Recognition of native title rights to the sea under the Native Title Act 1993

 

Prioritising non-Indigenous interests

Procedural rights

The non-extinguishment principle: s 44C

Subsistence fishing rights and traditional access rights: s 211

 

 

5. The consequences of the non-recognition of exclusive native title rights
Non-exclusive rights

 

Non-exclusive access rights, possible exclusive native title fishery

Exclusive native title rights subject only to innocent passage

 

Chapter 4: Indigenous heritage

 

International discourse on Indigenous heritage protection

 

Human Rights Committee

Report of the seminar on the draft principles and guidelines for the protection of the heritage of indigenous people by Chairperson -Rapporteur Erica-Irene Daes

 

 

Protecting Indigenous heritage in Australia

Protection of Indigenous heritage through native title

 

The common law protection of Indigenous heritage

Limitations resulting from extinguishment of native title

The denial and reduction of procedural rights by the amendments to the NTA

Denial of procedural rights

Reduction of procedural rights

Judicial interpretation of procedural rights under the NTA

The reliance in the NTA upon inadequate protection provided in Commonwealth, State and Territory heritage legislation

Freehold Test

The right to negotiate

Alternative provision schemes

 

 

The protection of Indigenous culture through heritage legislation

The Evatt Report on the Commonwealth Heritage Act

 

Reforming state and territory heritage protection legislation to ensure effective interaction with a reformed Commonwealth Act

 

 

The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

 

Protection of Indigenous Heritage

Self Determination

 

Chapter 5: Implementing the amendments to the Native Title Act

 

Procedural rights

 

Introduction

Significance of procedural rights to native title

Procedural rights in a human rights framework

The extent and nature of the right granted by the 'opportunity to comment' provisions

The time limits governing the right to negotiate

Access to procedural rights and the statutory right to judicial review of a refusal to register a claim

Enforceability of procedural rights

 

 

Procedural rights under the alternative state regimes

 

Alternative s 43A schemes

Section 26A, 26B and 26C Schemes

 

 

The re-recognition of native title representative bodies

Appendix 1:

Submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund

Appendix 2:

Information concerning native title provided by the Human Rights and Equal Opportunity Commission to United Nations Committees in 2000

Appendix 3:

Concluding observations on Australia of the International Committee on the Elimination of Racial Discrimination, 24 March 2000

Appendix 4:

Concluding observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (Concluding Observations/Comments)

Appendix 5:

The international standards relevant to heritage protection