Native Title Report 2011: Chapter 1: Reviewing key developments in the Reporting Period
Native Title Report 2011
Chapter 1: Reviewing key developments in the Reporting Period
- 1.1 Introduction
- 1.2 Legislative changes
- 1.3 Australian Government discussion papers
- (a) Draft Indigenous Economic Development Strategy Discussion Paper
- (b) Leading practice agreements: maximising outcomes from native title benefits discussion paper
- (c) Native Title, Indigenous Economic Development and Tax Consultation Paper
- (d) Northern Territory Emergency Response and the Stronger Futures in the Northern Territory Discussion Paper
- 1.4 Marking progress in the native title system
- 1.5 International mechanisms addressing Indigenous human rights
- 1.6 Reviewing the recommendations from the Native Title Report 2010
- 1.7 Assessing the Reporting Period
- 1.8 Recommendations
1.1 Introduction
In this Chapter I review key developments within the native title system that
occurred throughout the Reporting Period (1 July 2010 to 30 June 2011) and
consider the impact of these events on the exercise and enjoyment of Aboriginal
and Torres Strait Islander peoples’ human rights.
In the Native Title Report 2010 I discussed how the United Nations
Declaration on the Rights of Indigenous Peoples (the
Declaration)[1] will be the
overarching framework to inform my work relating to our rights to our lands,
territories and resources.[2] In
particular, I committed to be guided by the Declaration in fulfilling my
responsibility to report annually on the operation of the Native Title Act
1993 (Cth) (Native Title Act) and the effect that it has on the exercise and
enjoyment of human rights by Aboriginal and Torres Strait Islander
peoples.[3]
Guided by the Declaration I review a number of legislative changes,
consultation papers, and some significant moments which mark the ongoing
operation of the Native Title Act. I also consider developments at the
international level which impact on our rights to our lands, territories and
resources.
In the following pages I highlight many, but not all, developments in the
native title sphere during the Reporting Period. I have drawn attention to those
which I believe have a significant impact, or the potential to have a
significant impact, on the human rights of Aboriginal and Torres Strait Islander
peoples, particularly those with national effect.
Finally, in what will be the first in a series of annual ‘Report
Cards’, I provide an assessment of the Australian Government’s
performance across a range of issues, including its progress towards
implementing my recommendations from the Native Title Report 2010, and
draw some concluding observations about progress made during the Reporting
Period.
1.2 Legislative changes
At the national level the Reporting Period was quiet in terms of legislative
amendment to the Native Title Act. However there were a number of proposals
which, if enacted, could prove to have a substantial effect on the native title
system.
Senator Siewert of the Australian Greens introduced a private Senators Bill
which, if passed, would significantly reform the Native Title
Act.[4] In addition, the Australian
Government introduced a bill to give legislative effect to its Carbon Farming
Initiative,[5] however it did not
pass during the Reporting Period.
In the previous reporting period two other pieces of native title reform
legislation were introduced but not enough time had passed for me to effectively
report on their operation in last year’s Report. [6] Now that sufficient time has passed we
are able to have a better understanding of their effect during the Reporting
Period.
At the State level, the State of Victoria passed the Traditional Owner
Settlement Act 2010 (Vic) which sets the benchmark for other states to meet
when resolving native title claims.
In this subsection I consider these developments:
-
Native Title Amendment (Reform) Bill 2011
-
Carbon Credits (Carbon Farming Initiative) Act 2011
-
Native Title Amendment Act 2009 (Cth)
-
Native Title Amendment Act (No 1) 2010 (Cth)
- Traditional Owner Settlement Act 2010 (Vic).
(a) Creating a just and fair native title
system
In the Native Title Report 2010 I outlined four broad themes in native
title and land rights that I will focus on during my term. One of these themes
is ‘creating a just and fair native title system through law and policy
reform’.[7]
I adopted this theme because the Native Title Act does not create a fair
process for recognising and adjudicating the rights of Aboriginal and Torres
Strait Islander peoples[8] and does
not deliver on the promise of the preamble to ‘rectify the consequences of
past injustices’.
International human rights mechanisms have noted with concern our inability
to fully exercise and enjoy our rights to our lands, territories and
resources.[9] Within the native title
system there are significant obstacles to the full realisation of our rights,
including, for example, the onerous burden of proof, the injustices of
extinguishment, the weakness of the good faith requirements, and limitations on
our ability to use our lands, territories and resources to develop and determine
priorities for our own
development.[10]
Article 27 of the Declaration states:
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.[11]
The Australian Government has formally supported the Declaration. It now
needs to ensure these articles are given their full effect in Australia. While
the 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 our land
rights.
I now consider some legislative amendments and proposals from the Reporting
Period in light of whether they contribute to the creation of a fair and
equitable system to recognise and adjudicate our rights to our lands,
territories and resources.
(b) Native Title Amendment (Reform) Bill
2011
On 21 March 2011 Senator Siewert from the Australian Greens introduced a
private Senators Bill, the Native Title Amendment (Reform) Bill 2011 (Reform
Bill). On 12 May 2011 the Reform Bill was referred to the Senate Legal and
Constitutional Affairs Committee (Senate Committee) for inquiry and report.
