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Native Title Report 2010:Chapter 2: ‘The basis for a strengthened partnership’: Reforms related to agreement-making

Native Title Report 2010

Chapter 2: ‘The
basis for a strengthened partnership’:
Reforms related
to agreement-making

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2.1 Introduction

For Aboriginal and Torres Strait Islander peoples, agreement-making can be an
expression of free, prior and informed consent and the beginning of cooperative
relationships with governments and other parties.

Good agreements can recognise our rights and facilitate their exercise. In
particular, agreements can enable Aboriginal and Torres Strait Islander peoples
to ‘determine and develop priorities and strategies for the development or
use of their lands or territories and other
resources’.[1]

However, agreement-making does not always result in beneficial outcomes for
Aboriginal and Torres Strait Islander peoples. As David Ritter notes,
‘some deals seem objectively fair, but others have produced clear winners
and losers’.[2]

Indeed, Aboriginal and Torres Strait Islander peoples face significant
barriers to reaching just and equitable agreements. These include inadequate
financial resources and access to appropriate professional advice. There are
also significant barriers embedded within native title law and policy, such as
the onerous burden of proof faced by Aboriginal and Torres Strait Islander
peoples. To facilitate positive outcomes from agreement-making, governments need
to take action to ensure that the playing field is
level.[3]

During the Reporting Period (1 July 2009–30 June 2010),
the Australian Government advanced a number of initiatives designed to promote
broader land settlements and improve the ability of Aboriginal and Torres Strait
Islander peoples to enter into beneficial agreements. While it is arguable that
these initiatives do not go far enough, in general I welcome the Australian
Government’s attempts to reform the adversarial culture of the native
title system.

In this Chapter, I examine the Australian Government’s commitment to
reforming the native title system to encourage negotiations and
agreement-making. I first review some of the achievements in agreement-making
that occurred during the Reporting Period. I then review the Government’s
initiatives to encourage agreement-making and to explore options for broader and
more substantial outcomes from native title agreements.

However, not all of the Australian Government’s legislative and policy
initiatives relating to agreement-making and agreements were positive.

During the Reporting Period, the Australian Government proposed a new future
act process to facilitate the construction of public housing and infrastructure
on Indigenous-held land. In this Chapter, I express serious concerns that this
future act process will detract from agreement-making and that it does not
contain sufficient procedural rights.

Finally, I briefly highlight a matter that I will continue to monitor closely
— that is, the Government’s proposal to introduce a new statutory
review function to promote ‘sustainable’ agreements.

2.2 Achievements
in agreement-making

Agreement-making is a significant part of the native title system. For
example, a milestone was reached in November 2009 when the National Native Title
Tribunal (NNTT) registered the 400th Indigenous Land Use Agreement
(ILUA). President Graeme Neate of the NNTT recognised that ‘[t]he fact
that 400 ILUAs have now been registered Australia-wide indicates that this form
of agreement is continuing to work well for land users around the
nation’.[4]

In addition, the NNTT has reported that all of the determinations that native
title exists that were registered during the Reporting Period were made by
consent of the parties.[5] President
Neate has commented that:

Those determinations and the ILUAs (some of which were associated with the
making of determinations that native title exists), as well as numerous future
act agreements and future act consent determinations, illustrate the strong
agreement-making context in which native title issues are usually
resolved.[6]

Over the Reporting Period, we have witnessed a number of significant
agreements. I highlight a few of these in the text boxes below.

Text Box 2.1: Yawuru agreements
On 25 February 2010, the Yawuru People signed a body corporate ILUA and an
area ILUA with the State of Western Australia and the Shire of Broome. The body
corporate ILUA was registered by the NNTT on 24 May 2010 and the area ILUA was
registered on
6 August 2010.[7]

The agreements are considered to be the largest native title agreements in
Australia, and include a $196 million land and money
package.[8]

The agreements provide compensation to the Yawuru People for the loss and
impairment of their native title rights and interests. They also commit the
Western Australian Government to help create a sustainable social and economic
future for the community, including by providing funds for capacity building,
economic development and social
housing.[9]

Yawuru elder Pat Dodson is reported as saying that the agreements represent
‘a serious cutting of the government umbilical cord. We are in the
marketplace now and we have to develop commercial skills to run joint
ventures’.[10]

He further comments:

We in fact become probably the largest real estate developer of the future
town of Broome. There is an area of the coast (and marine region of Roebuck Bay)
area going from the north to the south for about 300km that we will joint manage
with the Shire of Broome and the State Department of Environment. What is unique
about this agreement is that we have to put in to get value out of development.
There are no royalties to be paid out to native titleholders. This is not a
mining deal. Dividends by way of community benefits will come from participation
and development. We take the risks as well as the benefits from this
deal.[11]

The agreements were a good outcome for the Yawuru People. However, the long
process that led to the final agreements illustrates that there is still a need
to change the adversarial culture of the native title system.

The agreements were reached 16 years after the Yawuru People submitted
their first claim. As Justice Merkel of the Federal Court commented, the Yawuru
People engaged in an ‘epic struggle ... to achieve recognition under
Australian law of their traditional connection to, and ownership of, their
country’.[12]

Pat Dodson described the process as ‘pretty awful and very
intrusive’ and said that ‘[t]he adversarial approach put a lot of
our people through a very rough
time’.[13] Similarly, Peter Yu
is reported as stating that:

The underlying principle of native title envisaged by the Keating
government was mediation. It is now all highly litigious. No Australian should
have their lives exposed and questioned in the way that it happened to
us.[14]

Map 2.1: Yawuru Area ILUA

 

Map 2.1: Yawuru Area ILUA

Map 2.2: Yawuru PBC ILUA

 

Map 2.2: Yawuru PBC ILUA

Text Box 2.2: Kowanyama consent determination
On 22 October 2009, the Federal Court made a consent determination which
finalised Part A of the Kowanyama People’s
claim.[15] The determination area
covers over 2730 square kilometres. It includes part of the land subject to the
Kowanyama Deed of Grant in Trust (DOGIT) and a coastal strip. The Kowanyama
People had exclusive native title rights recognised over the former area
(excluding the Kowanyama township within the DOGIT) and non-exclusive rights
recognised over the latter.[16]

The total native title claim area covers 19 800 square kilometres of land
and sea and is divided into three parts. Part B includes pastoral leases and
Part C covers the Kowanyama township
area.[17] At the time of writing,
native title over these parts had yet to be determined.

The consent determination regarding Part A followed successful negotiations
between a number of stakeholders, including the Kowanyama People, the Queensland
and Australian governments, Kowanyama Aboriginal Shire Council, Telstra, and
commercial fishers.[18]

The Cape York Land Council (CYLC), as the native title representative body
for Aboriginal peoples in Cape York, and the Queensland and Australian
governments have agreed on a framework for progressing native title claims in
the Cape York region. Noting that the Kowanyama area was the first to be
progressed under that framework, the Attorney-General commented that this

process is about adopting a regional focus, and looking beyond recognition
of native title, to see whether traditional owners have other aspirations that
can be met through negotiations with
governments.[19]

NNTT Member Graham Fletcher, who mediated between the parties, said that
negotiations could be fast-tracked due to the parties’ willingness to put
time and resources into the claim and focus on settling native title through
agreement. Mr Fletcher further stated that the successful outcome puts the
Kowanyama People and other parties in a good position to resolve the other two
sections of the claim area (Parts B and
C).[20]

The CYLC says that despite the existence of the framework agreement, and
the commitment of the parties, the native title process remains slow, with
complex issues still to be resolved. There remains uncertainty about whether
native title holders can build on their native title rights to achieve economic
and other development.[21]

Map 2.3: Kowanyama consent determination area (Part A)

 

Map 2.3: Kowanyama consent determination area (Part A)

Text Box 2.3: Noongar Heads of Agreement
On 17 December 2009, the South West Aboriginal Land and Sea Council
(SWALSC) and the Western Australian Government signed a Heads of Agreement (HoA)
outlining a framework for the resolution of the Noongar People’s active
native claims.[22]

The HoA was arrived at after a long history of litigation. In September
2006, Justice Wilcox of the Federal Court found in favour of the Noongar People
with respect to key issues in their claim over an area in and around
Perth.[23] In April 2008, the Full
Federal Court allowed appeals by Western Australia, the Commonwealth and the
Western Australian Fishing Industry Council against the decision of Justice
Wilcox.[24]

The HoA is an important first step towards a final agreement. Importantly,
the HoA includes a timetable that proposes that an agreement be signed off by
February 2012.

The SWALSC has stated that this ‘is an historic opportunity to
finally come to terms with the State and to build a new
future’.[25] Similarly,
Professor Simon Young of the University of Western Australia’s Faculty of
Law said that:

This is a chance for Western Australia to step ahead and become something
of a model. A successful result in relation to this very important Western
Australian claim may well draw other regions into more comprehensive
negotiations.[26]

In congratulating the parties on the HoA, the then Social Justice
Commissioner Tom Calma stated:

This commitment by the government to partner with the SWALSC to resolve
native title for the Noongar people shows us yet again how crucial partnership,
engagement and participation with Aboriginal and Torres Strait Islander peoples
is in achieving native title for Australia’s First
Peoples.[27]

2.3 Reforms to encourage
agreement-making

The examples of agreement-making highlighted in section 2.2, above, are
encouraging. However, they also illustrate that we are a long way from truly
breaking down the adversarial culture within the native title system. For
instance, the Noongar Heads of Agreement and the Yawuru agreements came about
only after many years of litigation.

I am pleased that the Australian Government has begun to take action to
address this problem. Indeed, the Special Rapportuer on the situation of human
rights and fundamental freedoms of indigenous people (Special Rapporteur) has
acknowledged the Australian Government’s efforts to

streamline the existing native title procedure and pursue related reforms,
such as minimizing the adversarial approach of the native title system to allow
for native title negotiations to be carried out in a more flexible
manner...[28]

During the Reporting Period, the Attorney-General reiterated the Australian
Government’s commitment to ensuring ‘a more flexible, less
legalistic native title approach that delivers practical
outcomes’.[29] The Government
supported this commitment by providing an additional $50 million in the
2009–2010 Budget ‘to build a more efficient native title system that
focuses on achieving resolution through agreement-making rather than costly and
protracted litigation’.[30]

In general, I welcome government initiatives to remove the obstacles to
agreement-making. I believe that the Australian Government took several positive
steps in the right direction during the Reporting Period. However, these steps
need to be supported by more significant change to the framework of the native
title system.

In this section, I analyse a selection of initiatives that have the potential
to improve agreement-making in the native title system. These include:

  • the Native Title Amendment Act 2009 (Cth) (Native Title Amendment
    Act)
  • financial support for settlements at a state and territory level
  • the adoption of the Guidelines for Best Practice Flexible and Sustainable
    Agreement Making
    (Best Practice Guidelines) by the Joint Working Group on
    Indigenous Land Settlements
    (JWILS)[31]
  • proposed amendments to the Native Title Act 1993 (Cth) (Native Title
    Act) to enable historical extinguishment to be disregarded in certain
    circumstances
  • grants to support anthropologists working in the native title system
  • potential reforms to clarify the requirement to negotiate ‘in good
    faith’.

