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This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made by Mr Hocine Kaci on 18 May 2000. The complaint is against the Commonwealth of Australia (Department of Immigration, Multicultural and Indigenous Affairs) ("DIMIA") under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act").

In the contemporary world, especially amongst first world economies, the culture of civil liberties, freedoms and non-discrimination are reasonably well established and these precepts have clear links to innovation, creativity and the broader concepts of economic productivity and a well-functioning civil society.

Native Title Report 2007 back to contents Appendix 5 ILUAs where a local government authority is an applicant or a party ILUA No. ILUA short name Date Lodged Status Date Registered QI01/10 Urandangie (Marmanya) ILUA 23/08/2001 Registered 24/05/2002 QI01/26 Aurukun Township & Access Road Agreement 24/06/2002 Registered 18/03/2003 QI01/53 Bar-Barrum and Mareeba Shire Council ILUA 09/11/2001 ...

The Australian Government has signalled that economic development is a central focus for the Indigenous Affairs portfolio this term. The Ministerial Taskforce on Indigenous Affairs, created in May 2004 to drive and coordinate the federal Government’s Indigenous policies,1 identified as one of three key areas2 for priority action:

A central function of the Human Rights and Equal Opportunity Commission is to undertake education programs that increase public awareness and generate discussion of human rights and anti-discrimination issues within Australia.

At the international level there are three broad categories of obligation to which a state may be subject: treaty law, customary international law and emerging international standards. Treaty obligations become binding on states once they have ratified a treaty. This means that the state allows itself to be bound by the conditions and obligations contained within the treaty. Customary international law is enshrined in continuous practice by a majority of states over an extended period of time.

In my previous two Native Title Reports, I have strongly argued the need to reform the native title system. Stakeholders from all sectors engaged in the native title system have also stressed the need for the Government to take significant steps to ensure that the system meets the original objectives set out in the preamble to the Native Title Act 1993 (Cth) (Native Title Act).

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.

Securing sustainable and just economic outcomes for Aboriginal traditional owners and residential communities in the remote regions of the Northern Territory has been an elusive goal for national and Territory governments, various public agencies and community groups for many years. The increasing value and intact environmental nature of much of the Indigenous estate across the North of Australia in a carbon trading context offers opportunities that could create sustainable on-country development for traditional owners in the region through new and exciting economies.

In my Native Title Report 2007, I reported on the changes that were made to the native title system during that year. The changes, which were made through two pieces of legislation which amended the Native Title Act, primarily affected:

This report has focused on proposals for the leasing or alienation of Indigenous land, with a specific focus on the Indigenous Land Tenure Principles released by the National Indigenous Council (NIC). The purpose of this Chapter is to discuss these Principles from a human rights perspective, with a particular focus on the right to development.

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

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.

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.

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:

I am convinced that climate change, and what we do about it, will define us, our era, and ultimately the global legacy we leave for future generations. Today, the time for doubt has passed.[1] Ban Ki-moon, Secretary-General, United Nations