The aim of the Reform Bill is to ‘enhance the effectiveness of the
native title system for Aboriginal and Torres Strait Islander peoples’ by
addressing two key areas:
-
the barriers claimants face in making the case for a determination of native
title rights and interests -
procedural issues relating to the future act
regime.[12]
I strongly
support the aim of the Reform Bill. The proposed amendments are primarily drawn
from the Native Title Report
2009[13], however these are
reforms that many have advocated for years, and it is as a result of these
combined voices that the Reform Bill is now before the Senate.
I congratulate Senator Siewert for introducing the Reform Bill and commend
those who have campaigned for these proposals. While at the time of writing,
these reforms were yet to be considered by the Senate or House of
Representatives, the Reform Bill has encouraged debate on native title reform
and put pressure on the Australian Government to consider more robust changes
than it may ordinarily have pursued.
The Australian Human Rights Commission prepared a submission in response to
the Senate Committee’s Inquiry into the Reform Bill. This submission
considered a number of substantial reforms proposed by the Reform Bill which aim
to address the inequities in the Native Title Act. The submission broadly
supported the intent of the following reforms:
-
inserting additional objects into the objects clause, including for
Australia to take all necessary steps to implement principles of the
Declaration[14] -
reverting to the original wording of s 24MD(2)(c) of the Native Title Act
which states that compulsory acquisition itself does not extinguish native
title[15] -
enabling prior extinguishment of native title rights and interests to be
disregarded[16] -
repealing s 26(3) of the Native Title Act to recognise procedural rights
over offshore areas[17] -
strengthening the good faith requirements under the right to negotiate
provisions[18] -
shifting the onus of proof to the respondent to rebut presumptions that
support native title
interests[19] -
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[20] -
amending s 223(2) of the Native Title Act to clarify that native title
rights and interests can include commercial rights and
interests.[21] I discuss this point
further in Text Box 1.1.
I attach the Commission’s submission
at Appendix 2 which outlines the reasons for the Commission’s
position.
In line with the Commission’s view I support the stated intention of
the Reform Bill. Further I reiterate my recommendation from last year’s
Native Title Report – that the Australian Government should 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 the Declaration. The terms of reference for this review should be developed
in full consultation with all relevant stakeholders, particularly Aboriginal and
Torres Strait Islander peoples.
| Text Box 1.1: Torres Strait Regional Seas Claim – commercial rights and interests |
|
One of the proposals in the Reform Bill is an amendment to the Native Title This reform is worthy of highlighting because during the Reporting Period, This is important given the Declaration affirms our right to |
At the time of writing the Senate Committee was still considering submissions
to its Inquiry. I will monitor the outcome of the Senate Committee’s
Inquiry and continue to advocate for native title reform that strengthens the
native title system.[26]
(c) Carbon Credits (Carbon Farming
Initiative) Act 2011
During the Reporting Period the Australian Government initiated consultations
on draft legislation to give effect to its Carbon Farming Initiative (CFI). The
CFI is:
a carbon offsets scheme being established by the Australian Government to
provide new economic opportunities for farmers, forest growers and Indigenous
landholders while also helping the environment by reducing carbon
pollution. [27]
The Government introduced the Carbon Credits (Carbon Farming Initiative) Bill
2011 (CFI Bill) on 24 March 2011 in order to provide a legislative framework for
the CFI.[28] The CFI Bill received
assent on 15 September 2011 and is now the Carbon Credits (Carbon Farming
Initiative) Act 2011 (Cth) (CFI
Act).[29]
In this section I outline the key dates for the development of the CFI Act
(Table 1.1), the purpose of the Act, stakeholder concerns regarding the
Act’s treatment of Aboriginal and Torres Strait Islander land, and finally
I give some consideration to the next steps that should be taken.
| Table 1.1: Key dates — Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) |
|
|
Date |
Event |
|
October 2010 – February 2011 |
The Government consulted on the CFI |
|
22 November 2010 |
The Australian Government released the Design of the Carbon Farming |
|
24 March 2011 |
The CFI Bill was introduced into the House of Representatives. |
|
24 March 2011 |
The CFI Bill was referred to the House Standing Committee on Climate |
|
25 March 2011 |
The CFI Bill was referred to the Senate Standing Committees on Environment |
|
23 May 2011 |
The House Standing Committee tabled its final report. |
|
27 May 2011 |
The Senate Standing Committee tabled its final report. |
|
15 July 2011 |
The Australian Government released Carbon Farming Initiative |
|
22 August 2011 |
The CFI Bill passed the |
|
23 August 2011 |
The CFI Bill passed the House of |
|
15 September 2011 |
The CFI Bill received assent. |
(i) What is the CFI Act?
Objectives of the CFI Act
Broadly, the objectives of the CFI Act are to:
- help Australia ‘meet its international obligations under the United
Nations Convention on Climate Change and the Kyoto Protocol, to reduce its
emissions of greenhouse gases’ - create incentives for landholders to undertake ‘land sector abatement
projects’ - achieve carbon abatement or reduction ‘in a manner that is consistent
with the protection of Australia’s natural environment and improves
resilience to the impacts of climate
change’.[36]
What
does the CFI Act do?