I am pleased that many of the Australian
Government’s initiatives to encourage agreement-making are broadly
consistent with the recommendations in the Native Title Report 2009. I
encourage the Australian Government to continue to pursue this reform agenda in
2010–2011.

(a) The Native
Title Amendment Act 2009
(Cth)

The Native Title Amendment Act commenced on 18 September 2009. Among other
things, the Native Title Amendment Act amended the Native Title Act to:

  • allow the Federal Court to determine whether it, the NNTT or another
    individual or body, should mediate a
    claim,[32] which gives the Federal
    Court ‘the central role in managing native title
    claims’[33]
  • enable the Federal Court to rely on an agreed statement of facts between the
    parties in consent
    determinations[34]
  • provide for the application of recent amendments to the Evidence Act 1995 (Cth) to native title proceedings that began before 1 January 2009 and where
    evidence has been heard, if the parties consent or the Federal Court orders that
    it is in the interests of justice to do
    so[35]
  • empower the Federal Court to make orders to give effect to the terms of an
    agreement that involve matters other than native
    title.[36]

In general,
I welcome the Government’s efforts to foster more timely and flexible
negotiated settlements. However, a common perception is that these amendments
simply ‘tinker at the edges’ and that greater reform is needed. For
example, Queensland South Native Title Services (QSNTS) submitted that there
is

enormous practical benefits in adopting the agreed statement of facts model
... as well as broadening the jurisdiction for determinations to include a ...
power over non-native title matters, but these changes are very much at the
back-end of any process and will not of themselves kindle a native title
environment conducive to achieving negotiated
outcomes.[37]

I have been informed that the Federal Court, the NNTT and the
Attorney-General’s Department are monitoring the impact of the amendments.
However, it is too soon to assess whether the amendments have promoted the
resolution of native title claims and
agreement-making.[38]

I encourage the Federal Court, the NNTT and the Attorney-General’s
Department to continue to monitor and to report on the impact of these
amendments. In particular, these monitoring processes should include an
examination of whether the amendments:

  • have led to the negotiation of broader land settlements
  • have affected the resources of native title representative bodies (NTRBs)
    and native title service providers (NTSPs).

I consider these issues
below.

(i) Have the amendments encouraged broader land
settlements?

As described above, the Federal Court now has the power to make orders to
give effect to the terms of an agreement that involve matters other than native
title.

The Attorney-General has stated that the amendments ‘will assist with
the negotiation of broader native title agreements and provide greater certainty
for all stakeholders’.[39] The
Australian Government has explained that:

Broader settlement packages provide land and social justice outcomes beyond
answering the question of whether native title exists. Examples of benefits
under such settlements include training and employment opportunities, land
transfers and co-management of
land.[40]

However, it is unclear if the amendments will be sufficient to facilitate the
negotiation of broader settlement agreements. Minor amendments, such as those
introduced by the Native Title Amendment Act, may not promote agreement-making
unless they are accompanied by further reforms to laws, policies, attitudes and
behaviours.

For example, the Yamatji Marlpa Aboriginal Corporation (YMAC) has informed me
that the amendments have had little impact to date in its region. YMAC reports
that, due to the policies of the Western Australian Government, there have been
few opportunities to take advantage of the amendments.

For instance, state consent determination guidelines are ‘highly
onerous’ and require Traditional Owners to meet ‘a significant
evidentiary threshold’.[41] As
discussed in the Native Title Report 2009, there is a need for
governments to encourage more flexible approaches to connection evidence
requirements.[42]

(ii) The impact of recent amendments on the
disposition of claims

Aboriginal and Torres Strait Islander peoples understand all too well that
justice delayed is justice denied. We know that our Elders may not be with us to
witness the final outcomes of the native title claims and negotiations that are
tangled in bureaucratic and adversarial webs.

I am pleased that the Attorney-General has recognised that:

On current estimates, it may take another 30 years to resolve all current
native title claims. It is a tragedy to see people dying before their
peoples’ claims are resolved. Australia’s Indigenous people deserve
better, and all participants in the system should strive to achieve
that.[43]

As noted above, to support the Australian Government’s aim of
‘achieving more negotiated native title outcomes in a more timely,
effective and efficient fashion’, the Native Title Amendment Act gave the
Federal Court ‘a central role in managing all native title claims,
including deciding who mediates a
claim’.[44]

During the
Reporting Period, the Federal Court of Australia Act 1976 (Cth) (Federal
Court Act) was also amended to provide:

The overarching purpose of the civil practice and procedure provisions is to
facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as
possible.[45]

Justice Reeves of the Federal Court suggests that the amendments to the
Native Title Act and the Federal Court Act have together ‘created an
entirely new environment for native title
litigation’.[46]

For example, the Federal Court’s National Native Title Registrar has
informed me that the Court has ‘reviewed its approach to the management of
the jurisdiction in order to ensure, to the extent possible, the efficient,
effective and just resolution of
claims’.[47] Indeed, Kevin
Smith, CEO of QSNTS, observes that the Federal Court has adopted a ‘very
proactive’ approach towards the disposition of
claims.[48]

This development could be beneficial, particularly if state governments are
encouraged to improve their processes and make more concerted efforts to
progress negotiations. While noting that it is too early to express an opinion
on all the recent reforms, the Goldfields Land and Sea Council has commented
that having the Federal Court control the direction of each native title case in
a proactive and efficient manner will mean that opportunities for resolution can
be more easily identified and
pursued.[49]

In general, NTRBs and NTSPs are supportive of the drive to speed up the
claims process, and are working cooperatively with the Federal Court to achieve
this. However, this inevitably places pressure on already stretched resources
and the limited pool of legal and anthropological experts. I encourage the
Australian Government to monitor the resourcing implications of these reforms
closely.

I also question whether simply ‘speeding up’ claims processes
will result in just outcomes. These amendments to the Native Title Act do not
alter the features of the native title system that tip the scales so heavily in
favour of non-Indigenous interests. These features include the onerous burden
placed upon Traditional Owners to prove continuity and the devastating impact of
extinguishment.

Under such conditions, there is a risk that the Government’s focus on
more ‘timely’ settlements may lead to further injustice. As Kevin
Smith has stated, ‘[i]f the system was made fair then by all means
expedite the process. But to push claims through the system as it presently
stands is grossly
unfair’.[50]

Our desire for justice should not be swept aside in the name of efficiency. I
am also aware that the human rights problems plaguing the system cannot be
rectified by minor, procedural amendments. As I stated in Chapter 1, I consider
that there needs to be a comprehensive, independent review of the Native Title
Act with a view to aligning it with international human rights standards.

(b) Financial support
for settlements

The Australian Government’s willingness and ability to support
settlements at a state and territory level was a matter of contention during the
Reporting Period.

The Australian Government is currently exploring options for the creation of
settlement packages, and I am pleased to report that it has committed to provide
funding towards the first two settlements under the Victorian Native Title
Settlement Framework (Victorian Settlement Framework). However, the Australian,
state and territory governments are yet to negotiate a Native Title National
Partnership Agreement (NTNPA).

(i) Potential for a Native Title National
Partnership Agreement

In 2008, Native Title Ministers agreed to negotiate in good faith on an offer
of financial assistance from the Australian Government that could better
facilitate the settlement of native title issues by state and territory
governments. In its 2008–2009 report, JWILS noted that significant
progress had been made towards a draft NTNPA that would provide

for Commonwealth financial assistance to State and Territory governments to
negotiate settlements that result in the full and final resolution of a claim or
potential claim, and provide practical benefits to Native Title Claim Groups,
for example land acquisition, the buy back of licences and opportunities to
co-manage and access land.[51]

At the 2009 Native Title Ministers’ Meeting
(NTMM),[52] the Australian
Government committed to continue to ‘explore funding options to underpin a
draft native title National Partnership Agreement in the
future’.[53]

In April 2010, the Attorney-General’s Department also advised the
Native Title Consultative Forum
(NTCF)[54] that ‘the
Commonwealth’s ability to conclude the draft NTNPA in the short to medium
term will be dependent upon the outcomes of the current Federal budget
process’.[55] I encourage the
Australian Government to make every endeavour to finalise the NTNPA as soon as
possible.

(ii) Native Title Settlements Project

The Attorney-General’s Department advised the NTCF that, in the absence
of an NTNPA, it was ‘making significant efforts to identify and improve
access to existing programs and resources that could be used to promote flexible
and constructive native title
outcomes’.[56]

In late 2009, the Attorney-General’s Department established the Native
Title Settlements Project and appointed a Director of Native Title Settlements
to explore opportunities for the Australian Government to encourage broader
native title settlement
outcomes.[57] The Director met with
federal departments to identify and negotiate access to specific resources and
programs that may be usefully applied towards
settlements.[58]

The Attorney-General’s Department reported to the NTCF that it had
‘identified a number of potential opportunities as well as areas where
there are challenges concerning program access and available resources’. [59] The Department recognises that
‘any packaging of Commonwealth resources in settlements will need to be
managed on a case-by-case
basis’.[60] and has begun to
trial this new approach with a small number of specific
cases.[61]

I support efforts to create better settlement packages to assist with the
resolution of claims. However, I would be concerned if these settlement packages
only represent a repackaging of existing services. I also consider that such
services should not be provided in lieu of compensation for the use or
development of our lands.

(iii) Australian Government support for the
Victorian Settlement Framework

A significant question emerged during the Reporting Period as to whether the
Australian Government would financially support the Victorian Settlement
Framework.

The former Attorney-General of Victoria announced the adoption of the
Victorian Settlement Framework on
4 June 2009.[62] The
Victorian Settlement Framework ‘provides for out of court settlement
packages that allow Traditional Owners to settle their land claim directly with
the State outside the Federal Court
process’.[63]

Following the announcement, the federal Attorney-General described the
Victorian Settlement Framework as ‘an example of how, by changing
behaviours and attitudes, and by resolving native title through settlements that
include the provision of practical benefits that we can make native title work
better’.[64]

However, in November 2009 the Victorian Traditional Owner Land Justice Group
expressed concerned that the Victorian Settlement Framework was ‘in
jeopardy as a result of disagreement over funding between the State and
Commonwealth
Governments’.[65]

I am pleased that the Australian Government has now agreed to contribute
towards settlement costs for specific settlements under the Victorian Settlement
Framework. The federal Attorney-General’s Department has informed me that
the Commonwealth has committed funding towards the first two settlements under
the Victorian Settlement
Framework.[66]

The former Attorney-General of Victoria informed me that Victorian Government
agencies worked over the Reporting Period to develop the policy and legislative
detail required to bring the Victorian Settlement Framework into
operation.[67]

I congratulate the State of Victoria and the Traditional Owners of Victoria
on this significant achievement. I encourage the Australian Government and the
incoming Victorian Government to work together to ensure that the Victorian
Settlement Framework is sufficiently funded and successfully implemented. I also
encourage the Australian Government to work with other states and territories to
achieve similar reforms across the country.

(c) Adoption of the Guidelines for Best Practice Flexible and Sustainable Agreement
Making

In August 2009, the NTMM endorsed the Best Practice
Guidelines.[68] These guidelines
were developed by JWILS.

(i) What do the Best Practice Guidelines cover?

