Search results

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…

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…

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:

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…

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 …

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…

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…

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:

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.

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.

A stable and enduring basis for a dynamic and long term relationship between Indigenous and non-Indigenous people over land is emerging through negotiation and agreement-making. Native title agreements are increasingly seen as an important tool in defining the rights of native title holders over their land. But here, as in other aspects of native title, there is concern that there are currently…

back to contents Native Title Report 2001 Appendix 1: Compiled Recommendations Chapter One - The right to negotiate and human rights That state and territory government departments administering the issue of future act notifications develop strategic plans, in consultation with NTRBs, with the aim of improving the efficiency of their administrative practices. The manner and rate of…

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…

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…

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…

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…

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…

(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:…