The CFI is intended to create financial incentives for reducing emissions or
storing carbon.[37] The CFI Act
establishes a legislative framework for the CFI.
Under the CFI Act, individuals or companies are able to cancel out
‘their greenhouse gas emissions by purchasing carbon credits from
others’. This is called a ‘carbon offset scheme’. [38]
Carbon credits represent a reduction (abatement) in greenhouse gas emissions.
Abatements can be achieved by:
- reducing or avoiding emissions or
- removing carbon from the atmosphere and storing it in soil or
trees.[39]
Emissions
which may be offset include those generated during normal daily activities, for
example, by consuming
electricity.[40] Emissions can be
offset voluntarily or to meet regulatory
requirements.[41]
The CFI Act
establishes certain criteria projects must meet before they can be declared an
‘eligible offsets project’ and be issued Australian Carbon Credit
Units (ACCU).[42] I discuss the
eligibility of these projects in greater detail below.
The impact of the CFI Act on Aboriginal and Torres Strait Islander
peoples
The Government has stated that it is committed to facilitating Aboriginal and
Torres Strait Islander participation in carbon
markets.[43] Aboriginal and Torres
Strait Islander peoples will be able to conduct carbon abatement projects on
land rights land or native title land as part of the CFI and be issued with
ACCUs for any carbon reduction or removal achieved. However, as I discuss below,
the participation of Aboriginal and Torres Strait Islander peoples in carbon
markets is currently limited by the CFI Act’s treatment of non-exclusive
native title land.
What projects are eligible?
There are three types of projects that may be eligible for ACCUs under the
CFI Act:
- ‘emission reduction projects’ – these are projects
that reduce emissions of greenhouse gases (such as savannah fire management
which reduces emissions caused by wildfires) - ‘sequestration projects’ – these are projects which
remove carbon by storing it in the land, soil or trees (such as growing a
forest) - ‘native forest protection projects’ – these are projects
that protect native forests from, for example, clearing, clear felling and
logging.[44]
To be
eligible a project must have a methodology approved by an independent committee
(Domestic Offsets Integrity
Committee).[45] A methodology
contains detailed rules for ‘implementing and monitoring specific
abatement activities and generating carbon credits under the
scheme’.[46] Methodologies
are already being developed for savannah fire management, feral camel management
and environmental plantings.[47] In
Text Box 1.2 I discuss an example of savannah fire management as an emissions
reduction project.
Further, projects must deliver new and ‘additional’ abatement
(reduction) of carbon. This means that ACCUs won’t be available for
abatement activities that are already widely in
use.[48] To be considered
‘additional’, an abatement project must not be common practice in
the relevant industry.[49]
The Minister may determine that certain activities or types of projects are
not common practice and should be recognised as ‘additional’ for the
purposes of eligibility for ACCUs. Those activities or types of projects that
are determined to be ‘additional’ will be registered on a
‘positive list’ in the regulations to the CFI
Act.[50]
Activities which pose a risk to the environment or employment will not be
eligible for ACCUs and will be on the ‘negative
list’.[51]
|
Text Box 1.2: Western Arnhem Land Fire Abatement Project (WALFA): |
|
In the Native Title Report 2007 my predecessor profiled the Western The WALFA project began in 2006 and is a partnership between the Aboriginal The WALFA project area is populated by tropical savannah which is The project achieves this is by reintroducing traditional Aboriginal fire Traditionally Aboriginal land managers would burn much of the country in The project burning is carried out under the management of the NLC in This landmark project not only meets government environmental objectives in |
Who can carry out projects?
Every eligible project under the CFI Act must have a ‘project
proponent’.[56] A project
proponent is the person who is responsible for the project, has the legal right
to carry out the project and, in relation to carbon sequestration projects, hold
the legal right to store carbon in the project
area.[57] The project proponent also
receives the carbon credits.[58]
‘Sequestration projects’ require the right to benefit from
sequestration (storage) activities on the land (a ‘carbon sequestration
right’) because these projects must be maintained for a long period of
time and may impact on the rights of others.
Because a project proponent must have the legal right to carry out the
project, there must be a determination of native title before native title
holders can undertake a project on their
land.[59] However the CFI Act
applies differently to land held under exclusive native title as distinct from
land held under non-exclusive native
title.[60]
Exclusive native title holders
If the native title holders hold exclusive native title rights, there is no
need to establish that the native title includes the right to carbon. The
Registered Native Title Body Corporate (RNTBC) will be automatically taken to be
the ‘project proponent’ and to hold the carbon sequestration
right.[61]
Consistent with the objective of treating Aboriginal and Torres Strait
Islander land as similar as practicable to freehold land, where a project takes
place on exclusive possession native title land, the Crown’s consent is
not required. [62]
Non-exclusive native title holders
The CFI Act does not provide any special treatment for non-exclusive native
title.[63] The Replacement
Explanatory Memorandum states:
The bill does not provide any special treatment for non-exclusive native
title holders with respect to carbon sequestration rights or the right to carry
out a project. It would not be appropriate for the bill to provide an automatic
right to benefit from carbon sequestration or to carry out the project for
non-exclusive native title holders in circumstances where there may be other
interests in the land.[64]
Holders of non-exclusive native title do not have an automatic right to
benefit from eligible sequestration projects under the
CFI.[65] If the native title is
non-exclusive native title holders would need to establish that their native
title includes a right to carbon, for example, through a consent determination,
to undertake a recognised sequestration
project.[66]
Who can consent to projects?
