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14 December 2012Book page
Native Title Report 2004 : Annexure 2 : Promoting Economic and Social Development through Native Title
...the Aboriginal and Torres Strait Islander Social Justice Commissioner report on the operation of the [NTA] and its effect on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders. -
14 December 2012Book page
Native Title Report 2004: Media Pack
Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma said that native title needs to move beyond the current legal framework towards achieving the economic and social development goals of Indigenous peoples. -
14 December 2012Book page
Native Title Report 2003 : Native Title Report 2003 Summary
The Native Title Report 2003 evaluates native title as a framework for economic and social development for traditional owner groups. While the legal framework for native title restricts its capacity to improve economic and social conditions for Indigenous people, the Report recognises that the native title agreement-making process provides an invaluable opportunity for States and Territories to take a broader policy approach. The approach advocated in the Report is developed in four chapters which deal with the following topics: -
14 December 2012Book page
Native Title Report 2003 : Introduction
This is my fifth report to the Australian parliament on the effect of the Native Title Act 1993 on the human rights of Aboriginal and Torres Strait Islander Peoples. In these five years of reporting my main focus has been on the legislative and judicial developments in native title law and the effect of these developments on the recognition of Indigenous rights to land. I have also followed the dynamic relationship between the common law and the legislature in defining and then re-defining the principles that have come to govern the recognition of native title as a legal concept. -
14 December 2012Book page
Native Title Report 2003 : Chapter 1
Australia is a wealthy nation. In 2003, Australia ranked fourth in the United Nations Human Development Index (1) indicating Australians enjoyed one of the highest qualities of life in the world. Overall, Australia ranks equal fourth with the highest life expectancy at birth (79.0 years) suggesting Australians are among the healthiest people in the world. (2) -
14 December 2012Book page
Native Title Report 2003 : Chapter 2 : Native Title Policy - State and Commonwealth profiles
Human rights principles require that Indigenous people's relationships to land, based on traditional laws and customs, be given legal recognition and protection. International legal principles also recognise that Indigenous peoples have economic, social and cultural human rights. Native title, as it is constructed through the Australian legal system, has a limited capacity to meet these human rights standards. -
14 December 2012Book page
Native Title Report 2003 : Chapter 3 : An Evaluation of native title policies throughout Australia
State, Territory and Commonwealth native title policies (1) direct the way in which governments conduct negotiations with native title claimant groups and the scope and content of the agreements they make as a result of these negotiations. Such policies may influence whether negotiations will be confined to native title rights and interests as they are legally defined, or whether they address the broader economic and social development needs of the claimant group. -
14 December 2012Book page
Native Title Report 2003 : Chapter 4: Native Title and Agreement Making : a Comparative Study
The failure in Australia to perceive native title and land rights as the basis on which to address Indigenous economic and social development has been evident at legal, policy and administrative levels. Legally, the increasingly narrow interpretation of native title by the High Court has, as Noel Pearson has pointed out, stripped native title of much economic meaning or benefit. -
14 December 2012Book page
Native Title Report 2002: Introduction
The year under review in this, my fourth Native Title Report, is a year in which the High Court has handed down its decision in several significant native title cases thus elucidating the principles upon which the recognition and extinguishment of native title are determined. 2002 marks the end of a ten year period since the Mabo decision [1] first introduced the dual concepts of recognising and extinguishing native title. -
14 December 2012Book page
Native Title Report 2002: Recognition of native title
Native title is an intersection of two different legal systems and cultures. The way in which Australia chooses to give recognition to the relationship that Indigenous people have with their land, and the range of options it considers to express that relationship, are matters that affect the human rights of Indigenous people. -
14 December 2012Book page
Native Title Report 2002: Extinguishment of Native Title