In a Communiqué from their August 2009 meeting, the Native
Title Ministers stated:

The Guidelines provide practical guidance for governments on the behaviours,
attitudes and practices that can achieve the efficient resolution of native
title, from the early stages of negotiations through to implementation.

The Guidelines emphasise the desirability for government parties to provide
broader practical and sustainable benefits attuned to the interests of
Indigenous native title
claimants.[69]

Among other things, the Best Practice Guidelines encourage government parties
to:

  • adopt an interest-based approach to negotiations
  • negotiate in good faith
  • be proactive in providing connection and tenure information early
  • consider engaging in regional settlements
  • consult effectively to achieve a sustainable agreements
  • exercise cultural awareness and sensitivity
  • use interpreters and draft agreements in plain English
  • consider whether capacity-building is required for Aboriginal and Torres
    Strait Islander parties to realise fully the potential of sustainable
    benefits
  • recognise the importance of committing to ongoing implementation and review
    of agreements.

Aspects of the Best Practice Guidelines are broadly
consistent with the recommendations for improving the native title system
contained in the Native Title Report 2009. These include the need for
governments to adopt an interest-based approach to negotiations, provide access
to tenure information as early as possible, promote regional approaches to
agreement-making, and build the capacity of Aboriginal and Torres Strait
Islander communities to effectively engage in
agreement-making.[70]

(ii) Will the Best Practice Guidelines be
effective?

Now that they have adopted the Best Practice Guidelines, governments need to
implement them. Otherwise, the Best Practice Guidelines will be little more than
empty words.

This sentiment was reflected during the consultations on the draft guidelines
that were conducted by JWILS in mid-2009. Many stakeholders noted that
guidelines ‘would only add value if effectively implemented by
governments’.[71] For
instance, QSNTS generally supported the draft guidelines as a ‘positive
step towards a more flexible and less technical approach to agreement
making’ but stated that ‘unless governments are prepared to take
certain steps to ensure that the Guidelines are adhered to, then they will be of
little or no use’.[72]

YMAC has further commented that the Best Practice Guidelines ‘will only
have effect if genuine efforts are made by government parties to implement them
in everyday practice’, and that it had yet to see any tangible outcomes
from the commitments made at the NTMM and
JWILS.[73]

Indeed, these guidelines may not be sufficient to alter government practices.
I share the view of former Social Justice Commissioner, Tom Calma, that the
Australian Government should play a leadership role in encouraging states and
territories to change their behaviour, including by using its financial
position.[74]

This could be achieved through the development of a NTNPA. According to
JWILS, a ‘key requirement’ for federal financial assistance under
the draft NTNPA would be that a settlement ‘is sustainable over the longer
term and contributes to the Council of Australian Governments’ (COAG)
“Closing the Gap”
targets’.[75] In a similar
way, the Australian Government could explore options for making the provision of
funding to states and territories under the NTNPA conditional on best practice
standards in agreement-making — such as those set out in the Best Practice
Guidelines — being met.

(d) Proposed amendments
to disregard historical extinguishment

On 14 January 2010, the Attorney-General released an exposure draft
of proposed amendments to the Native Title
Act.[76] These amendments would
allow parties to agree to disregard the historical extinguishment of native
title in ‘areas set aside or vested by a Government law for the purpose of
preserving the natural environment of the area, such as a State or Territory
park or reserve’.[77] This
amendment is inspired by the reforms proposed by Chief Justice Robert French of
the High Court of Australia.[78]

(i) What would be the benefits of this
reform?

As stated in the Native Title Report 2002, native title can be
‘an archaeological site of
extinguishment’.[79] The
breadth and permanency of extinguishment across Australia entrenches
dispossession and disadvantage. It is also contrary to Australia’s human
rights obligations. Following his visit to Australia in August 2009, the Special
Rapporteur observed that the extinguishment of Indigenous rights in land by
unilateral uncompensated acts is incompatible with the United Nations
Declaration on the Rights of Indigenous Peoples
(Declaration)[80] and other
international instruments.[81]

Sections 47–47B of the Native Title Act already provide for prior
extinguishment in respect of pastoral leases held by native title claimants;
reserves; and vacant Crown land to be disregarded in certain circumstances. In
the Native Title Report 2009, the then Social Justice Commissioner
recommended that the Australian Government explore options for extinguishment to
be disregarded in a greater number of
circumstances.[82]

It is therefore encouraging that the Australian Government has proposed
amendments to enable historical extinguishment to be disregarded over an area
such as a national, state or territory park.

(ii) Are there any limitations to this reform
proposal?

The Attorney-General suggests that this amendment ‘could provide
opportunities for more claims to be settled by negotiation rather than
litigation’.[83]

Under the proposed amendment, extinguishment would be disregarded only if the
relevant parties agree to it in
writing.[84] The proposed amendment
would therefore have the most impact where government parties are truly prepared
to be flexible and approach claims processes in good faith.

Yet, as the Australian Institute of Aboriginal and Torres Strait Islander
Studies observed, it is in the interests of a state to argue for extinguishment
so that the land remains under its control, free from
encumbrances.[85] This suggests
that, unless accompanied by a cultural change within governments, this
particular reform may not promote agreement-making. In the absence of such a
change, the proposed amendment could be strengthened by removing the requirement
that there be an agreement before extinguishment can be disregarded.

(iii) What else could the Australian Government
do?

I hope that the Australian Government’s proposal is a precursor to
further reforms to the Native Title Act. I encourage the Government to work with
NTRBs and NTSPs to develop proposals to expand the range of circumstances in
which extinguishment can be disregarded.

The proposed reform will not alone be sufficient to address the injustices of
extinguishment. I consider that the impact and operation of the law concerning
extinguishment should be a significant part of the terms of reference of a
comprehensive, independent review of the Native Title Act.

(e) Grants to support
anthropologists

To ensure that they receive sustainable outcomes from agreements, Traditional
Owners need to be able to access necessary expert advice.

On 28 May 2010, the Attorney-General announced that the Australian
Government will invest $1.4 million over three years in a Native Title
Anthropologists Grants Program to attract and retain anthropologists within the
native title system.[86]

On 3 June
2010, the Minister for Indigenous Affairs announced the establishment of a
Native Title Research Scholarship Program. The scholarships will support
postgraduate study in a field relating to native title, with a focus on
anthropology and history.[87] I
support these initiatives. They are consistent with the recommendation in the Native Title Report 2009 that the Australian Government should provide
further support for the training and development of experts in native
title.[88] I encourage the
Australian Government to explore further initiatives in this regard.

(f) Potential reforms to
clarify the requirement to negotiate ‘in good faith’

Towards the end of the Reporting Period, the Minister for Families, Housing,
Community Services and Indigenous Affairs (Minister for Indigenous Affairs) and
the Attorney-General announced that the Australian Government would
‘progress work to clarify the meaning of “in good faith” under
the right to negotiate provisions’ of the Native Title
Act.[89]

Such reforms could potentially address some of the disparities in bargaining
power that exist under the right to negotiate regime, and place Aboriginal and
Torres Strait Islander peoples in a better position to negotiate beneficial
agreements.

(i) Why is this reform needed?

Under the Native Title Act, the right to negotiate applies to certain future
acts, including the grant of certain mining rights and certain compulsory
acquisitions.[90] Section 31(1)(b) of the Native Title Act requires parties to

negotiate in good faith with a view to obtaining the agreement of each of the
native title parties to:

  • (i) the doing of the act; or
  • (ii) the doing of the act subject to conditions to be complied with by any
    of the parties.

A party may apply to an arbitral body for a
determination in relation to the act if at least six months have passed since
the ‘notification
day’[91] and the parties have
not made an agreement.[92]
In FMG Pilbara Pty Ltd v Cox (FMG),[93] the
Full Federal Court found that the Native Title Act does not require that parties
reach a certain stage in negotiations before a party is able to apply for a
determination. A future act determination can be made once the prescribed period
expires regardless of the stage negotiations have reached, provided those
negotiations were conducted in good faith during that period. Nor are parties
compelled to negotiate in a particular way or over specified
matters.[94]

In the FMG decision, this meant that it was not a breach of the
requirement to negotiate in good faith for the proponent to apply for a
determination when:

  • negotiations had reached only a preliminary stage
  • the proponent had negotiated on a ‘whole of claim’ basis rather
    than specifically about the future act that was the subject of the application
    to the NNTT.[95]

The
Australian Government has observed that:

This decision has been criticised on the basis that it could enable parties
to approach the NNTT for a determination that a particular future act proceed,
even if there have been no substantive negotiations about the doing of that act.
It has therefore been suggested that the decision could discourage parties to
actively engage in negotiations to reach broad and practical
agreements.[96]

The previous Social Justice Commissioner expressed concerns that the Full
Federal Court had interpreted the Act ‘in ways which unnecessarily
strengthened the position of mining companies over native title
interests’.[97] The High Court
of Australia refused special leave to appeal this decision on
14 October 2009.[98]

YMAC has informed me that:

The High Court’s decision [to refuse special leave to appeal] has the
potential to create a situation in which mining companies can avoid their
obligation to negotiate in good faith. This could undermine the rights of
Traditional Owners and will render the relevant provisions of the NTA
redundant.

If Traditional Owners lose this mechanism, the ability to secure benefits for
Traditional Owner communities will be greatly diminished, which in turn will
undermine efforts to close the
gap.[99]

(ii) What are the next steps?

On 3 July 2010, just outside of the Reporting Period, the Minister for
Indigenous Affairs and the Attorney-General released the Leading practice
agreements: maximising outcomes from native title benefits
discussion paper
(Agreements Discussion
Paper).[100] In this discussion
paper, the Australian Government stated that it

has decided to amend the Act to provide clarification for parties on what
negotiation in good faith entails and to encourage parties to engage in
meaningful discussions about future acts under the right to negotiate
provisions.[101]

I am pleased that the Government has indicated a willingness to revisit the
requirements for ‘good faith’ negotiations. As my predecessor
observed, ‘the obligation on miners to negotiate in good faith ... is one
of the few legal safeguards that native title parties have under the future act
regime’.[102]

In the Native Title Report 2009, the Social Justice Commissioner
recommended that the Australian Government consider measures to strengthen
procedural rights and the future acts regime. In general, I would welcome
legislative reform to strengthen the right to negotiate to ensure a more level
playing field.

In its submission in response to the Agreements Discussion Paper, the
Australian Human Rights Commission recommended that the Native Title Act should
be amended to include explicit criteria as to what constitutes good faith, and
be supplemented by a code or framework to guide parties and the NNTT as to the
requirements of good faith negotiation. The Commission further recommended that
the Australian Government consider broader options for reforming the right to
negotiate regime.[103]

I will closely monitor the progress of these proposals.

2.4 The Native Title
Amendment Bill (No 2) 2009 (Cth)

During the Reporting Period, the Attorney-General introduced the Native Title
Amendment Bill (No 2) 2009 (Cth) (the Amendment Bill (No 2)) into
Parliament.[104]

The purpose of the Amendment Bill (No 2) was to introduce a new future act
process into the Native Title Act to ‘assist the timely construction of
public housing and a limited class of public facilities ... for Aboriginal
people and Torres Strait Islanders in communities on Indigenous held
land’.[105] I analyse the
process leading to the introduction of the Amendment Bill (No 2) in Chapter 3.

