Native Title Report 2000: Contents
Aboriginal and Torres Strait Islander Social Justice
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Contents
Introduction
Chapter 1: Nation in dialogue
The dialogue with the Parliamentary Joint Committee on Native Title
Treating differences differently
The PJC majority report
Applying the test of 'legitimacy' to the NTA amendments
The right to negotiat
The dialogue with the CERD Committee, March 2000
The standard of equality under ICERD
The requirement of effective participation
The dialogue with the Human Rights Committee, July 2000
The HRC's observations and recommendations in relation to native title
The dialogue between the Human Rights Committee and the Australian government
Maintaining the dialogue on human rights
The dialogue around reconciliation
'Our nation must have the courage to own the truth'
Enlarged notion of terra nullius
Overturning terra nullius
Filling the Gap
Chapter 2: Definition and extinguishment of native title by the common law
Issues in the Miriuwung Gajerrong case
Impact of developments in the common law upon the human rights of Aboriginal people
The right to equality
The right to protection of property
The right to enjoyment of culture
The right to self-determination
Freedom of Religion
Application of these principles to native title
The common law recognition of native title within a human rights framework
Translating Indigenous relationships to land into a bundle of rights
Translating Indigenous relationships to land into a right to land
Chapter 3: Native title and sea rights
1. Overview of the variety of indigenous traditions relating to sea country
Diversity
2. Relevant international human rights standards
Equality
Protection of culture
Self-determination
Other international norms
3. Common law recognition of native title rights to the sea
Evidence in the Croker Island case: a unique and complex system of laws
The Croker Island decision
Alternatives to non-recognition
Conclusion about the common law
4. Recognition of native title rights to the sea under the Native Title Act 1993
Prioritising non-Indigenous interests
Procedural rights
The non-extinguishment principle: s 44C
Subsistence fishing rights and traditional access rights: s 211
5. The consequences of the non-recognition of exclusive native title rights
Non-exclusive rights
Non-exclusive access rights, possible exclusive native title fishery
Exclusive native title rights subject only to innocent passage
Chapter 4: Indigenous heritage
International discourse on Indigenous heritage protection
Human Rights Committee
Report of the seminar on the draft principles and guidelines for the protection of the heritage of indigenous people by Chairperson -Rapporteur Erica-Irene Daes
Protecting Indigenous heritage in Australia
Protection of Indigenous heritage through native title
The common law protection of Indigenous heritage
Limitations resulting from extinguishment of native title
The denial and reduction of procedural rights by the amendments to the NTA
Denial of procedural rights
Reduction of procedural rights
Judicial interpretation of procedural rights under the NTA
The reliance in the NTA upon inadequate protection provided in Commonwealth, State and Territory heritage legislation
Freehold Test
The right to negotiate
Alternative provision schemes
The protection of Indigenous culture through heritage legislation
The Evatt Report on the Commonwealth Heritage Act
Reforming state and territory heritage protection legislation to ensure effective interaction with a reformed Commonwealth Act
The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998
Protection of Indigenous Heritage
Self Determination
Chapter 5: Implementing the amendments to the Native Title Act
Procedural rights
Introduction
Significance of procedural rights to native title
Procedural rights in a human rights framework
The extent and nature of the right granted by the 'opportunity to comment' provisions
The time limits governing the right to negotiate
Access to procedural rights and the statutory right to judicial review of a refusal to register a claim
Enforceability of procedural rights
Procedural rights under the alternative state regimes
Alternative s 43A schemes
Section 26A, 26B and 26C Schemes
The re-recognition of native title representative bodies
Appendix 1:
Submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund
Appendix 2:
Information concerning native title provided by the Human Rights and Equal Opportunity Commission to United Nations Committees in 2000
Appendix 3:
Concluding observations on Australia of the International Committee on the Elimination of Racial Discrimination, 24 March 2000
Appendix 4:
Concluding observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (Concluding Observations/Comments)
Appendix 5:
The international standards relevant to heritage protection