The two recent High Court decisions in Miriuwung Gajerrong [1] and Wilson v Anderson [2] have clarified some important issues regarding the extinguishment of native title under the Native Title Act 1993 (Cwlth) (‘NTA’) and its relationship with extinguishment under the common law. They also provide some important insights into the meaning of discrimination as it responds to the specific issues raised by the recognition of native title, a proprietary interest which is inherent to a particular racial group. -
14 December 2012Book page
Native Title Report 2002: Discrimination and native title
The resolution of the debate as to whether the extinguishment of native title by the common law and the Native Title Act 1993 (Cwlth) (‘NTA’) is racially discriminatory, depends upon the interpretation given to its two essential components: extinguishment and discrimination. The interpretation that the High Court has given to the extinguishment provisions of the NTA and its relationship with the common law was the subject of the chapter 2. It is to the second of these components, the meaning of discrimination as it applies to the extinguishment of native title, that I now turn. -
14 December 2012Book page
Native Title Report 2002: Implications of Miriuwung Gajerrong & Wilson v Anderson
The reasoning of the High Court in Wilson v Anderson [1] and Miriuwung Gajerrong [2] provides a comprehensive analysis of the operation of the Native Title Act 1993 (Cwlth) (‘NTA’). It is detailed and legally complex. In discussing NSW crown land legislation, Justice Kirby made the following observation about the NTA and the native title system: -
14 December 2012Book page
Native Title Report 2002: Native title: the way forward
In the past 12 months the High Court has handed down several significant decisions which clarified the principles upon which the recognition and extinguishment of native title are determined. These principles are set out and discussed in the first three chapters of this report. In clarifying these principles, some of the Judges of the High Court have been mindful of their effect on Indigenous people. -
14 December 2012Book page
Native Title Report 2002: Principles of Discrimination and Native Title
Miriuwung Gajerrong [1] reiterates the principles which guide the High Court’s interpretation of whether laws of the Commonwealth, State or Territory are discriminatory under the Racial Discrimination Act 1975 (Cwlth) (‘RDA’), particularly as they apply to legislation which authorises dealings with land. These principles are based on the High Court’s decisions in Gerhardy v Brown, [2] Mabo (No 1), [3] and Western Australia v The Commonwealth [4] (‘Native Title Act Case’). The key principles are set out below. -
14 December 2012Book page
Native Title Report 2002: Table of Tenures/Interests and their Affect on Native Title
It is important to note that most tenures and interests continue to affect native title even after they have ceased. So, for instance, an area of land may currently be unallocated crown land, but all previous tenures/interests in that land will have permanently affected, and possibly extinguished, native title rights (unless the land comes within the few exceptions under the Native Title Act 1993 (Cwlth) (‘NTA’) – sections 47, 47A & 47B). The following table summarises tenures examined in Miriuwung Gajerrong [1] and Wilson v Anderson. [2] -
14 December 2012Book page
Native Title Report 2002: Summary of the Validation & Confirmation of Extinguishment Provisions in the NTA
In the High Court’s formulation of native title in Mabo (No 2), [1] delivered on 3 June 1992, it was made clear that in the past, governments could validly grant interests in land that would extinguish native title. These grants could be made without payment of compensation to native title holders. [2] At least that was as far as the common law was concerned. The Court did not need to consider the effect of the Racial Discrimination Act 1975 (Cwlth) (‘RDA’) on laws and grants after the RDA came into force on 31 October 1975. -
14 December 2012Book page
HREOC Social Justice Report 2002: Summary
The Social Justice Report 2002 discusses initiatives currently underway or in development at the federal, state and territory levels in relation to Aboriginal and Torres Strait Islander Affairs. The report commends the following positive developments in Indigenous policy: -
14 December 2012Book page
HREOC Social Justice Report 2002: Media Pack
This document is intended to provide a brief overview of the main findings of the Social Justice Report 2002. See the executive summary of the report for a more detailed description of the reports findings. -
14 December 2012Book page
Native Title Report 2001: Introduction
Native title was recognised by the High Court, nearly ten years ago, on 3 June 1992. The Mabo decision [1] gave recognition to the unique and profound relationship that Indigenous people have always had with their land.
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