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Native Title Report 2011: Appendix 2

Native Title Report 2011

Appendix 2: Australian Human Rights Commission submission to the Senate Legal and Constitutional Affairs Committee’s Inquiry into the Native Title Amendment (Reform) Bill 2011

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1 Introduction

  1. The Australian Human Rights Commission welcomes the opportunity to comment
    on the proposed changes to the Native Title Act 1993 (Cth) in the Native
    Title Amendment (Reform) Bill 2011.

  2. The Commission is Australia’s national human rights institution and is
    established by the Australian Human Rights Commission Act 1986 (Cth)
    (AHRC Act).

  3. The Commission has responsibilities under the AHRC Act to examine the
    enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander
    peoples. The Commission also has responsibilities to report annually on the
    effect of the Native Title Act on the exercise and enjoyment of human rights of
    Aboriginal people and Torres Strait
    Islanders.[2]

  4. The Commission congratulates Senator Siewert for moving the Reform Bill;
    particularly to the extent the proposed amendments implement the Aboriginal and
    Torres Strait Islander Social Justice Commissioner’s Native Title
    Report 2009    .

  5. This submission outlines the Commission’s support for the stated
    intention of the Reform Bill. As the Commission has consistently urged, native
    title reform is required to address current inequalities in the law. However,
    the Commission cautions against making amendments to the Native Title Act
    without comprehensive consultation with Aboriginal and Torres Strait Islander
    peoples.

2 Summary

  1. The Native Title Act does not create a fair process for recognising and
    adjudicating the rights of Aboriginal and Torres Strait Islander
    peoples.[3]

  2. Within the native title system there are significant obstacles to the full
    realisation of Aboriginal and Torres Strait Islander rights, including, for
    example, the onerous burden of proof, the injustices of extinguishment, and the
    weakness of the good faith
    requirements.[4]

  3. The Commission welcomes reforms which aim to address the barriers to
    creating a just and fair native title system and broadly supports the intent of
    the following reforms:

    • inserting additional objects into the objects clause (item 1)

    • reverting to the original wording of s 24MD(2)(c) (item 3)

    • enabling prior extinguishment of native title rights and interests to be
      disregarded (item 11)

    • repealing s 26(3) of the Native Title Act to recognise procedural rights
      over offshore areas (item 4)

    • strengthening the good faith requirements under the right to negotiate
      provisions (items 5-9)

    • shifting the onus of proof to the respondent to rebut presumptions that
      support native title interests (item 12)

    • amending the definitions of ‘traditional laws acknowledged’,
      ‘traditional customs observed’ and ‘connection with the land
      or waters’ in s 223(1) of the Native Title Act (item 13)

    • amending s 223(2) of the Native Title Act to clarify that native title
      rights and interests can include commercial rights and interests (item 14)

  4. However, the Commission believes that these reforms should be addressed
    through an independent inquiry on possible law reform options.

3 Recommendations

  1. The Australian Human Rights Commission recommends
    that:

Recommendation 1: The Committee endorse the stated
intention of the Reform Bill.

Recommendation 2: The Committee recommend the Australian Government
commission an independent inquiry to review the operation of the native title
system and explore options for native title law reform, with a view to aligning
the system with international human rights standards, including the United
Nations Declaration on the Rights of Indigenous Peoples.

Recommendation 3: A working group which includes members from
Native Title Representative Bodies and Native Title Service Providers be tasked
with developing proposals to enable prior extinguishment to be disregarded in a
broad range of circumstances.

Recommendation 4: The Committee recommend the Australian Government
give full consideration to items 5-9 of the Reform Bill as part of its current
review of good faith requirements. The Government should also consider
developing a code or framework to guide the parties as to their duty to
negotiate in good faith.

4 Creating a just and
fair native title system

  1. The United Nations Declaration on the Rights of Indigenous Peoples (Declaration) provides that States are to establish and implement ‘a
    fair, independent, impartial, open and transparent process ... to recognize and
    adjudicate the rights of indigenous peoples pertaining to their lands,
    territories and resources’.[5] The Australian Government has formally supported the Declaration.

