Chapter 2: Looking back on 20 years of native title and the Social Justice Commissioner role

2.1 Introduction^[1]

Successive Aboriginal and Torres Strait Islander Social Justice Commissioners (Social Justice Commissioners) have always shown constant leadership and advocacy in reporting on Aboriginal and Torres Strait Islander peoples’ rights to our lands and waters in the 19 Native Title Reports written between 1994 and 2012.^[2] These Reports consistently show that social justice is entwined with our relationship to our lands and waters, and our right to protect and respect culture.

Native Title Reports by Social Justice Commissioners over the past 20 years reflect the statutory requirement in section 209 of the Native Title Act 1993 (Cth) (Native Title Act) for the role of the Commissioner to report on the effect of the Act ‘on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders’.^[3]

Professor Dodson, in the first Native Title Report, remarked that while there are other statutory bodies that also report on native title, the role of the Social Justice Commissioner is:

uniquely charged with monitoring the legislation in terms of its impact on the human rights of Aboriginal and Torres Strait Islander peoples. I undertake this responsibility as an Aboriginal person and as the Social Justice Commissioner from the perspective of Indigenous Australians.^[4]

However, the Native Title Reports represent far more than Social Justice Commissioners simply complying with legislation. As Aboriginal and Torres Strait Islander peoples who have lived continuously in this country for more than 70 000 years, our relationships to our lands, territories and resources are the foundation of our cultural, social and economic lives. And so for Social Justice Commissioners, reporting on native title is a crucial part of reporting on the exercise and enjoyment of our human rights.

Looking back at 20 years of Reports provides a remarkable view of native title. It illustrates our celebrations, but also our frustrations, to access our rights to traditional lands and waters.

2.2 Looking back on 20 years of native title

(a) The Mabo decision

In 1992, the Mabo^[5] decision by the High Court established a fundamental change to how our rights and interests in our traditional lands and waters were – and continue to be – considered by governments, courts, industry and the wider Australian community.

Mabo overturned the myth of terra nullius by finding that native title had survived the British occupation of our lands. Importantly, it acknowledged our human rights as Indigenous peoples to the lands and waters that we have traditionally owned and occupied.

As the first Social Justice Commissioner appointed shortly after the Mabo decision, Professor Dodson explained the significance of the High Court judgement for Aboriginal and Torres Strait Islander peoples:

[We] have been here for a long, long time. The British came along, took our country without our consent, decimated the population, and ignored any rights we may have had. They asserted in fact that we had no rights. That was wrong of course. And that remained unaddressed for two centuries or more. That’s what Mabo meant [for Aboriginal and Torres Strait Islander peoples] – Mabo addressed that wrong.^[6]

Mabo recognised at common law what Indigenous Australians already knew; that we have maintained native title to our lands and waters in accordance with our laws and customs. And we have done this despite enduring more than 200 years of colonisation and government policies that removed many Aboriginal and Torres Strait Islander peoples from their traditional lands.

But it was the Mabo decision that instigated the Australian Government to deliver the Native Title Act which recognised in legislation the continuing connection of Aboriginal and Torres Strait Islander peoples to our lands and waters.

(b) Negotiating the Native Title Act

Following Mabo, then Prime Minister Paul Keating led the process to develop a legislative framework that would protect the integrity of the Mabo decision and establish a system that would deal with future native title claims.^[7]

As I recalled in chapter 1, the early 1990s were days of hope and optimism for Aboriginal and Torres Strait Islander peoples. And this optimism was strengthened further by the Mabo decision. But while Mabo and the Prime Minister’s subsequent proposal to support native title in legislation was welcomed by many Australians, it also triggered scare-mongering amongst others – particularly state governments, and mining and pastoralist groups – who feared that native title would harm their interests in land.^[8]

It was within this context of high emotions and conflicting interests that the Prime Minister commenced negotiations for the proposed Native Title Act.

