Native Title Report 2002

Contents

Introduction

Chapter 1: Recognition of native title

Introduction

Human Rights Standards relevant to the Recognition of Native Title

• Cultural Rights
• Equality and Non-Discrimination
  • Relationship between equality and rights of minorities to protection of their culture
• Freedom of Religion and Belief
• Self Determination
  • Human Rights Committee
  • Committee on Economic, Social and Cultural Rights

The Legal Recognition of Native Title

• The Process of Recognition
  • Sovereignty and the recognition of native title
  • Native title as a bundle of rights and interests
• The Relationship between the Recognition and Extinguishment of Native Title
• Observing and Acknowledging Traditional Laws and Customs under NTA s223(1)(a)
• Establishing Connection to Country under s223(1)(b)
  • Interpretation of connection to country in De Rose v South Australia
  • Interpretation of connection to country in Kennedy v Queensland
• Limitations set by the Courts on the Protection of Cultural Knowledge
• Recognition by the Common Law under s223(1)(c)

Conclusion

Chapter 2: Extinguishment of Native Title

Extinguishment

• Mechanisms of Extinguishment: An Overview
• Criteria for Extinguishment not Co-existence
  • Identifying Rights
  • Comparing Rights
  • Finding inconsistency
  • Finding extinguishment
• NTA Prescribes Complete and Partial Extinguishment of Native Title
  • The confirmation provisions
  • The validation provisions
  • Interaction of the validation and confirmation provisions
• NTA Fails to Proscribe Extinguishment Resulting from the Application of General Principles
  • The NTA fails to proscribe the extinguishing effect of historic tenures

Limited compensation for the deprivation of native title rights

Conclusion

Chapter 3: Discrimination and native title

Principles of Discrimination under Australian Law

Application of the Racial Discrimination Act to the Extinguishment of Native Title

Extinguishment and Discrimination under the Native Title Act

Extinguishment of Native Title at International Law

Comparing the Domestic and International Standard of Equality

Chapter 4: Implications of Miriuwung Gajerrong and Wilson v Anderson

Miriuwung Gajerrong

• Extinguishment – Native Title in Nature Reserves
  • Effect of the Racial Discrimination Act 1975
• Nature Reserves in Western Australia
  • Martu
  • Gibson Desert native title applicants
• A Human Rights Appraisal
  • The exercise and enjoyment of culture
  • Self determination
  • Effective participation
• Sustainable Development
  • Sustainability in Western Australia
  • Extinguishment and sustainability
• The Western Australian Conservation Estate – a Human Rights Framework Approach
  • Recognition and protection of traditional interests in conservation areas
  • Conditional terms
  • Protection of rights and interests

Wilson v Anderson

• The Western Lands Act
  • The effect of land administration in western New South Wales
• Extinguishment of Native Title in the Western Division
• The Human Rights Implications of Extinguishment in the Western Division
  • Native title
  • Enjoyment of culture
  • Self determination and effective participation
• Response to a Human Rights Approach

Chapter 5: Native title: the way forward

Levels of Reform

• Mechanisms of Change
  • Tier one: amending Commonwealth legislation
  • Tier two: amending State and Territory legislation
  • Tier three: agreements

Beyond Native Title

Annexures

1. Principles of Discrimination and Native Title

2. Table of Tenures/Interests and their Affect on Native Title

3. Summary of the Validation and Confirmation of Extinguishment Provisions in the Native Title Act 1993

Download the Native Title Report 2002

The Native Title Report 2002 is available for download in PDF format (1.4MB)

To obtain a copy of the report in hard copy format visit the HREOC Publications page

Media Release - Native Title Report 2002

• Click here to access the Media Release announcing the tabling of the Native Title Report 2002

• Click here to access the Press Statement delivered by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner at the launch of the Social Justice and Native Title Reports 2002

19 March 2003.