  2. However, international human rights mechanisms have noted with concern the
    inability of Aboriginal and Torres Strait Islander peoples to fully exercise and
    enjoy their rights to their lands, territories and
    resources.[6] For example, the
    Committee on the Elimination of Racial Discrimination expressed regret that as a
    result of ‘the persisting high standards of proof required for recognition
    of the relationship between indigenous peoples and their traditional lands,
    ...many are unable to obtain recognition of their relationship to land (art.
    5)’.[7]

  3. While the Australian Government has introduced some reforms to the native
    title system in recent years, they have been minor and have failed to address
    the most significant obstacles within the native title system to the full
    realisation of Aboriginal and Torres Strait Islander peoples’ land rights.
    These obstacles include the onerous burden of proving native title, and the
    injustices of extinguishment.[8]

  4. Accordingly, it is the Commission’s view that the Native Title Act
    does not currently create a fair process for recognising and adjudicating the
    rights of Aboriginal and Torres Strait Islander peoples.

  5. The Commission notes that the objects of the Reform Bill are
    to:

    1. Refer to the United Nations Declaration on the Rights of Indigenous Peoples
      and provide for principles of the Declaration to be applied in decision-making
      under the Native Title Act 1993; and

    2. Implement reforms to the Native Title Act 1993 to improve the
      effectiveness of the native title system for Aboriginal peoples and Torres
      Strait Islanders.

  6. The Commission strongly supports the stated objects of the Reform Bill. The
    Commission further recommends an independent inquiry to review the operation of
    the native title system to explore options for native title reform.


  7. The terms of reference for this review should be developed in full
    consultation with all relevant stakeholders, particularly Aboriginal and Torres
    Strait Islander peoples.

Recommendation 1: That the
Committee endorse the stated intention of the Reform Bill.

Recommendation 2: That the Committee recommend that the Australian
Government commission an independent inquiry to review the operation of the
native title system and explore options for native title law reform, with a view
to aligning the system with international human rights standards, including the
Declaration.

5 The Native Title
Amendment (Reform) Bill 2011

  1. The Reform Bill proposes a number of amendments to the Native Title Act
    which the Social Justice Commissioner and the Commission have been recommending
    for a number of years.[9]

  2. The Reform Bill aims to ‘enhance the effectiveness of the native title
    system for Aboriginal and Torres Strait Islander
    peoples’[10] by
    addressing:

    1. the barriers claimants face in making the case for a determination of native
      title rights and interests and

    2. procedural issues relating to the future act
      regime.[11]

5.1 Consistency with
the Declaration

  1. Proposed s 3A of the Reform Bill, if passed, will insert three
    additional objects into the objects clause of the Native Title Act:

    1. that governments in Australia take all necessary steps to implement specific
      principles set out in the
      Declaration[12]

    2. that the provisions of the Native Title Act are to be interpreted and
      applied consistently with the
      Declaration[13]

    1. that the specific principles set out in the Declaration are applied by each
      person exercising a power or performing a function under the Native Title
      Act.[14]

  2. Explicit support for some of the principles of the Declaration in the Native
    Title Act is a positive step towards the implementation of the Declaration into
    all Australian laws and policies that affect the rights of Aboriginal and Torres
    Strait Islander peoples.


  3. To the extent that an objects clause can provide interpretative guidance to
    courts applying the Native Title
    Act,[15] the Commission broadly
    supports the intention of this proposed amendment.


  4. However, courts will ascertain the intention of the Native Title Act with
    reference to all of its provisions. Therefore, the Commission notes that this
    step alone will not substitute for amending the Native Title Act to ensure the
    substance of its provisions are consistent with the Declaration.


  5. In the Commission’s view, all laws and policies, especially the Native
    Title Act, should be aligned with the Declaration. [16]

5.2 Extinguishment

(a) Compulsory
acquisition and extinguishment

  1. Section 24MD(2)(c) of the Native Title Act currently states that
    ‘compulsory acquisition extinguishes the whole or the part of the native
    title rights and interests’.