These negotiations brought together Aboriginal leaders who were invited to directly reach a deal with the Prime Minister. The Social Justice Commissioner at the time, Professor Dodson, played a leadership role in these negotiations. He has observed that the negotiation process was ‘something different for the [Aboriginal] leadership, probably the first time when we had such a huge issue being directly negotiated with the Prime Minister.’^[9]

Following a protracted negotiation process that involved both public protests by Aboriginal and Torres Strait Islander peoples and private negotiations between the Prime Minister and Aboriginal leaders, the Native Title Act passed through Parliament 18 months after the Mabo decision.

(c) The objectives of the Native Title Act

The Native Title Act, as it was written in 1993, ‘endeavoured to accommodate the realities of the past and provide a fair way to deal with land in the future, based on contemporary notions of justice’.^[10] This is reflected in the Preamble to the Native Title Act which states that in enacting the law, the people of Australian intend:

(a) to rectify the consequences of past injustices...for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.^[11]

As observed by Professor Dodson, the provisions of the Native Title Act ‘constitute an attempt to balance many competing interests.’^[12] Again this is shown in the Preamble to the Act, which acknowledges that it is ‘particularly important to ensure that native title holders are now able to enjoy fully their rights and interests’; but also states that ‘native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates’.^[13]

Sadly, the Native Title Act as it was drafted in 1993 reflects the high water mark in terms of our native title. I will discuss later how the interaction of case law and the political context led to subsequent amendments to the Act.

(d) Key themes in the Native Title Reports

The Native Title Reports show the inextricable connection between native title and our lands, territories and resources by not only reporting on the native title system but also by discussing a wide range of matters that affect these lands, territories and resources. For example, Social Justice Commissioners have addressed the following topics in the Reports:

• Provisions in the Native Title Act and legislative amendments to the Act. This has included explaining provisions in the legislation, highlighting deficiencies in the legislation that affect the rights of Aboriginal and Torres Strait Islander peoples, and recommending changes to rectify these deficiencies.
• Native title processes such as the registration test, future acts, the right to negotiate and Indigenous Land Use Agreements (ILUAs). For example, in the Native Title Report 1996, the right to negotiate was highlighted as an essential mechanism to balance Indigenous and non-Indigenous interests through the Native Title Act.^[14]
• The organisations that operate in the native title system. These include Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs), Prescribed Bodies Corporate (PBCs),^[15] the National Native Title Tribunal, the Federal Court of Australia, and federal and state government agencies.^[16]
• Climate change and water rights. The Native Title Report 2008 analysed climate change policies and legislation, particularly focusing on the impact of climate change on Aboriginal and Torres Strait Islander peoples, and opportunities from climate change policies for native title holders.^[17] This Report also discussed access to cultural water rights to fulfil cultural responsibilities (such as environmental conservation) and the lack of protection of these rights to water under the legislative framework that governs water resources.^[18]
• Economic development and resource management. A number of Native Title Reports have considered how to balance competing economic interests within the native title system.^[19] This has included issues such as the desire for certainty over land tenure by mining and pastoralist interests, and opportunities for using native title to achieve economic development for Aboriginal and Torres Strait Islander peoples.
• Protecting Indigenous knowledge and developing protocols around the use, access and ownership of Indigenous knowledge that includes a protection regime similar to copyright and patenting.^[20]

Reviewing these topics, the Social Justice Commissioners reflect on the following key themes throughout the Reports.

(i) Native title recognises our fundamental human rights to our lands, territories and resources as the First Australians

The High Court decision in Mabo was founded on human rights. Justice Brennan said in his judgement:

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.^[21]

This was also observed by Professor Dodson, who stated that the ‘recognition of native title [i]s more than a recognition of Indigenous property interests, it is also about the recognition of our human rights’.^[22] He further remarked that the international instruments of human rights ratified by Australia are ‘relevant to native title in that they protect property against arbitrary and discriminatory interference and...provide rights to the free exercise of culture’.^[23]

The international human rights instruments – including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of all forms of Racial Discrimination – have been consistently used by Social Justice Commissioners to assess the status of the native title system.