In the previous section, I considered the steps that the Australian
Government has taken to promote negotiations and agreement-making within the
native title system. The new future act process appears to be at odds with this
approach.

I understand that this reform is aimed at improving the delivery of measures
to alleviate the chronic housing shortages in Aboriginal and Torres Strait
Islander communities. However, the Native Title Act provides mechanisms for
facilitating the construction of housing and infrastructure with the consent of
Traditional Owners — that is, through the use of ILUAs.

I believe that the new future act process may encourage governments to
circumvent agreement-making processes. This would diminish the ability of
Aboriginal and Torres Strait Islander peoples to exercise their rights,
including their rights to self-determination; to participate in decision-making;
and to determine and develop strategies and priorities for the development or
use of their lands or territories and other
resources.[106]

(a) Background to the
Amendment Bill (No 2)

The states and the Northern Territory are the ‘major deliverer[s] of
housing for Indigenous people in remote areas of Australia’ under the
Council of Australian Governments’ $5.5 billion National Partnership
Agreement on Remote Indigenous Housing (National Partnership
Agreement).[107]

The Australian Government’s commitment to provide additional funding
for remote Indigenous housing is ‘conditional on secure land tenure being
settled’.[108] This includes
ensuring that governments have ‘access to and control of, the land on
which construction will proceed for a minimum period of 40 years’, and
that native title issues have been
resolved.[109]

State governments have expressed concerns that native title is
‘delaying their ability to provide such housing and
infrastructure’.[110] These
concerns were said to arise because:

  • there is no specific subdivision in the future act regime covering public
    housing and infrastructure in Indigenous communities
  • there is uncertainty about the application of existing future act processes
    to these types of
    development[111]
  • negotiating ILUAs ‘to provide for the non extinguishment principle to
    apply clearly adds delays to the provision of essential public works to
    communities’.[112]

(b) Where would the
process apply?

The Attorney-General’s Department and the Department of Families,
Housing, Community Services and Indigenous Affairs (FaHCSIA) have stated that
the process would ‘only apply to future acts on land which is held by or
for the benefit of Aboriginal peoples or Torres Strait
Islanders’.[113] It would
not apply to acts creating or affecting certain ‘Aboriginal / Torres
Strait Islander land or
waters’[114] that are
excluded from the definition of a ‘future
act’.[115] The process is
‘most relevant’ to Queensland and Western
Australia.[116]

(c) What acts would be
covered by the process?

The process is designed to cover acts of an ‘action
body’[117] that permit,
require or consist of the construction, operation, use, maintenance or repair
of:

  • public housing provided for Aboriginal people or Torres Strait Islanders
    living in, or in the vicinity of, the area
  • public education or health facilities, and police or emergency facilities
    that benefit those people
  • certain facilities in connection with the above-mentioned public housing or
    facilities.[118]

The
act would need to be done or commenced within 10 years of the commencement of
the amendments.[119] The process
would not apply in instances of compulsory
acquisition.[120]

(d) Would the process
promote agreement-making and relationship-building?

The Attorney-General stated that the Amendment Bill (No 2)

contains important safeguards to ensure genuine consultation with native
title parties.

It sets in place a framework for meaningful engagement with key stakeholders
in decisions about housing and other services for Indigenous communities.

The new process sets out reasonable and specific periods for comment and
consultation, and provides flexibility to allow native title parties to choose
the level of engagement they feel is appropriate for each individual
project.[121]

An act would be invalid unless, before the act is commenced or done, the
action body:

  • gives notice of, and an opportunity to comment on, the act to certain native
    title parties
  • provides a report on the things done regarding the requirements to provide
    notice, an opportunity to comment and, in limited circumstances, to engage in
    consultation.[122]

The act would also be invalid if it is done or commenced before the
end of the ‘consultation
period’.[123]

The non-extinguishment principle would apply and native title holders may be
entitled to compensation.[124] Heritage processes[125] and any
processes under the particular land rights legislation or arrangements governing
the use of the land[126] would
also have to be complied with.

I welcome the Australian Government’s emphasis on the importance of
‘genuine consultation’. However, for the reasons outlined below, I
am unable to agree with the Attorney-General’s assessment of the new
future act process.

(i) The notice provisions are limited

The action body is to provide notice to any registered native title claimant,
Registered Native Title Body Corporate (RNTBC) and any representative Aboriginal
/ Torres Strait Islander body in relation to the land or waters in the area. The
action body must provide notice in the way determined by the Minister by
legislative instrument.[127]

The notice must specify a ‘notification day’, that is, ‘a
day by which, in the action body’s opinion, it is reasonable to assume
that all notices ... in relation to the act will have been received by, or will
otherwise have come to the attention of, the persons who must be
notified’.[128]

Further, the notice must contain statements to the effect that comments on
the act and requests to be consulted must be made within two months of the
notification day.[129]

I am concerned that the ‘action body’s opinion’ plays such
a pivotal role in determining whether it is reasonable to assume that all
notices have been received, or have come to the attention of, the relevant
persons. I share the view of the Law Council of Australia that action bodies
should be obliged to take reasonable steps to identify and notify all relevant
claimants, body corporates or representative bodies, and report those steps to
the Minister.[130]

It is also important that the notice be accessible and in a form that is able
to be readily understood by Traditional Owners. For example, I consider that the
notice should be translated into all relevant languages.

The notice should also provide all relevant details relating to the act. In
the context of other future act processes, the Full Federal Court has stated
that the obligation to give notice for the purpose of affording an opportunity
to comment ‘can be fulfilled by the decision-maker providing to the
designated recipient only general
information’.[131]

Getting this notification process right is crucial. If Traditional Owners do
not receive a notice, or if they do not understand the notice or the potential
impact of the proposed act, they may miss the limited window of opportunity to
comment or request to be consulted about the proposed act.

(ii) The ‘opportunity to comment’ does
not enable Aboriginal and Torres Strait Islander peoples to participate
genuinely in decision-making processes

The action body must give registered native title claimants, RNTBCs and any
representative Aboriginal / Torres Strait Islander body in relation to the land
or waters, an opportunity to comment on the act. Comments on the act must be
made within two months of the notification
day.[132]

This procedure does not allow Aboriginal and Torres Strait Islander peoples
to participate genuinely in decision-making processes. As a previous Social
Justice Commissioner observed, ‘the “opportunity to comment”
process places effectively no restrictions at all upon the manner or outcome of
the decision-making
process’.[133]

The Full Federal Court has found that the ‘opportunity to
comment’ provides only ‘a right to proffer information and argument
to the decision-maker that it can make such use of as it considers
appropriate’.[134] There is
no right to participate in decision-making or to seek information from the
decision-maker. It is entirely up to the decision-maker ‘whether the
comment should cause it to change or modify its
decision’.[135] As the
Western Desert Lands Aboriginal Corporation (Jamakurnu-Yapalinkunu) RNTBC
observes, this procedural right ‘does not and will not result in
meaningful participation of native title
parties’.[136]

(iii) Consultation requirements may not be stringent

A registered native title claimant or RNTBC would be entitled to be consulted
if, within two months of the notification day, they request to be
consulted.[137] The right to
request consultation does not extend to representative bodies or to Traditional
Owners that have not achieved
registration.[138]

If such a request is made, the action body must consult:

  • about ways of minimising the act’s impact on registered native title
    rights and interests in relation to land or waters in the area
  • if relevant, about any access to the land or waters
  • if relevant, about the way in which anything authorised by the act might be
    done.[139]

I am
concerned that this process would place the onus upon under-resourced
Traditional Owners and RNTBCs to assess the proposed act, and request to be
consulted, within a short timeframe.

Further, the consultation timeframe is short. The maximum ‘consultation
period’ is four months from the notification
day.[140] During this time,
Traditional Owners and RNTBCs that wish to be consulted would have to assess the
notice (assuming they receive it), request to be consulted, ascertain the views
of Traditional Owners and engage in consultations with the action body. This may
not be sufficient time for genuine consultations to take place.

While I do not support the introduction of a new future act process, in
general I welcome that, in consulting with a claimant or RNTBC, the action body
would need to comply with any requirements determined by the Minister by
legislative instrument.[141] I
consider that any consultation requirements should be developed in partnership
with Aboriginal and Torres Strait Islander peoples. I consider the elements of
effective engagement in Chapter 3.

The Explanatory Memorandum to the Amendment Bill (No 2) indicates that the
legislative instrument

may, for example, require the action body to hold one or more face-to-face
meeting with native title claimants or body corporate who have requested
consultation, provide translators during consultation, or address issues of the
design, location and nature of the proposed act. The Commonwealth Minister will
be able to refine these requirements in light of the experiences of action
bodies and native title parties over time and having regard to differing
projects and community
circumstances.[142]

Encouragingly, the Attorney-General’s Department and FaHCSIA state
that:

The concept of ‘consulting’ has an established meaning. It is
insufficient to simply ‘go through the motions’, and a proponent who
failed to seriously engage or to consider information and arguments put forward
would not in fact be
‘consulting’.[143]

(iv) Action bodies may not be held
accountable

I welcome that an action body must provide a written report to the Minister
on the things it has done with respect to the procedural steps outlined
above.[144] However, I am
concerned that the Amendment Bill (No 2) does not require the Minister to
publish these reports.

Further, Traditional Owners may not have the opportunity to challenge the
action body’s report or put forward their views on the adequacy of
consultation. Similarly, the Torres Strait Regional Authority expressed concern
that the Amendment Bill (No 2) denies native title holders ‘the
opportunity to confirm whether the information provided was appropriate,
sufficient and easily
understood’.[145]

(v) There are no
guarantees that the process would be used as a measure of last resort

The Attorney-General’s Department and FaHCSIA have stated that:

The existing Indigenous Land Use Agreements (ILUA) provisions would remain as
an option for future acts otherwise covered by the new process. However, the new
process would be available in circumstances where the timely negotiation and
registration of an ILUA is not possible or
timely.[146]

Certainly, the new future act process does not restrict the ability of
parties to enter into ILUAs. However, it does not encourage agreement-making.
There are no safeguards to ensure that the process would be used only as a
measure of last resort. Indeed, as stated by one NTRB:

The Bill creates an incentive for Governments to avoid trying to reach an
agreement with Aboriginal people in favour of the simpler option of overriding
their legal rights and
interests.[147]

Indeed, President Neate of the NNTT has observed that:

If the Bill is passed, the amendments might result in fewer ILUAs being
negotiated, given that the cost and delay of negotiating area agreement ILUAs
for these purposes, particularly in Queensland and Western Australia, was said
to be one reason for the proposed
amendments.[148]

NTRBs submitted that the new process may even jeopardise negotiations that
are currently under way, and reduce goodwill among the parties to negotiate
broader settlements.[149] I am
concerned that this would detract from efforts to rebuild the relationships
between governments and Aboriginal and Torres Strait Islander peoples.

(e) Governments
should address the real barriers to agreement-making

I welcome the Australian Government’s commitment to overcoming
disadvantage in Aboriginal and Torres Strait Islander communities, including
through addressing chronic housing shortages. However, this objective can best
be pursued by working in partnership with Aboriginal and Torres Strait Islander
peoples to solve problems, rather than by implementing a new future act process.