Any person with an ‘eligible interest’ in the project area must
give their consent in writing to a sequestration offsets
project.[67] The CFI Act provides
that an ‘eligible interest’ includes any native title land for which
there is a registered native title body
corporate.[68] This would include
land held under non-exclusive native
title.[69] Consent to a
sequestration project may be set out in a registered
ILUA.[70]
This means that in addition to undertaking projects, native title holders can
also participate in the CFI by providing their consent to ‘project
proponents’ carrying out carbon sequestration projects on land in which
they have an ‘eligible interest’. This could enable native title
holders to negotiate for a benefit in return for their consent to a
sequestration project being carried out on their native title
land.[71]
(ii) Concerns about the effect of the CFI Act on
Aboriginal and Torres Strait Islander land
In commenting on the CFI Bill, before it passed, the National Native Title
Council (NNTC) acknowledged ‘that the Carbon Farming Bill provides an
appropriate treatment of exclusive possession native title, as near as
practicable to that of
freehold’.[72] However it has
concerns about the way the Bill might apply to non-exclusive native title
land.[73] The NNTC states:
The failure to provide a clear pathway for non-exclusive native title holders
into participation in offset projects is a major weakness in the Carbon Farming
Bill. The Bill fails to treat non-exclusive native title rights as valuable
property.[74]
The Senate Standing Committee also concluded in its Report into the CFI Bill
that it was a failure of the Bill not to ‘specifically address the ability
of non-exclusive native title holders to participate in the
CFI’.[75] The Australian
Greens’ amendment to the CFI
Bill,[76] which requires the consent
of non-exclusive native title holders for sequestration projects, offers some
protection for non-exclusive native title holders, however it does not address
all concerns.
For example, with respect to the right to carry out a ‘carbon
sequestration project’ the NNTC submitted to the Senate Standing Committee
that there is no mechanism to recognise co-ownership of carbon sequestration
rights between non-exclusive native title holders and others, such as the State.
They submitted that where non-exclusive native title holders have the rights to
use flora or timber, and forgo these rights (to reduced carbon emissions), this
should be translated into a corresponding share of the total carbon
sequestration rights.[77]
The NNTC also suggested that there is no recognition in the CFI Bill that
native title holders could contribute to emissions avoidance by foregoing
activities covered by their non-exclusive native title rights, such as burning
or managing natural resources.[78]
These issues should be addressed because even though non-exclusive native
title rights may not be recognised as full legal ownership of the land, native
title rights holders in many instances will continue to care for country and
promote environmental sustainability.
(iii) Where to from here?
The Senate Standing Committee recommended that the Australian Government
address obstacles to the participation of Aboriginal and Torres Strait Islander
peoples in the CFI, such as resolving the uncertainties in relation to
non-exclusive native title land.[79] In response the Government agreed with this
recommendation.[80]
Just outside the Reporting Period the Australian Government released an
additional consultation paper which canvasses how Aboriginal and Torres Strait
Islander landholders can participate in the CFI and outlines outstanding issues
in relation to Indigenous land.[81] These issues include, for example, the participation of non-exclusive native
title holders in ‘carbon sequestration projects’ and whether
registered native title claimants should have the ability to consent to
projects. The Government has committed to completing a detailed legal analysis
of the interaction of the CFI scheme with native title before making amendments
to the CFI Act.[82]
This consultation process must be informed by affected stakeholders including
Native Title Representative Bodies (NTRBs), Prescribed Bodies Corporate (PBCs),
Land Trusts and organisations such as the National Indigenous Climate Change
working group.
In the Native Title Report 2010 I outlined one of the themes of my
tenure as Social Justice Commissioner as ‘enhancing our capacity to
realise our social, cultural and economic development aspirations’.
We must have access to opportunities that enable us to realise our social,
cultural and economic aspirations. Access to carbon markets is one such
opportunity. It has the potential to leverage economic benefits for Aboriginal
and Torres Strait Islander peoples through participation in carbon abatement
projects. I urge the Government to support conservation efforts of Traditional
Owners through join-management of national park arrangements under ILUAs or
State land rights regimes, and recognise these practices as eligible projects
under the CFI.
Given the number of issues raised by native title stakeholders concerning the
way the CFI Act may apply to Aboriginal and Torres Strait Islander land I
outlined above, I am pleased that the Government is committed to considering
these issues further in order to get it right.
Governments must work with us to remove the barriers which deny us the same
access as other landholders to the CFI scheme. I hope this further consultation
process will enable the Government to fulfil its commitment to facilitate the
full participation of Aboriginal and Torres Strait Islanders in carbon
markets.[83] One way of doing this
would be to consider Aboriginal and Torres Strait Islander economic development
under the CFI as part of the draft Indigenous Economic Development Strategy.