More recently, I have reported on native title in view of our human rights set out in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). In the Native Title Report 2010, I considered how consultation and our right to free, prior and informed consent apply in the native title system;^[24] and the Native Title Report 2012 looked at the governance of PBCs through the human rights lens of the Declaration.^[25]

Notably, international human rights mechanisms have criticised the Australian Government in relation to the Native Title Act. In 2010, the Committee for the Elimination of Racial Discrimination (CERD) reiterated:

...in full its concern about the Native Title Act 1993 and its amendments, the Committee regrets the persisting high standards of proof required for recognition of the relationship between indigenous peoples and their traditional lands, and the fact that despite a large investment of time and resources by indigenous peoples, many are unable to obtain recognition of their relationship to land (art. 5).^[26]

(ii) Common law decisions and amendments to the Native Title Act have diminished our rights and interests in native title

The promise of the Mabo decision and the Native Title Act as drafted in 1993 has not been fully realised. Subsequent decisions made in the Federal and High Courts, and successive amendments made to the Native Title Act by governments have played a key role in the failure of the native title system to meet expectations.

Explaining the effect of common law decisions on the Native Title Act, Professor Dodson remarked that:

A notable feature of the NTA [Native Title Act] is its dependence on the common law to give substance to its provisions. For example, the crucial definition of native title in the Act is open-ended, it picks up the common law as articulated by the judges in Mabo [No.2] but it does not guide or restrict the development of that definition in future judicial decisions. Another important example of the NTA’s deference to common law is that it does not make any provision about the effect on native title of valid past grants of interests.^[27]

Nonetheless, while the High Court decision in Wik Peoples v Queensland^[28] in 1996 laid a foundation for the co-existence of shared interests in land, the Government’s responding amendments to the Native Title Act in 1998 created ‘“bucketloads” of extinguishment’.^[29] It also ensured the ‘exercise of powers unambiguously authorised by the NTA [Native Title Act] is freed from the constraints of the RDA [Racial Discrimination Act]’.^[30]

Reviewing the effect of the 1998 amendments to the Native Title Act after a period of ten years, Dr Calma commented in the Native Title Report 2009 that:

Many of these [1998] amendments were justified on the basis of pursuing formal equality. Yet it is now widely accepted that the amendments seriously undermined the protection and recognition of the native title rights of Aboriginal and Torres Strait Islander people.^[31]

As I mentioned earlier, these amendments to the Native Title Act in 1998 were – and continue to be – widely criticised internationally by the CERD and the United Nations Human Rights Committee.^[32]

Decisions by the High Court in Yorta Yorta v Victoria (Yorta Yorta)^[33] and Western Australia v Ward (Ward)^[34] in 2002 further limited our opportunities for native title. In Yorta Yorta, the High Court set out the onerous requirements to demonstrate native title, which involves the native title claim group proving they have maintained a continuous connection to their traditional lands in accordance with their traditional (pre-sovereignty) laws and customs;^[35] while Ward established the principles for the partial and permanent extinguishment of native title rights and interests.^[36]

Reflecting on these decisions in the Native Title Report 2002, Dr Jonas observed that:

Emerging from the High Court is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their cultural and property rights, but rather one where the law becomes a barrier to their enjoyment and protection. It is appropriate, now that the law has been crystallised by the High Court, to consider whether the way in which Australia has chosen to given recognition to Indigenous relationships to land is consistent with the human rights standards Australia has undertaken to uphold.^[37]

Despite further amendments to the Native Title Act in 2007, 2009 and 2010 (see Text Box 2.1), none of these amendments have mitigated the onerous burden for us to prove our native title following the Yorta Yorta decision or have acknowledged the negative impact on our communities of extinguishing native title post-Ward.