Native title is not the reason for the deplorable state of infrastructure and
housing that exists in many Aboriginal and Torres Strait Islander communities.
Yet, if it is concerned that delays in agreement-making processes have impeded
the construction of public housing and infrastructure, the Australian Government
should confront the reasons behind any such delays.

The Western Australian Department of Housing has stated that the negotiation
of ILUAs delays the provision of essential public works, for reasons including:

  • the resourcing of NTRBs
  • that the expectations of Traditional Owners may differ from community
    expectations
  • the time, resourcing and workload issues faced by Prescribed Bodies
    Corporate (PBCs)
  • the costs and the legal nature of negotiations under the Native Title
    Act.[150]

The new
future act process will not solve these fundamental problems. For instance, it
will not resolve conflicting community expectations. If anything, the
construction of public housing and infrastructure by governments without the
agreement of Traditional Owners could exacerbate community disputes.

Nor will a new future act process address the chronic underfunding of NTRBs,
NTSPs and PBCs.

Ultimately, it is by no means clear that options for improving
agreement-making processes have been exhausted such that the new future act
process is necessary. For example, NTRBs and NTSPs have proposed that template
ILUAs be developed in order to facilitate
agreement-making.[151] This worthy
initiative could reduce the costs associated with agreement-making and create
goodwill. I encourage governments to work with NTRBs and NTSPs to progress
template ILUAs to support the timely negotiation of agreements.

2.5 Future reforms:
maximising outcomes from native title benefits?

During the Reporting Period, the Australian Government signalled an intention
to focus future reform efforts on ensuring the sustainability of agreements and
improving the governance of native title entities that receive native title
payments.

This issue had also been on the Government’s agenda in previous years.
In 2008, the Government convened a Native Title Payments Working Group (Working
Group) to recommend ‘leading policy and practice to optimise financial and
non-financial benefits from resource
agreements’.[152] In
December 2008, the Government released a discussion paper on ‘optimising
benefits from native title
agreement-making’.[153]

During the Reporting Period, the Government progressed its work in this area
through JWILS. It also foreshadowed a public consultation process on measures to
promote ‘leading practice
principles’.[154]

(a) Activities of
JWILS

The management of native title benefits was a central component of the
2009–2010 terms of reference of JWILS. These terms of reference focus on:

  • supporting and building the capacity of PBCs to effectively manage
    benefits
  • designing culturally appropriate and effective governance structures to
    manage benefits, including cross-generational benefits
  • maximising economic development, leadership and governance
    opportunities.[155]

On 8 April 2010, JWILS convened a workshop on sustainable benefits
management in native title settlements. The results of this workshop will assist
JWILS to develop recommendations against its terms of
reference.[156]

(b) The Agreements
Discussion Paper

Towards the end of the Reporting Period, the Minister for Indigenous Affairs
and the Attorney-General announced that the Australian Government would release
a discussion paper which would ‘outline a package of reforms to promote
leading practice in native title agreements and the governance of native
payments’.[157] The
Agreements Discussion Paper was released on 3 July
2010.[158]

In addition to the options for clarifying the good faith negotiation
requirements under the Native Title Act (see section 2.3, above), the Agreements
Discussion Paper included options to:

  • encourage entities that receive native title payments to adopt measures to
    strengthen their governance
  • create a new statutory function to review native title agreements, with the
    objective of improving the sustainability of these agreements
  • streamline ILUA processes.

The Agreements Discussion Paper
includes a proposal for a new ‘statutory review
function’.[159] ‘Future act’ agreements would be required to be registered with a
review body. This body could be responsible for:

  • receiving and reviewing native title agreements and maintaining a
    confidential register of those agreements
  • assessing some native title agreements against leading practice principles
  • advising and assisting parties to implement leading practice in native title
    agreements
  • research and communication to develop and promote leading practice in
    agreement-making
  • reporting on trends and issues via an annual report tabled in Parliament
  • advising relevant Ministers, including where parties are not prepared to
    adopt leading practice principles, or in relation to measures to further assist
    parties to native title agreements
  • assessing access to tax benefits for financial benefit packages paid under
    the
    agreements.[160]

The
Australian Government suggests that certain governance measures and leading
practice principles could be mandated. Alternatively, favourable tax treatment
could be conditional on the adoption of these measures and
principles.[161]

I recognise the importance of government support to assist native title
groups to negotiate beneficial agreements and develop robust governance
structures. However, I consider that such support should focus on capacity
development, rather than on increased regulation, review or assessment.

Without access to adequate financial resources and expert advice, Aboriginal
and Torres Strait Islander peoples are unlikely to be able to enter into
‘sustainable’ agreements, enforce the implementation of such
agreements or develop effective governance structures.

I consider that the Australian Government has not adequately demonstrated the
need for a new statutory review function. I also believe that the statutory
function will do little to empower Aboriginal and Torres Strait Islander peoples
and their representatives to negotiate beneficial agreements. Further, as
elaborated in the Australian Human Rights Commission’s submission in
response to the Agreements Discussion Paper, the potential elements of the
review function are problematic and should be
reconsidered.[162]

I urge the Australian Government not to proceed with any reforms without
consulting and cooperating with Aboriginal and Torres Strait Islander peoples in
order to obtain our free, prior and informed consent, consistent with article 19
of the Declaration.

I emphasise that any reform should be guided by the minimum standards
affirmed in the Declaration. These include our rights to:

  • self-determination
  • participate in decision-making in matters which would affect our rights
  • determine and develop priorities and strategies for the development or use
    of our lands, territories and
    resources.[163]

I will
continue to monitor the progress of the Agreements Discussion Paper, and any
related reforms, during the 2010–2011 reporting period.

2.6 Conclusion

I commend the Australian Government for its actions during the Reporting
Period to promote and facilitate agreement-making. These are important first
steps towards transforming the culture of the native title system and building
better relationships with Aboriginal and Torres Strait Islander peoples.

However, the Government needs to commit to a more substantial reform agenda
if it truly wants the system to change.

I understand the Government’s concern to ensure that agreements are
beneficial and sustainable. However, ‘good’ agreements will remain
the exception rather than the rule while the system is so heavily weighted
against the interests of Aboriginal and Torres Strait Islander peoples.

However, it is not good enough for governments to deal with perceived
problems by imposing further layers of unwanted regulation, just as it is not
enough for governments to deal with complex problems by offering piecemeal
solutions. Nor is it acceptable for the Australian Government to introduce
further incursions into our rights by expanding the future act regime,
effectively reducing our ability to negotiate agreements.

I encourage the Australian Government to build on its reforms designed to
improve agreement-making, but to do so in a way that fully respects our
rights.

Recommendations

2.1 That the Australian Government commission an independent inquiry to
review the operation of the native title system and explore options for native
title law reform, with a view to aligning the system with international human
rights standards. Further, that the terms of reference for this review be
developed in full consultation with all relevant stakeholders, particularly
Aboriginal and Torres Strait Islander peoples. Such terms of reference could
include, but not be limited to, an examination of:

  • the impact of the current burden of proof
  • the operation of the law regarding extinguishment
  • the future act regime
  • options for advancing negotiated settlements (including the potential for
    alternative, comprehensive settlements).

2.2 That the Australian
Government work with Native Title Representative Bodies, Native Title Service
Providers, Prescribed Bodies Corporate and other Traditional Owner groups to
explore options for streamlining agreement-making processes, including options
for template agreements on matters such as the construction of public
housing and other infrastructure.

2.3 That the Australian Government make every endeavour to finalise the
Native Title National Partnership Agreement. Further, that the Australian
Government consider options and incentives to encourage states and territories
to adopt best practice standards in agreement-making.

2.4 That the Australian Government pursue reforms to clarify and strengthen
the requirements for good faith negotiations in 2010–2011.

2.5 That the Australian, state and territory governments commit to only
using the new future act process relating to public housing and infrastructure
(introduced by the Native Title Amendment Act (No 1) 2010 (Cth)) as a
measure of last resort.

2.6 That the Australian Government begin a process to establish the
consultation requirements that an action body must follow under the new future
act process introduced by the Native Title Amendment Act (No 1) 2010 (Cth). Further, that the Australian Government ensure that Aboriginal and Torres
Strait Islander peoples are able to participate effectively in the development
of these requirements.

2.7 That the Australian Government:

    • consult and cooperate in good faith in order to obtain the free, prior and
      informed consent of Aboriginal and Torres Strait Islander peoples
    • provide a clear, evidence-based policy justification

    before
    introducing reforms that are designed to ensure the ‘sustainability’
    of native title agreements.

2.8 That, as part of its efforts to ensure that native title agreements are
sustainable, the Australian Government ensure that Native Title Representative
Bodies, Native Title Service Providers, Prescribed Bodies Corporate and other
Traditional Owner groups have access to sufficient resources to enable them to
participate effectively in negotiations and agreement-making processes.