In addition to addressing legislative barriers, there is also a need for
education and capacity building initiatives to enable Aboriginal and Torres
Strait Islander peoples to participate effectively in carbon market
opportunities. The Australian Government has recently announced that support
will be provided to assist the participation of Aboriginal and Torres Strait
Islander peoples in the CFI through the $22 million Indigenous Carbon Farming
Fund, and funding provided for specialists to assist Aboriginal and Torres
Strait Islander peoples with
projects.[84]
I encourage ongoing support to build Aboriginal and Torres Strait Islander
peoples’ capacity to fully access the benefits under the CFI. A number of
organisations suggested an independent statutory authority could assist with
this.[85]
At the time of writing this Report the submission process was still open
concerning the further consideration of Indigenous land issues. I will continue
to monitor this process.
(d) Native Title Amendment Act 2009
(Cth)
The Native Title Amendment Act 2009 (Cth) (Amendment Act)
commenced on 18 September 2009. The aim of the Amendment Act is to amend the
Native Title Act to ‘contribute to broader, more flexible and quicker
negotiated settlements of native title claims’ which will ‘result in
better outcomes for participants in the native title
system’.[86]
I reported on some aspects of the Amendment Act in the Native Title Report
2010, however, in preparing that Report I was advised that while the
Attorney General’s Department, the Federal Court of Australia and the
National Native Title Tribunal were monitoring the effect of the Amendment Act,
it was too soon to determine the impact of these amendments on the disposition
of native title claims.[87]
One year on I seek to review how the amendments have been implemented, and
the impact they have made, during the Reporting Period. In Text Box 1.3 I
outline the amendments.
| Text Box 1.3: Native Title Amendment Act 2009 (Cth) |
|
As I reported last year, the Amendment Act amended the Native Title Act
|
(i) Management of claims by the Federal
Court
Following the introduction of the Amendment Act, the Federal Court
implemented a number of initiatives to give effect to the reforms and to improve
the time which it takes to resolve a Native Title
case.[93]
List of native title mediators
One of the Federal Court’s new powers is to refer a claim to
‘another individual or body’. To facilitate this, the Federal Court
decided to establish a panel of suitably qualified mediators which the parties
or the Court could refer to when considering the reference of a matter or part
of a matter to a mediator.[94]
Expressions of interest for the list were sought in early
2010.[95] The list was finalised in
July 2010 with over 60 mediators expressing an interest being on the list. The
list, which is to be updated annually, is available on the Federal Court’s
website.[96]
The Federal Court has advised me that parties and the Court have adopted a
cautious approach, with only five referrals having been made. However, all
referrals have resulted in settlement of the dispute subject to the
mediation. [97]
Prioritisation of cases
In order to improve the length of time taken to resolve native title cases,
the Federal Court established a list of priority cases across each state and
within the area of each NTRB or
NTSP.[98] This list was first
published on the Federal Court’s website on 1 July 2010 and is regularly
updated to reflect changing priorities and the finalisation of
matters.[99]
The criteria used to determine priorities includes whether the case
involves:
-
a matter of the public interest
-
whether the resolution of the case will impact on other cases or the
attitudes of the parties and in turn speed up the resolution of other related
cases -
the level of future activity
-
the views of the parties
-
the level of preparedness of the Applicant
-
the age of the
case.[100]
The Federal
Court has advised that 45 matters on the priority list were finalised in the
Reporting Period. Of these, 28 were determined by the court of which 24 were by
consent.[101]
Matters beyond native title
The Amendment Act also extended the powers of the Federal Court to make
orders to give effect to the terms of an agreement that involve matters other
than native title.[102] The Court
has advised me that these provisions are often brought to the attention of the
parties as a ‘vehicle for promoting agreement making and
efficiency’.[103]
(ii) What has been the impact of the Amendment
Act?
Have there been broader, more flexible and quicker negotiated settlements
of native title claims and better outcomes for participants in the native title
system?
The answer to this question, as yet, is not clear. The Attorney-General has
said that there has been an increase in the number of native title consent
determinations[104] and a
significant increase in the number of native title claims resolved, particularly
through negotiated agreements. He has argued that it is a direct result of the
amendments that a ‘threefold increase in the number of native title claims
settled by consent determinations in 2010-11 (twenty seven) compared to 2009-10
(nine)’ has been
seen.[105]
The statistics do demonstrate that there has been an increase in consent
determinations however it is not yet clear whether the amendments are
contributing to broader and more flexible settlements and are resulting in
better outcomes. Graeme Neate, President of the National Native Title Tribunal,
has also said:
It is difficult to state to what extent the amendments or their
implementation have promoted agreement-making, in particular as to
determinations of native title or broader, more flexible
settlements.[106]
There is evidence from some NTRBs that the amendments are having a positive
effect. One NTRB in the Northern Territory has said that the Federal Court
having the central role of managing claims given has been a welcome development
which enables ‘effective and more rapid
determinations’.[107] Central Desert Native Title Services (CDNTS) has also remarked that the Federal
Court’s management of claims ‘is proving constructive in that it
demands that parties meet milestones within timeframes. This has forced the
State to progress matters that had been stalling under NNTT
direction’.[108] However
CDNTS has also reported that the effect of these amendments has been limited in
terms of the rate of resolution because of the ‘current State
government’s hard line approach to native
title’.[109]
Comments from other representative bodies have been less favourable about the
amendments. Kevin Smith, CEO of Queensland South Native Title Services (QSNTS),
says the new approach by the Federal Court has placed another layer of
complexity on an already burdensome workload. Responding to the Federal
Court’s approach in Queensland of resolving all existing claims within 10
years and all new claims within 5 years, he comments that while this
might sound like a measured staged approach but the reality is if connection
is not accepted as a threshold issue then the matter can only go in one
direction and that is straight to trial without too many happy
outcomes.[110]
What has been the impact on resources?
