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Native title agreements are emerging as an important tool in defining the rights of native title holders over their land. As Aboriginal and Torres Strait Islander Social Justice Commissioner I welcome negotiation and agreement-making as a way of establishing a stable and enduring basis for a dynamic and long term relationship between Indigenous and non-Indigenous people over land. However I am concerned that throughout this process there are currently no mechanisms to ensure that the human rights of Indigenous people are being respected.

The application of human rights principles to native title has been the subject of an ongoing dialogue taking place both nationally and internationally in the reporting period.

This year the High Court will decide fundamental issues about the nature of native title and the extent to which it is protected by the common law. In hearing the appeal of the Miriuwung, Gajerrong and Balangarra peoples from the decision of the Full Federal Court in Western Australia v Ward (1) the court will be called upon to arbitrate an old dispute that has never been settled; that between Indigenous and non-Indigenous people as competing claimants for land. In this arbitration process the survival of non-Indigenous interests is assured.

One of the major events of the period covered by this report was the handing down of the decision by the full Federal Court in the Croker Island case (1) on appeal from the decision of Justice Olney. (2) It is the major test case on the recognition of native title sea rights and represents the most authoritative statement of the law in Australia at the present time. It was a split decision and this chapter analyses the human rights implications of the different legal positions adopted by the majority and the minority decisions of the court.

The recognition of native title by the High Court in 1992 was a significant development in the legal apparatus for protecting Indigenous culture. Under the concept of native title it is possible that sacred and significant sites and objects might be protected, not within the historical category of Aboriginal heritage, but as matters valued in contemporary Indigenous culture with current significance to a people whose culture is ongoing. In addition, under native title such protection could be provided, not as an act of beneficence by government, but as a matter of legal right.

In 1999 and 2000 the Committee on the Elimination of Racial Discrimination (the CERD Committee) and the Human Rights Committee (HRC) of the United Nations both criticised the 1998 amendments to the Native Title Act 1993 (the NTA) as limiting the rights of Indigenous people.(1) The committees found that the amendments were discriminatory and recommended that Australia either suspend implementation of the 1998 amendments (2) or amend the NTA anew.(3) No action has since been taken to lessen the discriminatory impact of the 1998 amendments and the true extent of the diminution of native title par

(a) whether the finding of the Committee on the Elimination of Racial Discrimination (CERD Committee) that the Native Title Amendment Act 1998 is inconsistent with Australia's international legal obligations, in particular the Convention on the Elimination of all Forms of Racial Discrimination, is sustainable on the weight of informed opinion;

1) Committee on the Elimination of All Forms of Racial Discrimination (CERD): additional information to Australia's 10 th , 11 th and 12 th periodic reports under CERD, March 2000; 2) Human Rights Committee: additional information to Australia's third and fourth periodic reports, for consideration during the 69 th session, July 2000; and 3) Committee on Economic, Social and Cultural Rights: information in relation to consideration of Australia, August 2000.

1. The Committee considered the tenth, eleventh and twelfth periodic reports of Australia, submitted as one document (CERD/C/335/Add.2), at its 1393rd, 1394th and 1395th meetings (CERD/C/SR.1393, 1394 and 1395), held on 21 and 22March 2000. At its 1398th meeting, held on 24 March 2000, it adopted the following concluding observations.

1. The Committee examined the third and fourth periodic reports of Australia (CCPR/C/AUS/99/3 and 4) at its 1855th, 1857th and 1858th meetings, held on 20 and 21 July 2000. At its 1867th meeting on 28 July 2000, the Committee adopted the following concluding observations.

The following instruments, declarations, principles and guidelines set out Australia's International human rights obligations with regard to cultural heritage protection.

Our life pattern was created by the government policies and are forever with me, as though an invisible anchor around my neck. The moments that should be shared and rejoiced by a family unit, for [my brother] and mum and I are forever lost. The stolen years that are worth more than any treasure are irrecoverable. </strong>Confidential submission 338, Victoria.</em>