[1] United Nations Declaration
on the Rights of Indigenous Peoples
, GA Resolution 61/295 (Annex), UN Doc
A/RES/61/295 (2007), art 32(1). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 28 September 2010).
[2] D
Ritter, The Native Title Market (2009), p 6.
[3] Proposals for reforms to
create a ‘level playing field’ are considered further in T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009
, Australian Human Rights Commission (2009), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[4] National Native Title Tribunal, ‘Native title reaches another
milestone’ (Media Release, 27 November 2009). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/Nativetitlereachesanothermilestone.aspx (viewed
29 September 2010).
[5] National Native Title Tribunal, Annual Report 2009–10 (2010), p 26.
At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20report%202009%20-%202010.pdf (viewed 13 October 2010).
[6] National Native Title
Tribunal, Annual Report 2009–10 (2010), p 26. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20report%202009%20-%202010.pdf (viewed
13 October 2010).
[7] National Native Title Tribunal, ‘Tribunal registers Yawuru
agreement’ (Media Release, 25 May 2010). At http://www.nntt.gov.au/News-and-Communications/Newsletters/Talking-Native-Title/Pages/YawuruILUAsregistered.aspx (viewed 29 September 2010); National Native Title Tribunal,
‘Tribunal registers second Yawuru ILUA’ (Media Release, 6 August
2010). At http://www.nntt.gov.au/News-and-Communications/Newsletters/Talking-Native-Title/Pages/TribunalregisterssecondYawuruILUA.aspx (viewed 29 September 2010); National Native Title Tribunal, Annual
Report 2009–10
(2010), pp 78–80. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20report%202009%20-%202010.pdf (viewed 13 October 2010).
[8] Office of Native Title Western
Australia, Yawuru Agreements, Fact Sheet. At http://www.ont.dotag.wa.gov.au/_files/Yawuru_fact_Sheet.pdf (viewed
29 September 2010).
[9] Office of Native Title Western Australia, Yawuru Agreements, Fact Sheet.
At http://www.ont.dotag.wa.gov.au/_files/Yawuru_fact_Sheet.pdf (viewed
29 September 2010).
[10] R Skeleton, ‘Landmark in title claims bittersweet’, The Age,
27 February 2010, p 6. At http://www.theage.com.au/national/landmark-in-title-claims-bittersweet-20100226-p97h.html (viewed
29 September 2010).
[11] P Dodson, Email to K Kiss, Director, Social Justice Unit, Australian Human
Rights Commission,
9 November 2010.
[12] Rubibi Community v Western Australia (No 7) [2006] FCA 459 (28 April
2006), para 159.
[13] R
Skeleton, ‘Landmark in title claims bittersweet’, The Age, 27
February 2010, p 6. At http://www.theage.com.au/national/landmark-in-title-claims-bittersweet-20100226-p97h.html (viewed
29 September 2010).
[14] R Skeleton, ‘Landmark in title claims bittersweet’, The Age,
27 February 2010, p 6. At http://www.theage.com.au/national/landmark-in-title-claims-bittersweet-20100226-p97h.html (viewed
29 September 2010).
[15] Kowanyama People v Queensland [2009] FCA 1192 (22 October
2009).
[16] Kowanyama People v
Queensland
[2009] FCA 1192 (22 October 2009), paras 2, 3.
[17] See National Native Title
Tribunal, Kowanyama People’s native title determination (2009). At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Multimedia%20and%20determination%20brochures/Determination%20brochure%20Kowanyama%20October%202009.pdf (viewed
29 September 2010).
[18] National Native Title Tribunal, ‘Kowanyama native title
determination’ (Backgrounder, 22 October 2009). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Documents/2009%20media%20release%20attachments/Kowanyama_background_Oct_2009.pdf (viewed
13 October 2010).
[19] The Hon R McClelland MP, Attorney-General, Remarks at the Kowanyama Native
Title Determination
(Speech delivered at the Kowanyama Native Title
Determination, Kowanyama, 22 October 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_FourthQuarter_22October2009-RemarksattheKowanyamaNativeTitleDetermination (viewed 29 September 2010). See also The Hon R McClelland MP,
Attorney-General, and The Hon Craig Wallace MP, Minister for Natural Resources
and Water (Qld), ‘Joint Communiqué on Native Title’ (Media
Release, 20 August 2008). At http://www.ag.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2008_ThirdQuarter_20August2008-JointCommuniqueonNativeTitle (viewed
29 September 2010).
[20] National Native Title Tribunal, ‘Kowanyama native title recognised for
first time’ (Media Release, 22 October 2010). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/Kowanyama_native_title_recognised_for_first_time.aspx (viewed
29 September 2010).
[21] M Stinton, Senior Legal Officer, Cape York Land Council, Email to J Hartley,
Senior Policy Officer, Social Justice Unit, Australian Human Rights Commission,
14 October 2010 (Attachment).
[22] See generally National
Native Title Tribunal, Agreement begins negotiations, http://www.nntt.gov.au/Native-Title-In-Australia/Western-Australia/Pages/South-west.aspx (viewed 29 September 2010); South West Aboriginal Land and Sea
Council, Negotiations with the West Australia Government, http://www.noongar.org.au/talks-government.php (viewed
29 September 2010).
[23] Bennell v Western Australia (2006) 153 FCR
120.
[24] Bodney v Bennell (2008) 167 FCR 84.
[25] South
West Aboriginal Land and Sea Council, ‘What’s in the package and why
should we pursue a settlement?’, Noongar Wangkinyiny, July 2010, p
4. At http://www.noongar.org.au/images/pdf/newsletters/June2010Newsletterforweb.pdf (viewed
29 September 2010).
[26] J McHale, ‘A new way forward’, ABC South West WA, 22 February
2010. At http://www.abc.net.au/news/stories/2010/02/22/2826765.htm?site=southwestwa (viewed
29 September 2010).
[27] Australian Human Rights Commission, ‘Commissioner welcomes Native Title
negotiations for the Noongar people’ (Media Release, 18 December 2009). At http://www.humanrights.gov.au/about/media/media_releases/2009/131_09.html (viewed
29 September 2010).
[28] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), para 28. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
29 September 2010).
[29] The Hon R McClelland MP, Attorney-General, ‘Native Title Reforms Pass
Parliament’ (Media Release, 14 September 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2009_ThirdQuarter_14September2009-NativeTitleReformsPassParliament (viewed
29 September 2010).
[30] The Hon R McClelland MP, Attorney-General, ‘Kowanyama Native Title
Determination’ (Media Release, 22 October 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2009_FourthQuarter_22October2009-KowanyamaNativeTitleDetermination (viewed
29 September 2010).
[31] JWILS consists of representatives of the Attorney-General’s Department,
the Department of Families, Housing, Community Services and Indigenous Affairs,
and state and territory governments. The objective of JWILS is ‘to develop
innovative policy options for progressing broader and/or regional land
settlements that complement the Native Title Act 1993 (Cth) and the work
of the Federal Court of Australia’: Attorney-General’s Department, Consultation with State and Territory Governments, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Consultationwithstateandterritorygovernments (viewed
7 October 2010).
[32] Native Title Act 1993 (Cth), s
86B(1).
[33] Attorney-General’s Department, Native Title Amendment Act 2009:
Information Sheet
(undated), p 1. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed
29 September 2010).
[34] Native Title Act 1993 (Cth), ss 87(8)–(11),
87A(9)–(12).
[35] Native
Title Act 1993
(Cth), s 214. For example, the Evidence Act 1995 (Cth)
(as amended by the Evidence Amendment Act 2008 (Cth)) now includes
exceptions to the hearsay rule regarding evidence of a representation about the
existence or non-existence, or the content, of the traditional laws and customs
of an Aboriginal or Torres Strait Islander group: Evidence Act 1995 (Cth), s 72. These amendments are reviewed in T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report
2008, 
Australian Human Rights Commission (2009), pp 19–20. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed
29 September 2010). 
[36] Native Title Act 1993 (Cth), ss 87(4)–(7), 87A(5)–(7).
Regulations may specify the kinds of matters other than native title that an
order of the Federal Court under these provisions may give effect to:
ss 87(7), 87A(7). Such regulations had not been made by the end of the
Reporting Period.
[37] Queensland South Native Title Services, Submission to the
Attorney-General’s Department on proposed minor native title amendments
(17 February 2009), p 1. At http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform# (viewed 29 September 2010). See also National Native Title Council, Submission to the Attorney-General’s Department on proposed minor
native title amendments
(20 February 2009), pp 1, 2–3. At http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform# (viewed 29 September 2010); J Creamer, ‘We Will Mediate the Gap
Closed: 2009 Native Title Amendments’ (2010) 7(16) Indigenous Law
Bulletin
21, p 22.
[38] P
Arnaudo, A/g First Assistant Secretary, Social Inclusion Division,
Attorney-General’s Department, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, 12 August 2010; R
Hanf, Manager — Strategic Projects and Planning, National Native Title
Tribunal, Correspondence to M Gooda, Aboriginal and Torres Strait Islander
Social Justice Commissioner, 9 August 2010.
[39] The Hon R McClelland MP,
Attorney-General, ‘Rudd Government Introduces Legislation to Improve the
Native Title System’ (Media Release, 19 March 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2009_FirstQuarter_19March2009-RuddGovernmentintroducesLegislationtoimprovetheNativeTitlesystem (viewed
7 October 2010).
[40] Human Rights Committee, Replies to the List of Issues (CCPR/C/AUS/Q/5) to be
Taken Up in Connection with the Consideration of the Fifth Periodic Report of
the Government of Australia (CCPR/C/AUS/5)
, UN Doc CCPR/C/AUS/Q/5/Add.1 (2009), para 41. At http://www2.ohchr.org/english/bodies/hrc/hrcs95.htm (viewed
7 October 2010).
[41] S
Hawkins, CEO, Yamatji Marlpa Aboriginal Corporation, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 August
2010.
[42] T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2009
, Australian Human Rights Commission (2009), pp 88–93, 123
(recommendation 3.9). At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[43] Commonwealth, Parliamentary Debates, House of Representatives, 19 March
2009, p 3249 (The Hon R McClelland MP, Attorney-General). At http://www.aph.gov.au/hansard/reps/dailys/dr190309.pdf (viewed
7 October 2010).
[44] Commonwealth, Parliamentary Debates, House of Representatives, 19 March
2009, p 3249 (The Hon R McClelland MP, Attorney-General). At http://www.aph.gov.au/hansard/reps/dailys/dr190309.pdf (viewed 7 October 2010).
[45] Federal Court of
Australia Act 1976
(Cth), s 37M(1). This amendment was introduced by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth),
which commenced on
1 January 2010.
[46] Justice J Reeves, Recent Developments in the Federal Court Following the
Amendments to the
Native Title Act (Paper presented to the Native
Title: Rights, Obligations and Agreements Conference, Brisbane, 28 May 2010), p
18.
[47] L Anderson, National
Native Title Registrar, Federal Court of Australia, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner,
23 September 2010. For further information, see Justice J Reeves, Recent Developments in the Federal Court Following the Amendments to the Native Title Act (Paper presented to the Native Title: Rights,
Obligations and Agreements Conference, Brisbane, 28 May 2010).
[48] K Smith, “Our old
people are dying”; a cry for broader land settlement and social justice
not just native title claim disposition
(Speech delivered to the 2nd Annual
National Native Title Law Summit, Brisbane, 16 July 2010), p 3.
[49] Goldfields Land and Sea
Council, ‘Information requested for the Native Title Report
2010