Governments and NTRBs have a different view on the impact the Amendment Act
has had on the resources of participants. For example, the Australian Government
acknowledges that a result of the Federal Court’s prioritising of matters
to achieve a faster resolution of claims has been escalated pressure on all
parties. It also contends that the quantum of resources available to NTRBs was
increased in the 2009 Budget (by $62 million over four years) and ‘with
some reordering of priorities from time to time, NTRBs have so far been able to
accommodate the additional
pressures’.[111]
However comments from NTRBs suggest this is not the case. QSNTS has said:
Another important matter that the court does not fully appreciate from a
capacity perspective is the time and energy needed to negotiate ILUAs and other
agreements to make the consent determination work on the ground; time, energy
and resources on doing claim resolution ILUAs can almost be equivalent to the
time, energy and resources of preparing for
trial.[112]
While there has been an increase of funding to NTRBs and Native Title Service
Providers (NTSPs), the comments from NTRBs suggest that additional resources
would assist them to improve the rate of resolving claims.
Relationship between the NNTT and the Federal Court
Most stakeholders have commented that they have observed an increase in the
intensive case management of native title matters by the Federal Court. In this
section I have also discussed the Court’s new list of native title
mediators and its prioritisation of cases.
The NNTT also has a significant role in this process. The NNTT has committed
to continue to work with the Court and the parties to assist parties:
- to reach agreement on relevant matters such as whether native title exists
and who holds native title - to negotiate any other forms of agreement that might be conditions of, or
associated with, a determination of native title - to negotiate agreements that do not involve a determination of native
title.[113]
The NNTT
has suggested that much of the success of individual claimant applications to
date has resulted from a ‘closely coordinated approach to mediation and
related matters between the Court and the
Tribunal’.[114]
Next steps
While there were more consent determinations in this Reporting Period than
the last, there doesn’t appear to be evidence that suggests the agreements
are broader, more flexible or resulting in better outcomes. This isn’t to
suggest it is not the case, however it appears that we are yet to see the full
effect of the amendments and most parties have adopted the attitude of
‘let’s wait and see’.
For example, the Federal Court has set a target of finalising all cases on
their priority claim list within two years of their allocation to the list. The
result of this would be resolution of almost a third of native title claims in
the system by May 2013.[115] It
will take some time to know whether the amendments have this effect.
I agree with the NNTT that there are numerous factors that delay the
resolution of claims.[116] Any
amendments to the Native Title Act or improvement to the NNTT and Federal
Court’s processes will have a negligible effect if the parties are
‘unwilling or unable to participate productively or in a timely
manner’.[117]
The NNTT’s characterisation of parties as being potentially
‘unwilling or unable’ is consistent with the feedback I have
received for this year’s Report.
For parties to be ‘willing’ to negotiate more timely, flexible
and broader native title settlements, there often needs to be a cultural
change, from one of litigation to one of interest-based negotiation. Even the
Attorney-General has acknowledged that these amendments alone will be
insufficient. He said:
The effect of the amendments contained in this bill, combined with a
dedication to behavioural change by all participants in the system in the
interests of those that the system is intended to benefit, will improve both the
operation of the system and the outcomes we can achieve under
it.[118]
For parties to be ‘able’ to benefit from the amendments, they
must have the resources to do so. The Government must ensure that all parties
are appropriately funded to participate effectively in the new Court
processes.
So where to from here?
The Federal Court advised that senior officers of the Court, through
membership of the Commonwealth Native Title Coordination Committee, meet with
representatives of FaHCSIA and the Attorney-General’s Department to
consider how all agencies involved can be best supported to ‘achieve
results in a timely and efficient manner as well as to consider the impact and
effectiveness of the 2009
amendments’.[119]
I urge this Committee to engage with NTRBs and NTSPs to evaluate the impact
the amendments are having on resources in comparison with the gains that are
being achieved by way of broader, more flexible and more timely agreements.
I will continue to monitor the impact of these amendments. Furthermore, I
agree with the South West Aboriginal Land & Sea Council’s suggestion
that the impact of these reforms be reviewed in a few years to determine their
effectiveness.[120]
(e) Native Title Amendment Act (No 1) 2010
(Cth)
(i) What is the Native Title Amendment Act (No
1) 2010 (Cth)?