  2. Item 3 of the Reform Bill proposes to revert s 24MD(2)(c) of the Native
    Title Act to its original
    wording.[17] As originally enacted,
    this section stated that ‘acquisition itself does not extinguish native
    title, only the act done in giving effect to the purpose of the acquisition that
    led to extinguishment’.[18]

  3. There appears to be no policy justification for the current position. The
    Commission therefore welcomes item 3 of the Reform Bill.
(b) Agreements to
disregard prior extinguishment

  1. Item 11 of the Reform Bill proposes to insert a new s 47C. The new s
    47C is intended to enable an applicant and a government party to make an
    agreement, at any time prior to a determination, that the extinguishment of
    native title rights and interests is to be
    disregarded.[19]

  2. Following his visit to Australia in August 2009, the Special Rapporteur
    observed that the extinguishment of Indigenous rights in land by unilateral
    uncompensated acts is incompatible with the Declaration and other international
    instruments.[20]

  3. The Commission therefore supports expanding the range of circumstances in
    which extinguishment can be
    disregarded.[21]

  4. The Commission notes that proposed s 47C(1)(b) of the Reform Bill
    requires the agreement of the parties to disregard the extinguishment of native
    title rights. Accordingly, if passed, the impact of the proposed amendment will
    be limited to situations where government parties are prepared to be flexible
    and approach agreement-making processes in good faith.

  5. The Commission therefore recommends that the Government work with Native
    Title Representative Bodies and Native Title Service Providers to develop
    proposals to enable prior extinguishment to be disregarded in a broad range of
    circumstances.[22]

Recommendation
3: A working group which includes members from Native Title
Representative Bodies and Native Title Service Providers be tasked with
developing proposals to enable prior extinguishment to be disregarded in a broad
range of circumstances.

5.3 Procedural rights
over offshore areas

  1. Item 4 of the Reform Bill proposes to repeal s 26(3) of the Native Title
    Act. Section 26(3) of the Native Title Act limits the right to negotiate to acts
    that relate ‘to a place that is on the landward side of the mean
    high-water mark of the sea’.

  2. The Commission supports the repeal of s 26(3) of the Native Title Act.
    The Australian Government has recognised that native title can exist up to 12
    nautical miles out to sea.[23]

  3. The lack of procedural rights in relation to offshore areas in the Native
    Title Act is therefore inconsistent with the Government’s recognition that
    native title can exist in offshore areas. The Commission therefore supports
    repealing s 26(3) of the Native Title Act which should improve this
    situation.

5.4 Negotiating in
good faith

  1. Items 5 to 9 of the Reform Bill propose amendments to strengthen the
    requirements to negotiate in good faith. These amendments include:

    • requiring parties to negotiate ‘for a period of at least 6
      months’[24]

    • requiring parties to negotiate in good faith ‘using all reasonable
      efforts’[25]

    • outlining explicit criteria to guide what constitutes negotiating ‘in
      good faith using all reasonable
      efforts’[26]

    • providing that the onus of proving negotiation has been in good faith is on
      the party asserting good
      faith[27]

    • requiring a party to negotiate in good faith using all reasonable efforts
      before applying to the arbitral
      body.[28]

  2. The good faith negotiation requirement is one of the few legal safeguards
    that native title parties have under the future act
    regime.[29] In FMG Pilbara Pty
    Ltd v Cox     (FMG)[30], the
    Federal Court considered the obligation to negotiate in good faith. It found
    that

    there could only be a conclusion of lack of good faith within
    the meaning of [s 31]...where the fact that the negotiations had not passed
    an ‘embryonic’ stage was, in turn, caused by some breach of or
    absence of good faith such as deliberate delay, sharp practice, misleading
    negotiating or other unsatisfactory or unconscionable
    conduct.[31]

  3. The Social Justice Commissioner considers that the Federal Court decision in FMG v Pilbara has diluted the content of this important procedural right
    for native title parties.[32] Accordingly, the Commission welcomes reforming the good faith negotiation
    requirements.

  4. The Commission supports the inclusion of explicit criteria as to what
    constitutes ‘good faith’ in the Native Title Act. Previously the
    Commission has submitted that s 228 of the Fair Work Act 2009 (Cth) (the
    Fair Work Act) could provide a model for developing such ‘good
    faith’ criteria within the native title
    system.[33]Proposed s 31(1A)
    includes many of these criteria.

  5. The Commission therefore broadly supports the intent of items 5-9 of the
    Reform Bill. However, the Commission considers that a statutory requirement to
    negotiate for a period of at least 6 months should also allow parties to
    negotiate in good faith for a period of less than 6 months where circumstances
    support a shorter negotiation period.