(30 September 2010).
[50] K Smith, “Our old people are dying”; a cry for broader land
settlement and social justice not just native title claim disposition
(Speech delivered to the 2nd Annual National Native Title Law Summit, Brisbane,
16 July 2010), p 3.
[51] Joint
Working Group on Indigenous Land Settlements, 2008–09 Report: Native
Title Ministers’ Meeting
(undated), p 2. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~JWILS_Report-to_NTMM.pdf/$file/JWILS_Report-to_NTMM.pdf (viewed
7 October 2010).
[52] The Native Title Ministers’ Meeting comprises of federal, state and
territory ministers with native title responsibilities. The meeting is convened
by the federal Attorney-General. Meetings were held in 2005, 2006, 2008 and,
most recently, on 28 August 2009. See Attorney-General’s
Department, Consultation with State and Territory Governments, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Consultationwithstateandterritorygovernments (viewed
7 October 2010).
[53] Native Title Ministers’ Meeting, Communiqué (28 August 2009). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~Communique_NTMM-28.08.09.pdf/$file/Communique_NTMM-28.08.09.pdf (viewed
7 October 2010).
[54] The NTCF consists of representatives from the Attorney-General’s
Department, FaHCSIA, the Federal Court of Australia, the NNTT, state, territory and
local governments, NTRBs and NTSPs, pastoral, fishing, mining and petroleum
industries and the Australian Human Rights Commission. For further information,
see Attorney-General’s Department, Native title system coordination and
consultation
, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlesystemcoordinationandconsultation (viewed 7 October 2010).
[55] Native Title Unit,
Attorney-General’s Department, Native Title Consultative Forum: Written
Report
(9 April 2010).
[56] Native Title Unit, Attorney-General’s Department, Native Title
Consultative Forum: Written Report
(9 April 2010).
[57] P Arnaudo, A/g First Assistant Secretary, Social Inclusion Division,
Attorney-General’s Department, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, 12 August 2010;
The Hon R McClelland MP, Attorney-General, Correspondence to M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner,
20 April 2010.
[58] The
Hon R McClelland MP, Attorney-General, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner,
20 April 2010.
[59] Native Title Unit, Attorney-General’s Department, Native Title
Consultative Forum: Written Report
(9 April 2010).
[60] Native Title Unit, Attorney-General’s Department, Native Title
Consultative Forum: Written Report
(9 April 2010).
[61] P Arnaudo, A/g First Assistant Secretary, Social Inclusion Division,
Attorney-General’s Department, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner,
12 August 2010.
[62] The Hon R Hulls MP, Attorney-General (Victoria), AIATSIS Native Title
Conference 2009
(Speech delivered at the 10th Annual Native Title
Conference, Melbourne, 4 June 2009). At http://www.aiatsis.gov.au/ntru/nativetitleconference/conf2009/papers/RobertHulls.pdf (viewed
7 October 2010).
[63] Steering Committee for the Development of a Victorian Native Title Settlement
Framework, Report of the Steering Committee for the Development of a
Victorian Native Title Settlement Framework,
Department of Justice
(Victoria) (2008), p 10. At http://www.justice.vic.gov.au/wps/wcm/connect/1d97d700404a43e5ae77fff5f2791d4a/FINAL+SC+Report+13May09.pdf?MOD=AJPERES (viewed 7 October 2010). See also
T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2009
, Australian Human Rights Commission (2009), pp 47–51. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[64] The Hon R McClelland MP, Attorney-General, Australian Institute of Aboriginal
and Torres Strait Islander Studies
(Speech delivered at the 10th Annual
Native Title Conference, Melbourne, 5 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_5June2009-AustralianInstituteofAboriginalandTorresStraitIslanderStudies (viewed
7 October 2010).
[65] Victorian Traditional Owner Land Justice Group, ‘Traditional Owner Concern
Over Native Title Funding’ (Media Release, 5 November 2009). At http://www.landjustice.com.au/document/LJG-TRADITIONAL-OWNER-CONCERN-OVER-NATIVE-TITLE-FUNDING.pdf (viewed 7 October 2010). See also The Hon R Hulls MP, Attorney-General
(Victoria), ‘Commonwealth Abrogating Native Title Responsibility’
(Media Release, 5 November 2009). At http://www.premier.vic.gov.au/component/content/article/8637.html (viewed 7 October 2010).
[66] P Arnaudo, A/g First
Assistant Secretary, Social Inclusion Division, Attorney-General’s
Department, Correspondence to M Gooda, Aboriginal and Torres Strait Islander
Social Justice Commissioner, 12 August 2010. Since this
correspondence, the first settlement under the Victorian Settlement Framework
has been reached. The native title rights of the Gunaikurnai peoples were
recognised by the Federal Court in a consent determination on
22 October 2010. The Victorian and Australian governments each
contributed $6 million towards the $12 million settlement package. See The Hon R
McClelland MP, Attorney-General, and The Hon J Macklin, Minister for Families,
Housing, Community Services and Indigenous Affairs, ‘Gunaikurnai native
title recognition’ (Media Release, 22 October 2010). At http://www.ag.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_FourthQuarter_22October2010-Gunaikurnainativetitlerecognition (viewed 22 November 2010).
[67] The Hon R Hulls MP, Attorney-General, Victoria, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, 2 September
2010. The Traditional Owner Settlement Act 2010 (Vic) commenced on
23 September 2010.
[68] Joint Working Group on
Indigenous Land Settlements, Guidelines for Best Practice Flexible and
Sustainable Agreement Making
(2009). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Consultationwithstateandterritorygovernments (viewed 7 October 2010).
[69] Native Title
Ministers’ Meeting, Communiqué (28 August 2009).
At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~Communique_NTMM-28.08.09.pdf/$file/Communique_NTMM-28.08.09.pdf (viewed
7 October 2010).
[70] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), pp
65, 94–96, 112–117. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 7 October 2010).
[71] Joint Working Group on
Indigenous Land Settlements, 200809 Report: Native Title
Ministers’ Meeting
(undated), p 1. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~JWILS_Report-to_NTMM.pdf/$file/JWILS_Report-to_NTMM.pdf (viewed
7 October 2010).
[72] Queensland South Native Title Services, Submission to the Joint Working Group
on Indigenous Land Settlements on the Draft Guidelines for Best Practice
Flexible and Sustainable Agreement Making
(July 2009), pp 1, 7. At http://www.qsnts.com.au/publications/SubmissiononDraftGuidelinesforBestPracticeFlexibleandSustainableAgreementMaking.pdf (viewed
7 October 2010).
[73] S
Hawkins, CEO, Yamatji Marlpa Aboriginal Corporation, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 August
2010.
[74] T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2009
, Australian Human Rights Commission (2009), p 88. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[75] Joint Working Group on Indigenous Land Settlements, 200809
Report: Native Title Ministers’ Meeting
(undated), p 2. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~JWILS_Report-to_NTMM.pdf/$file/JWILS_Report-to_NTMM.pdf (viewed
7 October 2010).
[76] The Hon R McClelland MP, Attorney-General, ‘Proposed amendment to enable
the historical extinguishment of native title to be disregarded in certain
circumstances’ (undated), p 3 (Exposure Draft). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform#possible (viewed 7 October 2010).
[77] The Hon R McClelland MP,
Attorney-General, ‘Proposed amendment to enable the historical
extinguishment of native title to be disregarded in certain circumstances’
(undated), p 1. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform#possible (viewed 2 August 2010).
[78] Chief Justice R S French, ‘Lifting the burden of native title: Some modest
proposals for improvement’ (2009) 93 Reform 10, p 13. At http://www.austlii.edu.au/au/other/alrc/publications/reform/reform93/ (viewed
7 October 2010).
[79] W
Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002, Human Rights and Equal Opportunity Commission
(2003), p 68. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport02/index.html (viewed
7 October 2010).
[80] GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).
[81] J Anaya, Report of
the Special Rapporteur on the situation of human rights and fundamental freedoms
of indigenous people, James Anaya: Addendum: Situation of indigenous peoples in
Australia,
Report to the Human Rights Council, 15th session, UN Doc
A/HRC/15/37/Add.4 (2010), para 29. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
29 September 2010).
[82] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), pp
110–111, 124 (recommendation 3.18). At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[83] The Hon R McClelland MP, Attorney-General, ‘Proposed amendment to enable
the historical extinguishment of native title to be disregarded in certain
circumstances’ (undated), p 1. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform#possible (viewed 2 August 2010).
[84] The
Hon R McClelland MP, Attorney-General, ‘Proposed amendment to enable the
historical extinguishment of native title to be disregarded in certain
circumstances’ (undated), p 3 (Exposure Draft, proposed s 47C(1)(c)). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform#possible (viewed 7 October 2010).
[85] Australian Institute for
Aboriginal and Torres Strait Islander Studies (AIATSIS), Submission to the
Attorney-General’s Department on the Proposed Amendment to Enable the
Historical Extinguishment of Native Title to be Disregarded to Certain
Circumstances
(undated), p 2. At http://www.aiatsis.gov.au/ntru/docs/publications/submissions/s47.pdf (viewed
7 October 2010).
[86] The Hon R McClelland MP, Attorney-General, ‘$1.4 Million for native title
anthropologists’ (Media Release, 28 May 2010). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_28May2010-$1.4MillionforNativeTitleAnthropologists (viewed
7 October 2010).
[87] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, 'Supporting stronger governance in Indigenous native title
corporations' (Media Release, 3 June 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/native_title_corp_030610.aspx (viewed 11 January 2010); The Aurora Project, NTRB Scholarships, http://www.auroraproject.com.au/NTRB_scholarships.htm (viewed 11 January 2010).
[88] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), pp
121–122, 124 (recommendation 3.24). At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[89] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs and The Hon R McClelland MP, Attorney-General,
‘Supporting stronger governance in Indigenous native title
corporations’ (Media Release, 3 June 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/native_title_corp_030610.aspx (viewed 7 October 2010).
[90] Native Title Act
1993
(Cth), s 25(1).
[91] The
Government party must give notice of the act to certain parties. In this notice,
the Government party must specify a day as the ‘notification day’
for the act: Native Title Act 1993 (Cth), ss 29(1), (4)(a).
[92] Native Title Act
1993
(Cth), s 35(1).
[93] (2009) 175 FCR 141. This decision was profiled in T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2009,
Australian Human Rights Commission (2009), pp 31–35. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 7 October 2010).
[94] FMG Pilbara Pty Ltd v
Cox
(2009) 175 FCR 141, 146, 148.
[95] That is, negotiation on a
‘whole of claim’ basis is acceptable so long as it is clear to all
parties that a particular tenement (the subject of the section 29 notice) is
included in the
negotiations. 
[96] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, and The Hon R McClelland MP, Attorney-General, Discussion
Paper: Leading practice agreements: maximising outcomes from native title
benefits
(2010), p 14. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed
7 October 2010).
[97] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), p
34. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[98] Transcript of proceedings, Cox v FMG Pilbara Pty Ltd [2009] HCATrans 277
(14 October 2009). At http://www.austlii.edu.au/au/other/HCATrans/2009/277.html (viewed
14 October 2010).
[99] S Hawkins, CEO, Yamatji Marlpa Aboriginal Corporation, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, 9
August 2010.
[100] The Hon J
Macklin MP, Minister for Families, Housing, Community Services and Indigenous
Affairs, and The Hon R McClelland MP, Attorney-General, Discussion Paper:
Leading practice agreements: maximising outcomes from native title benefits
(2010). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed
7 October 2010).
[101] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, and The Hon R McClelland MP, Attorney-General, Discussion
Paper: Leading practice agreements: maximising outcomes from native title
benefits
(2010), p 14. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed
7 October 2010).
[102] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), p
34. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
7 October 2010).
[103] Australian Human Rights Commission, Submission on the Discussion Paper:
Leading practice agreements: maximising outcomes from native title benefits
(30 November 2010).
[104] The Native Title
Amendment Bill (No 2) 2009 (Cth) lapsed on 28 September 2010. The
Native Title Amendment Bill (No 1) 2010 (Cth), which is almost identical to the
original Bill, received assent on 15 December 2010 as the Native
Title Report 2010
was in the final stages of preparation. Throughout this Native Title Report 2010, I refer to the original Bill as it was
introduced during the Reporting Period.
[105] Explanatory Memorandum,