The Native Title Amendment (No 1) Act 2010 (Cth) (Amendment Act (No
1)) commenced on 15 December 2010. The Amendment Act (No 1) creates a new future
act process which aims to provide ‘a process to assist the timely
construction of public housing, staff housing and a limited class of public
facilities...for Aboriginal people and Torres Strait Islanders in communities on
Indigenous held
land’.[121]
In the Native Title Report 2010 I reported on the Native Title
Amendment Bill (No 2) 2009 (Cth) (the Amendment Bill (No 2)) and the
consultation process leading to its
introduction.[122] Because of the
federal election in August 2010, this Bill lapsed on 28 September 2010. This
Bill was almost identical to the Amendment Act (No 1), which was introduced
following the election.[123]
In that report I suggested that the reforms, now contained in the Amendment
Act (No 1), were unnecessary as the Native Title Act already provides mechanisms
for ‘facilitating the construction of housing and infrastructure with the
consent of Traditional Owners – that is, through the use of
ILUAs’.[124] I was concerned
that:
-
the new future act process may encourage governments to circumvent
agreement-making
processes[125] -
the process will diminish the ability of Aboriginal and Torres Strait
Islander peoples to exercise their rights, including their rights to
self-determination; to participate in decision-making; and to determine and
develop strategies and priorities for the development or use of their lands or
territories and other
resources.[126]
The
Australian Government suggested that this process is ‘most relevant’
to Queensland and Western
Australia.[127] While I am not
aware of any issues with the new process in Western Australia, a number of NTRBs
in Queensland have advised me that they have received s 24JAA notices and have
noted concerns with the application of the new future act process.
(ii) Has the use of s 24JAA circumvented the
free, prior and informed consent of Aboriginal and Torres Strait Islander
landholders?
The Queensland Government has advised me that, while the State has not issued
any s 24JAA notices, it is aware of a number of notices being issued by
Indigenous Councils as the ‘action
body’.[128]
The Cape York Land Council (CYLC) has said:
Native Title holders were led to believe that Section 24JAA was introduced to
be used as a measure of last resort where there was unreasonable recalcitrance
on the part of Native Title holders to give required consents...no attempt to
obtain voluntary Native Title holder consent to the acts that it proposes; it
has simply used Section 24JAA as a measure of first resort with the clear
intention of not seeking to deal voluntarily with Native Title
holders.[129]
Similarly the Torres Strait Regional Authority (TSRA) has reported that:
Section 24JAA provides expropriation without consent of native title rights
and interests. It is in clear and fundamental breach of the letter and spirit of
human rights principals and interests. There has been no effective consultation
of 24JAA procedures to date. The consultation procedures are not effective as
they aim to merely inform as opposed to also gain consent by
agreement.[130]
In the Native Title Report 2010 I recommended that governments commit
to only using the new future act process as a measure of last
resort.[131] This does not appear
to have happened. The experiences of CYLC and TSRA suggest that in far north
Queensland the new future act process is not being used as a measure of last
resort.
Fortunately, this does not appear to be uniform practice across Queensland.
Queensland South Native Title Services (QSNTS) has advised that it has
established an in principle agreement with the relevant state Minister that
ensures free, prior and informed consent is obtained via an ILUA rather than use
s 24JAA.[132]
In addition, the Queensland Government has advised me that the State is
‘in the process of seeking to negotiate throughout Queensland a number of
other Indigenous Land Use Agreements which have native title consent for public
housing and infrastructure for Aboriginal and Torres Strait Islander peoples as
their subject
matter’.[133]
ILUAs are the product of agreement-making under the Native Title Act.
Agreement-making can be an expression of free, prior and informed consent and
the beginning of cooperative relationships with governments and other
parties.[134] This is the
preferable approach under the Native Title Act. As the Australian Government has
said:
...agreement-making can play an important role in helping to close the gap
between Indigenous and non-Indigenous Australians. Native title negotiations can
also provide opportunities to facilitate the reconciliation process and to forge
new, enduring
relationships.[135]
Further, it is evident from QSNTS and the Queensland Government’s
comments that the ILUA process is still an appropriate option for the
construction of public housing and public infrastructure on Indigenous-held
land.
Given this, I remain unconvinced that the new future act process is
necessary. As an alternative, if parties are still encountering barriers to
effective agreement-making in the case of building public infrastructure, I
reiterate my recommendation from last year and urge the Australian and State
Governments to work with native title stakeholders, in particular those NTRBs
and councils most affected, to explore options of streamlining agreement-making,
such as template
agreements.[136]
Finally, if ‘action bodies’ are utilising the new process, in
consulting with a claimant or RNTBC, they are required to comply with
requirements determined by the Minister by legislative
instrument.[137] Last year I
recommended the Australian Government begin a process to establish these
consultation requirements in conjunction with Aboriginal and Torres Strait
Islander peoples.[138] At the time
of writing I am not aware of this process being established. I urge the
Government to consult with Aboriginal and Torres Strait Islander peoples to
develop these consultation
requirements.[139]
(f) Traditional Owner Settlement Act 2010
(Vic)
(i) The Settlement Act
The Traditional Owner Settlement Act 2010 (Vic) (Settlement Act)
commenced on 23 September 2010.