  6. Further consideration should also be given to:

    • including a statement that it is not necessary that a party engage in
      misleading, deceptive or unsatisfactory conduct in order to be found to have
      failed to negotiate in good faith

    • inserting a ‘reasonable person’ test which may be used in
      assessing the actions of a proponent seeking a determination when negotiations
      are at a very early stage.[34]

  7. The Commission further submits that the legislative provisions outlining the
    elements of good faith could be supplemented by a code or framework to guide the
    parties as to their duty to act in good
    faith.[35]


  8. The Commission understands that the Government is currently reviewing the
    good faith requirements and encourages the Government to consider items 5-9 of
    the Reform Bill as part of this
    review.[36]

Recommendation
4: The Committee recommend that the Australian Government give full
consideration to items 5-9 of the Reform Bill as part of its current review of
good faith requirements. The Government should also consider developing a code
or framework to guide the parties as to their duty to negotiate in good
faith.

5.5 Shifting the
burden of proof

  1. Chief Justice French AC of the High Court of Australia has suggested that
    the Native Title Act could be amended to provide for a presumption in favour of
    native title applicants, which ‘could be applied to presume continuity of
    the relevant society and the acknowledgement of its traditional laws and
    observance of its customs from sovereignty to the present
    time’.[37]

  2. Proposed s 61AA establishes a presumption of continuous connection in
    relation to a native title claim provided that certain circumstances are
    met.[38] Under proposed s 61AB,
    the onus shifts onto the respondent, usually the State, to demonstrate that
    there is evidence of ‘substantial interruption’ in the
    acknowledgment of traditional laws or the observation of traditional customs
    that sets aside the presumption.

  3. If passed, proposed s 61AA and s 61AB will clarify that the onus
    rests upon the respondent to prove a substantial interruption rather than upon
    the claimants to prove continuity.

  4. This is an important proposal given that the United Nations Committee on the
    Elimination of Racial Discrimination has expressed concern about the onerous
    evidential burden on claimants proving native
    title.[39]

  5. The application of the tests for continuity, derived from Yorta Yorta v
    Victoria     (Yorta
    Yorta    )[40] has had a detrimental
    effect on native title claims.[41] For example, the Larrakia people were unable to prove their native title claim
    over Darwin because the Federal Court found their connection to their land and
    their acknowledgement and observance of their traditional laws and customs had
    been interrupted – even though they were, at the time of the claim, a
    ‘strong, vibrant and dynamic
    society’.[42]

  6. The Commission therefore supports the intent of proposed s 61AA and
    s 61AB. However, the Commission prefers the model recommended by the Social
    Justice Commissioner in the Native Title Report 2009 whereby the burden
    of proof shifts to the respondent once native title claimants have met the
    registration test.[43]

  7. Proposed s 61AB(2) provides that, in considering the primary reason for
    the interruption, the Court must treat as relevant whether the primary reason
    for the interruption is the action of ‘a State or a Territory or a person
    who is not an Aboriginal person or a Torres Strait
    Islander’.[44] This proposal
    is broadly consistent with the recommendations of the Social Justice
    Commissioner in the Native Title Report
    2009[45] and the Commission therefore supports the intent of proposed s 61AB(2).
(a) Clarifying the definitions of
‘traditional’ and ‘connection’
(i) Clarify
the definition of ‘traditional’

  1. Proposed s 223(1A) and s 223(1B), if passed, will define
    ‘traditional laws acknowledged’ and ‘traditional customs
    observed’ to encompass laws and customs that ‘remain identifiable
    through time’.

  2. The interpretation of ‘traditional’ under the Native Title Act
    sets too high a test and may not allow for traditional laws and customs to
    develop and progress over time in the way that all cultures adapt and change
    over time. Further, the proposed presumption of continuity would be undermined
    if respondents could rebut the presumption simply by establishing that a law or
    custom is not practised as it was at the date of
    sovereignty.[46]

  3. The Commission submits that an approach that allows for
    ‘traditional’ laws and customs to change over time provided they
    remain ‘identifiable’ is consistent with the recognition of
    Aboriginal and Torres Strait Islander peoples’ rights to culture and would
    clarify the level of adaptation allowable under the
    law.[47]
(ii) Clarify the
definition of ‘connection’

  1. If passed, proposed s 223(1C) will clarify that claimants are not
    required to have a physical connection with the land or
    waters.[48] Section 223 of the
    Native Title Act currently requires that claimants ‘have a connection with
    the land or waters’ that is the subject of the claim, and have such a
    connection by virtue of their traditional law and customs.