Native Title Amendment Bill (No 2) 2009 (Cth), p 2. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4230%22 (viewed
28 September 2010).
[106] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), arts 3, 18, 32(1). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
28 September 2010).
[107] Council of Australian Governments, National Partnership Agreement on Remote
Indigenous Housing
, cl 16(a). At http://www.coag.gov.au/intergov_agreements/federal_financial_relations/docs/national_partnership/national_partnership_on_remote_indigenous_housing.rtf (viewed 24 September 2010). See also Department of Families, Housing,
Community Services and Indigenous Affairs, National Partnership Agreement on
Remote Indigenous Housing
, http://www.fahcsia.gov.au/sa/indigenous/progserv/housing/Pages/RemoteIndigenousHousing.aspx (viewed
24 September 2010).
[108] Council of Australian Governments, National Partnership Agreement on Remote
Indigenous Housing
, cl 15(a). At http://www.coag.gov.au/intergov_agreements/federal_financial_relations/docs/national_partnership/national_partnership_on_remote_indigenous_housing.pdf (viewed 24 September 2010).
[109] The Hon J Macklin MP,
Minister for Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner,
18 August 2009.
[110] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010), p
4. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed
24 September 2010).
[111] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010),
p 2. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed
24 September 2010).
[112] Department of Housing (Western Australia), ‘Native Title Amendment Bill
(No 2) 2009: Commonwealth Request for Information’, p 1, Attachment A to
the Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010).
At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed
24 September 2010).
[113] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010), p
1. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 24 September 2010). Native Title Amendment Bill (No 2) 2009
(Cth), sch 1, item 3, proposed s
24JAA(1)(b).
[114] This
includes land or waters held by or for the benefit of Aboriginal peoples or
Torres Strait Islanders under the Aboriginal Land Grant (Jervis Bay
Territory) Act 1986
(Cth); Aboriginal Land (Lake Condah and Framlingham
Forest) Act 1987
(Cth); Aboriginal Land Rights (Northern Territory) Act
1976
(Cth); Aboriginal Lands Trust Act 1966 (SA); Maralinga
Tjarutja Land Rights Act 1984
(SA); Pitjantjatjara Land Rights Act
1981
(SA) or any other law, or part of a law, prescribed for the purposes of
the provision in which the expression is used: Native Title Act 1993 (Cth), s 253.
[115] Native
Title Act 1993
(Cth), s 233(3). The scope of the proposed amendment may be
even further limited, see Law Council of Australia, Supplementary submission
to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry
into the Native Title Amendment Bill (No 2) 2009 (Cth)
(31 January 2010). At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=a94aebeb-0b01-46a1-9129-11ea3903e9ff (viewed
24 September 2010).
[116] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010), p
2. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 24 September 2010).
[117] Defined as the Crown, or
a local government body or other statutory authority of the Crown, in any of its
capacities: Native Title Amendment Bill (No 2) 2009 (Cth), sch 1, item 3,
proposed s 24JAA(1)(c).
[118] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed ss 24JAA(1)(c), 24JAA(3). The Native Title Amendment Act (No 1) 2010 (Cth) also covers staff housing.
[119] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s 24JAA(1)(d).
[120] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s
24JAA(2).
[121] Commonwealth, Parliamentary Debates, House of Representatives,
21 October 2009, p 10468 (The Hon R McClelland MP, Attorney-General).
At http://www.aph.gov.au/hansard/reps/dailys/dr211009.pdf (viewed 27 September 2010).
[122] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed ss 24JAA(4),
(5).
[123] Native Title
Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s 24JAA(6). If no
claimant or body corporate requests to be consulted, the consultation period
ends two months after the specified notification day. If there is such a
request, the consultation period ends four months after the specified
notification day: Native Title Amendment Bill (No 2) 2009 (Cth), sch 1, item 3,
proposed
s 24JAA(19).
[124] Native
Title Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed ss 24JAA(7),
(8).
[125] Native Title
Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s 24JAA(1)(e). See
also Explanatory Memorandum, Native Title Amendment Bill (No 2) 2009 (Cth), p 5.
At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4230%22 (viewed
28 September 2010).
[126] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth)
(undated), p 2. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=bbf314d8-661a-4ee1-840b-8a68b00a0ce9 (viewed
28 September 2010).
[127] Native Title Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s
24JAA(10). See Native Title (Notices) Amendment Determination 2010 (No.
1).
[128] Native Title
Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s 24JAA(12).
[129] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s
24JAA(11).
[130] Law Council of
Australia, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee Inquiry into the Native Title Amendment Bill (No 2) 2009
(Cth)
(23 December 2009), para 25. At http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=91A681EE-1E4F-17FA-D2CF-53E8735AAECF&siteName=lca (viewed 27 September 2010).
[131] Harris v Great
Barrier Reef Marine Park Authority
(2000) 98 FCR 60,
73.
[132] Native Title
Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed ss 24JAA(10),
(11).
[133] W Jonas, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2000
, Human Rights and Equal Opportunity Commission (2001), p 153. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport00/index.html (viewed 28 June 2010).
[134] Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60,
71.
[135] Harris v Great
Barrier Reef Marine Park Authority
(2000) 98 FCR 60,
74.
[136] T Wright, Acting CEO,
Western Desert Lands Aboriginal Corporation (Jamakurnu-Yapalinkunu) RNTBC,
Correspondence to C Edwards, Manager — Land Reform Branch, Department of
Families, Housing, Community Services and Indigenous Affairs,
4 September 2009. At http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform (viewed
28 September 2010).
[137] Native Title Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed ss
24JAA(11)(b), (13), (14).
[138] For concerns about this limitation, see NTSCORP, Submission to the Senate
Legal and Constitutional Affairs Legislation Committee Inquiry into the Native
Title Amendment Bill (No 2) 2009 (Cth)
(27 November 2009), para
30. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=e8cbcf54-d770-497a-b3fc-9b86884627be (viewed 28 September 2010).
[139] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s
24JAA(14).
[140] Native Title
Amendment Bill (No 2) 2009 (Cth), sch 1, item 3, proposed s 24JAA(19).
[141] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed
s 24JAA(15).
[142] Explanatory Memorandum, Native Title Amendment Bill (No 2) 2009 (Cth), para
1.14. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4230%22 (viewed
28 September 2010).
[143] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth)
(undated), p 3. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=bbf314d8-661a-4ee1-840b-8a68b00a0ce9 (viewed 28 September 2010).
[144] Native Title Amendment
Bill (No 2) 2009 (Cth), sch 1, item 3, proposed
s 24JAA(16).
[145] Torres
Strait Regional Authority, Submission to the Senate Legal and Constitutional
Affairs Legislation Committee Inquiry into the Native Title Amendment Bill (No
2) 2009 (Cth)
(21 December 2009). At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=10e5d762-ea65-470f-9e9b-7adaeb4b4ce2 (viewed 28 September 2010).
[146] Attorney-General’s
Department and Department of Families, Housing, Community Services, and
Indigenous Affairs, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee Inquiry into the Native Title Amendment Bill (No 2) 2009
(Cth)
(undated), p 5. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=bbf314d8-661a-4ee1-840b-8a68b00a0ce9 (viewed
28 September 2010).
[147] Carpentaria Land Council Aboriginal Corporation, Submission to the Senate
Legal and Constitutional Affairs Legislation Committee Inquiry into the Native
Title Amendment Bill (No 2) 2009 (Cth)
(10 November 2009), para
32. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=2e81ce84-44ba-4c7f-88b4-6307d2ac55d2 (viewed
28 September 2010).
[148] National Native Title Tribunal, Annual Report 2009–10 (2010), p 13.
At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20report%202009%20-%202010.pdf (viewed
13 October 2010).
[149] See, for example, National Native Title Council, Submission to the Senate
Legal and Constitutional Affairs Legislation Committee Inquiry into the Native
Title Amendment Bill (No 2) 2009 (Cth)
(11 November 2009). At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=80a8d226-856e-4a3b-8c07-bb6aeb08135c (viewed 28 September 2010).
[150] Department of Housing
(Western Australia), ‘Native Title Amendment Bill (No 2) 2009:
Commonwealth Request for Information’, Attachment A to
Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010).
At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 28 September 2010).
[151] See, for example,
Queensland South Native Title Services, Submission on the Possible Housing
and Infrastructure Native Title Amendments Discussion Paper
(September
2009), p 8. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Queensland+South+native+Title+Services+-+Submission.pdf/$file/Queensland+South+native+Title+Services+-+Submission.pdf (viewed 29 September 2010).
[152] See Native Title
Payments Working Group, Report (undated). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Working+Group+report+-+final+version.DOC/$file/Working+Group+report+-+final+version.DOC (viewed 29 September 2010).
[153] Australian Government, Australian Government Discussion Paper (undated). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 28 September 2010).
[154] This consultation
process began with the release of the Agreements Discussion Paper on
3 July 2010, but was suspended in accordance with caretaker
conventions when the federal election was called later that month. The process
recommended in October 2010. Submissions closed 30 November 2010. See
Attorney-General’s Department, Native title reform, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed 29 November 2010).
[155] ‘Joint Working
Group on Indigenous Land Settlements: Terms of Reference
200910’ in Joint Working Group on Indigenous Land
Settlements, 2008–09 Report: Native Title Ministers’ Meeting (undated), Attachment A. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~JWILSTermsofReference_post-settlement_project_2009.pdf/$file/JWILSTermsofReference_post-settlement_project_2009.pdf (viewed 28 September 2010). The terms of reference of the JWILS were
endorsed at the Native Title Ministers’ Meeting in August 2009:
Attorney-General’s Department, Consultation with State and Territory
Governments
, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Consultationwithstateandterritorygovernments#4 (viewed
7 October 2010).
[156] The executive summary of the workshop was released for comment in July 2010. See
Joint Working Group on Indigenous Land Settlements, Governance Workshop:
Sustainable Benefits Management in Native Title Settlements: Consultation
Process
(2010).
[157] The
Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, and The Hon R McClelland MP, Attorney-General,
‘Supporting stronger governance in Indigenous native title
corporations’ (Media Release, 3 June 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/native_title_corp_030610.aspx (viewed
29 September 2010).
[158] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs and The Hon R McClelland MP, Attorney-General, Discussion
Paper: Leading practice agreements: maximising outcomes from native title
benefits
(2010). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed
7 October 2010).
[159] For criticism of this proposal see, for example, ‘Native title reforms
labelled racist, paternalistic’, The World Today,
5 July 2010. At http://www.abc.net.au/worldtoday/content/2010/s2944814.htm (viewed
28 September 2010).
[160] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, and The Hon R McClelland MP, Attorney-General, Discussion
Paper: Leading practice agreements: maximising outcomes from native title
benefits
(2010), pp 8–9. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed 28 September 2010).
[161] The Hon J Macklin MP,
Minister for Families, Housing, Community Services and Indigenous Affairs, and
The Hon R McClelland MP, Attorney-General, Discussion Paper: Leading practice
agreements: maximising outcomes from native title benefits
(2010), p 7. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed 7 October 2010). On 18 May 2010, the Treasury
released a consultation paper in which it outlined options to improve the
relationship between the taxation and the native title systems. See Australian
Government, Native Title, Indigenous Economic Development and Tax (2010).
At http://www.treasury.gov.au/documents/1809/RTF/Consultation_Paper_Native_Title_IED_and_Tax.rtf (viewed 7 October 2010). Consultations were suspended in accordance
with caretaker conventions when the federal election was called. The process
recommended in October 2010. Submissions closed 30 November 2010.
[162] Australian Human Rights
Commission, Submission on the Discussion Paper: Leading practice agreements:
maximising outcomes from native title benefits
(30 November 2010).
[163] United Nations
Declaration on the Rights of Indigenous Peoples,
GA Resolution 61/295
(Annex), UN Doc A/RES/61/295 (2007), arts 3, 18, 32. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
28 September 2010).