Instead, decisions made by the courts and amendments to the Native Title Act by the Government have been viewed as ‘clarifying’ the native title process. But, as demonstrated by the 1998 amendments to the Act and the Yorta Yorta and Ward decisions by the High Courts, these changes have further diminished native title rights and interests in our lands, territories and resources. More recent amendments to the Native Title Act have been relatively minor and have provided no substantive benefits to native title claim groups: see Text Box 2.1.

 

(iii) Native title has created opportunities but also stresses for our communities

Native title has produced many opportunities for Aboriginal and Torres Strait Islander peoples. At its most basic, it has acknowledged our rights as Aboriginal and Torres Strait Islander peoples, and has enabled us to gain social and economic opportunities by providing a ‘seat at the negotiation table’ with stakeholders who want to access native title lands.

Diagrams 2.1 and 2.2 show the determinations that have recognised our native title and the ILUAs that have been negotiated with native title groups across the country.

Diagram 2.1: Total determinations of native title as at 30 June 2013^[44]

[insert sjnt2013_chapter_200.jpg]

 

Diagram 2.1 shows the cumulative number of determinations of native title between 1992 and June 2013.

The long-term trend shows a reasonably consistent increase in native title determinations after June 2000, with a significantly higher number of determinations post-2010.

However, there are two notable periods of uncertainty where there is no or minimal increase in the number of native title determinations: from June 1998 to June 2000, following the 1998 amendments to the Native Title Act; and between June 2002 and December 2003, after the Yorta Yorta and Ward decisions by the High Court.

Diagram 2.2: Registered Indigenous Land Use Agreements per financial year 1998–2013^[45]

[insert sjnt2013_chapter_201.jpg]

 

Diagram 2.2 illustrates an increasing trend towards agreement-making as a component of resolving native title matters.^[46] This positive shift towards agreements was instigated by the 1998 amendments to the Native Title Act which introduced ILUAs as a mechanism for parties to negotiate about native title matters.

Agreement-making has provided a welcome opportunity to build relationships between native title groups and external stakeholders. This has been critical given the early years of native title were filled with litigation that took time and consumed financial resources.

Litigation created an adversarial environment for negotiating native title rights and interests – with these disputes further depriving Aboriginal and Torres Strait Islander peoples of rights. And following the Yorta Yorta and Ward decisions in 2002, Aboriginal and Torres Strait Islanders raised obvious questions about whether common law decisions would protect and strengthen native title.

Native title outcomes for Aboriginal and Torres Strait Islander peoples have varied widely across the country. Some native title groups have successfully negotiated benefits with mining companies, other stakeholders and government bodies; while for other groups, the recognition of their native title has been largely symbolic.^[47] And although there can be immense benefits from symbolic outcomes, this needs to be balanced with tangible outcomes for native title groups.

Native title has also created long processes and difficult systems that have contributed to stresses within and between our peoples and communities. Some of us have seen our old people die before their native title was recognised. And many of us have observed people in communities fight with each other during the process to have native title determined.

This observation was reported by Professor Dodson in 1994:

Native title has been the source of cohesion and dispute as the opportunity of gaining title has both opened up expectations of the return of country and tensions and wounds around connections to country, family histories and community relationships...^[48]

The period following the enactment of the NTA [Native Title Act] has given rise to a strong sense of frustration for native title claimants as the prospect of completing successful claims emerged as a distant reality. Instead of gaining recognition of native title, Indigenous claimants found themselves enmeshed in the intricacies of having their claims accepted.^[49]

These frustrations with the native title system are still being reported. In the Native Title Report 2011, I spoke about the concept of lateral violence and my concern that the native title process can affect the level of conflict and abuse within Aboriginal and Torres Strait Islander communities. In particular, I stated:

It is my view that the...Native Title Act, which codifies a process that can lead to the recognition of our lands, has the potential to generate positive outcomes for our communities. But too often this potential is not realised and lateral violence fragments our communities as we navigate the native title system.^[50]

All Social Justice Commissioners have argued that we need to ensure the native title system creates more positive outcomes and fewer stresses for our people. We acknowledge that native title provides tremendous opportunities for Aboriginal and Torres Strait Islander peoples. But the process of determining native title can be detrimental to our communities.