  2. Requiring evidence of a physical connection sets a standard that may prevent
    claimants who can demonstrate a continuing spiritual connection to the land from
    having their native title rights protected and
    recognised.[49]

  3. Since the Full Federal Court decision in De
    Rose    ,[50] the courts have
    rejected the need for the claimants to demonstrate an ongoing physical
    connection with the land.[51] If
    passed, proposed s 223 will clarify that the required connection may be
    spiritual.

5.6 Commercial rights
and interests

  1. If passed, item 14 will amend section 223(2) of the Native Title Act to
    specify that native title rights and interests include ‘the right to trade
    and other rights and interests of a commercial nature’. Currently, the
    Native Title Act does not clearly specify that native title rights and interests
    can be of a commercial nature.

  2. The Declaration affirms the right of Aboriginal and Torres Strait Islander
    peoples to self-determination. By virtue of that right, Aboriginal and Torres
    Strait Islander peoples ‘freely determine their political status and
    freely pursue their economic, social and cultural
    development’.[52]

  3. The Commission notes the recent Federal Court decision of Akiba on
    behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State
    of Queensland (No 2)    [53] in which Justice Finn found that in some cases native title rights may
    include the right to access, take and use resources for trading or commercial
    purposes.[54]

  4. The Commission welcomes this interpretation and submits that the Native
    Title Act should be amended to clarify that native title rights and interests
    can include commercial rights and interests.

  5. The Commission therefore supports item 14 of the Reform
    Bill.

[1] This submission is available
at: http://www.aph.gov.au/senate/committee/legcon_ctte/native_title_three/submissions.htm

[2] Native Title Act 1993 (Cth), s
209.

[3] See for example, M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2010, Australian Human Rights Commission (2011), pp 12-14. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011); T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2009, Australian Human Rights
Commission (2010), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 18 July 2011).

[4] See
further discussion in T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2009, Australian Human Rights
Commission (2010), ch 3. At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 18 July 2011).

[5] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 27. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 12 July 2011).

[6] See, for
example, Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination:
Australia, UN Doc CERD/C/AUS/CO/14 (2005), para 16. At http://www2.ohchr.org/english/bodies/cerd/cerds66.htm (viewed 18 July 2011); Human Rights Committee, Concluding observations of the
Human Rights Committee: Australia, UN Doc CCPR/C/AUS/CO/5 (2009), para 16.
At http://www2.ohchr.org/english/bodies/hrc/hrcs95.htm (viewed 18 July 2011).

[7] Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination:
Australia, UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 18 July 2011).

[8] Native
Title Report 2010, p 13.

[9] See, for example, Native Title Report 2009, ch
3.

[10] Explanatory Memorandum,
Native Title Amendment (Reform) Bill 2011 (Cth), p
2.

[11] Explanatory Memorandum, p
2.

[12] Native Title Amendment
(Reform) Bill 2011 (Cth), sch 1, item 1, proposed s
3A(1).

[13] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 1, proposed s
3A(2).

[14] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 1, proposed s
3A(3).

[15] Re Credit
Tribunal; Ex parte General Motors Acceptance Corp, Australia (1977) 14 ALR
257, 260.

[16] Native Title
Report 2010, rec 2.1.

[17] Formerly s 23(3) of the Native Title Act 1993
(Cth).

[18]See: Native Title
Report 2009, p 106.

[19] Explanatory Memorandum, note 7, p
6.

[20] J Anaya, Report of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya: Addendum: Situation of indigenous peoples in
Australia, Report to the Human Rights Council, 15th session, UN Doc
A/HRC/15/37/Add.4 (2010), para 29. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 18 July 2011).

[21] For
further discussion see Native Title Report 2010, pp 39 -
41.

[22] See Native Title
Report 2010, p 39.