(iv) The need for native title reform

The final theme throughout the Native Title Reports is repeated recommendations for Government to reform the native title system.

The focus of many of these recommendations has been the need to create a just and fair native title system that is consistent with international human rights standards. Such a process is articulated in Article 27 of the Declaration:

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

All Social Justice Commissioners have questioned whether the Native Title Act provides a fair, independent, impartial, open and transparent process for Aboriginal and Torres Strait Islander peoples.

In the Native Title Report 2009, Dr Calma set out the way ‘towards a just and equitable native title system’,^[51] and 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.^[52]

It is critical that we think long term about how we want to reform the native title system, especially because native title will be held by our future generations.

(e) Unfinished business: a Social Justice Package

In 1993, it was intended that the Native Title Act would be one of three complementary components to address the historical dispossession of Aboriginal and Torres Strait Islander peoples from their lands and waters.

The other two components were the establishment of a land fund and the creation of a social justice package to compensate Aboriginal and Torres Strait Islander peoples who would not be able to access native title.

The impact of dispossession and the absence of redress by the Australian Government was acknowledged in the Preamble to the Act:

[Aboriginal and Torres Strait Islander peoples] have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. ...

It is...important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land.^[53]

The commitment to a land fund has been realised through the Indigenous Land Corporation (ILC), which operates to ‘acquire and manage land to achieve economic, environmental, social and cultural benefits’.^[54] However, as reported by Dr Calma in the Native Title Report 2008, the ILC ‘does not always provide an effective and accessible alternative form of land justice when native title is not available’.^[55]

The final component, a social justice package, has never been achieved. In 1995, Professor Dodson provided a report to Government that set out social justice measures that would support ‘recognition, rights and reform’ for Aboriginal and Torres Strait Islander peoples. The key themes of this report were:

• the rights of Aboriginal and Torres Strait Islander peoples as citizens
• recognition of their special status and rights as Indigenous Australians and the achievement of greater self-determination for Aboriginal and Torres Strait Islander peoples
• ensuring that Indigenous Australians are able to exercise their rights and share equitably in the provision of Government programs and services
• the protection of the cultural integrity and heritage of Indigenous Australians
• measures to increase Aboriginal and Torres Strait Islander participation in Australia’s economic life.^[56]

Explaining the impact of never implementing a social justice package, Dr Calma commented in the Native Title Report 2008 that ‘this abyss is one of the underlying reasons why the native title system is under the strain it is under today.’^[57]

2.3 Conclusion

Twenty years after the Mabo decision and the Native Title Act, I am extremely concerned that the opportunities and promise of the early 1990s have not been realised. We need to view and understand native title in a holistic way that recognises native title is intrinsically linked to social justice and the enjoyment and exercise of our human rights as Aboriginal and Torres Strait Islander peoples.

Looking back on 20 years of native title and the Social Justice Commissioner role, there are still many outstanding recommendations for reform – I urge Government not to delay native title reforms and to act on the recommendations of Social Justice Commissioners. I talk about the way forward for native title in chapter 3.

 