[23] The
Australian Government has recognised that native title can exist up to 12
nautical miles out to sea: See, for example, R McClelland (Attorney-General), 3rd Negotiating Native Title Forum (Speech delivered at the Third
Negotiating Native Title Forum, Melbourne, 20 February 2009), para 30. At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_FirstQuarter_20February2009-3rdNegotiatingNativeTitleForum (viewed 18 July 2011).

[24] Native Title Amendment (Reform) Bill 2011 (Cth), sch 1, item 5, proposed s
31(1)(b).

[25] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 5, proposed s
31(1)(b).

[26] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 6, proposed s
31(1A).

[27] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 7, proposed s
31(2A).

[28] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 9, proposed s
35(1A).

[29] Native Title Report
2009, p34.

[30] (2009) 175 FCR
141. This decision was discussed in Native Title Report 2009, pp
31–35.

[31] FMG Pilbara
Pty Ltd v Cox [2009] FCAFC 49 [27].

[32] Native Title Report
2009, p 34.

[33] See
Australian Human Rights Commission, Submission to Attorney-General and the
Minister for Families, Housing, Community Services and Indigenous Affairs
Discussion paper: Leading practice agreements: maximising outcomes from native
title benefits (30 November 2010), paras 72 – 74. At: http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 18 July 2011).

[34] For
further information on these options, see Native Title Report 2009, pp
31–35, 104–107; S Burnside, ‘Negotiation in Good Faith under
the Native Title Act: A Critical Analysis’ (2009) 4(3) Land, Rights,
Laws: Issues of Native Title, p 15. At www.aiatsis.gov.au/ntru/docs/publications/issues/ip09v4n3.pdf (viewed 18 July 2011). See also: Australian Human Rights Commission, Submission to Attorney-General and the Minister for Families, Housing,
Community Services and Indigenous Affairs Discussion paper: Leading practice
agreements: maximising outcomes from native title benefits (30 November
2010), [76].

[35] This could
also guide the National Native Title Tribunal. For further discussion see:
Australian Human Rights Commission, Submission to Attorney-General and the
Minister for Families, Housing, Community Services and Indigenous Affairs
Discussion paper: Leading practice agreements: maximising outcomes from native
title benefits (30 November 2010), [75].

[36] In July 2010 the Government
released Leading practice agreements: maximising outcomes from native title
benefits which proposed a review of the good faith requirements: Department
of Families, Housing, Community Services and Indigenous Affairs, Leading
practice agreements: maximising outcomes from native title benefits, http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 18 July 2011).

[37] Justice R French, Lifting the burden of native title – some modest
proposals for improvement (Speech delivered to the Federal Court, Native
Title User Group, Adelaide, 9 July 2008), [29]. At http://www.fedCourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf (viewed 18 July 2011).

[38] Native Title Amendment (Reform) Bill 2011 (Cth), sch 1, item 12, proposed s
61AA.

[39] Committee on the
Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Australia, UN Doc
CERD/C/AUS/CO/15-17 (2010), [18].

[40] Yorta Yorta v
Victoria (2002) 214 CLR
422.

[41] Native Title Report
2009, p 84.

[42]Risk v
Northern Territory [2006] FCA 404, para 839. The decision was upheld on
appeal to the Full Federal Court: Risk v Northern Territory (2007) 240
ALR 75.

[43] Native Title
Report 2009, pp
82−83.

[44] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 12, proposed s
61AB(2).

[45] See Native Title
Report 2009, p 87.

[46] This
is discussed further in Native Title Report 2009, p
85.

[47] For a discussion of the
rights of Indigenous peoples to culture, including adaptation and revitalisation
of culture, see T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2008, Australian Human Rights
Commission (2009), pp 87−88. At http://www.humanrights.gov.au/social_Justice/nt_report/ntreport08/index.html (viewed 18 July 2011).

[48] Native Title Amendment (Reform) Bill 2011 (Cth), sch 1, item 13, proposed s
223(1C).

[49] See Native Title
Report 2009, p 86.

[50] De
Rose v South Australia No 2 (2005) 145 FCR 290,
319.

[51] Native Title Report
2009, p 86.

[52] United
Nations Declaration on the Rights of Indigenous Peoples, art 3. Indigenous
peoples also have the right to ‘determine and develop priorities and
strategies for exercising their right to development’: art
32.

[53] [2010] FCA 643 (2 July
2010).

[54] [2010] FCA 643,
752-757 (2 July 2010).