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^[1] A report on the key developments in native title for the period 1 July 2012 to 30 June 2013 is set out in Appendix 3.
^[2] Available at http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[3] Native Title Act 1993 (Cth), s 209(1).
^[4] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 2. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[5] Mabo v Queensland [No 2] (1992) 175 CLR 1.
^[6] M Dodson, ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.htm (viewed 20 September 2013).
^[7] P Keating, ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.htm (viewed 20 September 2013).
^[8] See ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.htm (viewed 20 September 2013).
^[9] M Dodson, ‘Judgement Day’, ABC Four Corners (7 May 2012). At http://www.abc.net.au/4corners/stories/2012/05/03/3494661.htm (viewed 20 September 2013).
^[10] Z Antonios, Native Title Report 1998, Human Rights and Equal Opportunity Commission (1999), p 11. At http://www.humanrights.gov.au/publications/native-title-reports#1998 (viewed 14 October 2013).
^[11] Native Title Act 1993 (Cth), preamble.
^[12] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 11. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[13] Native Title Act 1993 (Cth), preamble.
^[14] Also see M Dodson, Native Title Report 1995, Human Rights and Equal Opportunity Commission (1995), chs 3 and 4; M Dodson, Native Title Report 1996, Human Rights and Equal Opportunity Commission (1996), chs 2 and 5; W Jonas, Native Title Report 2000, Human Rights and Equal Opportunity Commission (2000), ch 4; W Jonas, Native Title Report 2001, Human Rights and Equal Opportunity Commission (2001), ch 1. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[15] A Prescribed Body Corporate may also be referred to as a Registered Native Title Body Corporate: Native Title Act 1993 (Cth), s 253.
^[16] For example, see W Jonas, Native Title Report 2001, Human Rights and Equal Opportunity Commission (2001), ch 2; T Calma, Native Title Report 2007, Human Rights and Equal Opportunity Commission (2007), chs 3 and 5. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[17] For example, see T Calma, Native Title Report 2008, Human Rights and Equal Opportunity Commission (2009), chs 4 and 5. At http://www.humanrights.gov.au/publications/native-title-report-2008 (viewed 13 September 2013).
^[18] For example, see W Jonas, Native Title Report 2000, Human Rights and Equal Opportunity Commission (2000), ch 3; T Calma, Native Title Report 2008, Human Rights and Equal Opportunity Commission (2009), ch 6. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[19] For example, see M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1995), ch 5; T Calma, Native Title Report 2005, Human Rights and Equal Opportunity Commission (2005), chs 1 and 3; T Calma, Native Title Report 2006, Human Rights and Equal Opportunity Commission (2007), chs 2, 3, 5 and 6. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[20] For example, see T Calma, Native Title Report 2008, Human Rights and Equal Opportunity Commission (2009), ch 7. At http://www.humanrights.gov.au/publications/native-title-report-2008 (viewed 13 September 2013).
^[21] Mabo v Queensland [No 2] (1992) 175 CLR 1, 42.
^[22] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 12. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[23] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 12. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[24] M Gooda, Native Title Report 2010, Australian Human Rights Commission (2011), pp 57–102. At http://www.humanrights.gov.au/publications/native-title-report-2010 (viewed 13 September 2013).
^[25] M Gooda, Native Title Report 2012, Australian Human Rights Commission (2012), pp 101–126. At http://www.humanrights.gov.au/publications/native-title-report-2012 (viewed 13 September 2013).
^[26] Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by states parties under article 9 of the convention, seventy seventh session UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At http://www2.ohchr.org/english/bodies/cerd/ (viewed 14 October 2013).
^[27] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 7. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[28] Wik Peoples v Queensland (1996) 187 CLR 1.
^[29] M Dodson, Native Title Report 1997, Human Rights and Equal Opportunity Commission (1997), pp 59–60. At http://www.humanrights.gov.au/publications/native-title-reports#1997 (viewed 14 October 2013).
^[30] Z Antonios, Native Title Report 1998, Human Rights and Equal Opportunity Commission (1999), p 19. At http://www.humanrights.gov.au/publications/native-title-reports#1998 (viewed 14 October 2013).
^[31] T Calma, Native Title Report 2009, Australian Human Rights Commission (2009), p 6. At http://www.humanrights.gov.au/publications/native-title-report-2009-0 (viewed 12 September 2013).
^[32] See, for example, Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by states parties under article 9 of the convention, seventy seventh session UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At http://www2.ohchr.org/english/bodies/cerd/ (viewed 14 October 2013). Also see Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR/C/AUS/CO/5 (2009), para 16. At http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx (viewed 14 October 2013).
^[33] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
^[34] Western Australia v Ward (2002) 213 CLR 1.
^[35] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 444–447, 456–457.
^[36] Western Australia v Ward (2002) 213 CLR 1.
^[37] W Jonas, Native Title Report 2002, Human Rights and Equal Opportunity Commission (2003), p 11. At http://www.humanrights.gov.au/publications/native-title-report-2002 (viewed 12 September 2013).
^[38] This text box is intended to provide a snapshot of amendments to the Native Title Act. I note that there have been a number of minor administrative amendments to the Native Title Act. For example, the Native Title Act was amended in 2013 to implement institutional reforms between the National Native Title Tribunal and the Federal Court of Australia – see Appendix 3.
^[39] Native Title Amendment Act 1998 (Cth). Also see Z Antonios, Native Title Report 1998, Human Rights and Equal Opportunity Commission (1999), pp 73–116; T Calma, Native Title Report 2009, Australian Human Rights Commission (2009), pp 4–7. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[40] Native Title Amendment Act 2007 (Cth). Also see T Calma, Native Title Report 2007, Australian Human Rights Commission (2008), pp 24–25; T Calma, Native Title Report 2008, Australian Human Rights Commission (2009), pp 24–39. At http://www.humanrights.gov.au/publications/native-title-reports (viewed 14 October 2013).
^[41] Native Title Amendment (Technical Amendments) Act 2007 (Cth).
^[42] Native Title Amendment Act 2009 (Cth). See T Calma, Native Title Report 2009, Australian Human Rights Commission (2009), pp 17–18. At http://www.humanrights.gov.au/publications/native-title-report-2009-0 (viewed 12 September 2013).
^[43] Native Title Amendment Act (No 1) 2010 (Cth). Also see M Gooda, Native Title Report 2010, Australian Human Rights Commission (2011), pp 36–37. At http://www.humanrights.gov.au/publications/native-title-report-2010 (viewed 12 September 2013).
^[44] Diagram provided by the National Native Title Tribunal.
^[45] Diagram provided by the National Native Title Tribunal.
^[46] I discuss recent trends in native title determinations, ILUAs and future acts in Appendix 3.
^[47] For example, see Agreements, Treaties and Negotiated Settlements Project. At http://www.atns.net.au/ (viewed 26 July 2013).
^[48] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 4. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[49] M Dodson, Native Title Report January–June 1994, Human Rights and Equal Opportunity Commission (1994), p 5. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 14 October 2013).
^[50] M Gooda, Native Title Report 2011, Australian Human Rights Commission (2011), p 77. At http://www.humanrights.gov.au/publications/native-title-report-2011 (viewed 13 September 2013).
^[51] T Calma, Native Title Report 2009, Australian Human Rights Commission (2010), ch 3. At http://www.humanrights.gov.au/publications/native-title-report-2009-0 (viewed 13 September 2013).
^[52] T Calma, Native Title Report 2009, Australian Human Rights Commission (2010), p 77. At http://www.humanrights.gov.au/publications/native-title-report-2009-0 (viewed 13 September 2013).
^[53] Native Title Act 1993 (Cth), preamble.
^[54] Indigenous Land Corporation, About Us (2013). At http://www.ilc.gov.au/About-Us (viewed 24 September 2013).
^[55] T Calma, Native Title Report 2008, Australian Human Rights Commission (2009), p 46. At http://www.humanrights.gov.au/publications/native-title-report-2008 (viewed 13 September 2013).
^[56] Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and Reform: A report to government on native title social justice measures’ (1995). Reproduced in [1996] Australian Indigenous Law Reporter 27. At http://www.austlii.edu.au/au/journals/AILR/1996/27.html (viewed 24 September 2013).
^[57] T Calma, Native Title Report 2008, Australian Human Rights Commission (2009), p 46. At http://www.humanrights.gov.au/publications/native-title-report-2008 (viewed 13 September 2013).