The Settlement Act gives legislative effect to the Victorian Native Title
Settlement Framework.[140] The
Framework ‘provides for out of court settlement packages that allow
Traditional Owners to settle their land claim directly with the State outside
the Federal Court
processes’.[141]
The Settlement Act reflects the relevant parts of the Framework report,
however there are some matters that will be detailed in policy rather than
legislation.[142] One matter that
is not reflected is the ‘Right People for Country Project’ which
facilitates the resolution of Traditional Owner boundary and membership
issues.[143] I discuss this
project further in Chapters 2 and 4.
(ii) Land justice: recognition by agreement
The Settlement Act facilitates a process which ‘recognise[s]
traditional owners of land based on their traditional and cultural associations
to certain crown land in
Victoria’.[144] It does so
by authorising the creation of a series of agreements between the State of
Victoria and entities which represent traditional owner
groups.[145]
The principal agreement is a recognition and settlement agreement (RSA) for
an area of public land. An RSA ‘will primarily provide recognition for
traditional owners and will record a settlement of a native title
claim’.[146] The RSA will
also be composed of a number of sub-agreements including a land transfer
agreement, land use activity agreement, natural resources agreement, funding
agreement and an Indigenous Land Use Agreement
(ILUA).[147]The ILUA will provide
native title certainty to the State and give security to Traditional
Owners.[148]
In the Native Title Report 2010 I discussed the Australian
Government’s funding commitment towards the first two settlements under
the Framework and the Victorian Government’s progress in developing the
legislative and policy detail required to bring the Framework into
operation.[149] I am pleased to
see that these efforts have now come to fruition in the form of the Settlement
Act and congratulate all parties for their efforts. This is an example of
reforms made in partnership with Aboriginal and Torres Strait Islander peoples
which begins to create a fairer process for land justice.
I encourage other states and territories to follow the lead of Victoria and
work with the Australian Government to explore options for more flexible and
less costly ways to achieve land justice. The Australian Government has advised
me that future assistance to State and Territories will be considered on a
case-by-case basis.[150]
The first settlement achieved under the Settlement Act was the Gunaikurnai
consent determination. I discuss this agreement in Text Box 1.4.
| Text Box 1.4: Gunaikurnai native title determination |
|
The Gunaikurnai consent determination is the first settlement reached under The determination recognises the Gunaikurnai people’s traditional The agreement includes the return of land to the Gunaikurnai people through Importantly it allows for funding for the Gunaikurnai people to manage Senior Gunaikurnai Elder Albert Mullett said that ‘his people had The Attorney-General said that ‘today’s settlement is a |
1.3 Australian Government discussion papers
In this section I discuss four consultation papers released by the Australian
Government during the Reporting Period:
-
Draft Indigenous Economic Development Strategy Discussion Paper
-
Leading practice agreements: maximising outcomes from native title benefits
Discussion Paper -
Native Title, Indigenous Economic Development and Tax Consultation
Paper - Stronger Futures in the Northern Territory Discussion Paper.
In
last year’s Native Title Report I outlined a number of principles for
meaningful and effective
engagement.[160] One of the
principles is that consultation processes should be coordinated across
government departments in order to ease the consultation
burden.[161] Last year a number of
stakeholders raised that governments did not do this
well.[162]
During the Reporting Period I have seen more of the same. Submissions for the Leading practice agreements: maximising outcomes from native title benefits
Discussion Paper and the Native Title, Indigenous Economic Development
and Tax Consultation Paper were both due on 30 November 2010. Submissions
for the Draft Indigenous Economic Development Strategy discussion paper were due
two weeks later on 17 December 2010.
I discuss each of these consultation papers as they have relevance to our
rights to our lands, territories and resources. Given the possible effect of the
proposed changes on our rights, it is important that the Government engages
meaningfully and effectively in order to obtain our free, prior and informed
consent.
(a) Draft Indigenous Economic Development
Strategy Discussion Paper
The Australian Government released its Draft Indigenous Economic Development
Strategy (IEDS) for consultation on 24 May
2010.[163] The IEDS is accompanied
by the Indigenous Economic Development Framework and the Action Plan
2010-2012.[164] The Government
received approximately 98 submissions and held 20 public consultation
workshops.[165]
The aim of the IEDS is to ‘increase the wellbeing of Indigenous
Australians by supporting greater economic participation and
self-reliance’.[166] The
IEDS states that economic development requires the interaction of a range of
interdependent areas and requires new partnerships between Aboriginal and Torres
Strait Islander peoples, the private sector, governments and the
community.[167]
The IEDS focuses on five key priorities for action:
- education and building the capacity of individuals
- creating and realising job opportunities
- business and enterprise development
- financial security and independence
- creating the incentives and environment for full Indigenous economic
participation.[168]
On
17 December 2010 the Australian Human Rights Commission made a submission to the
Department of Families, Housing, Community Services and Indigenous
Affairs.[169] The Commission
outlined a principle-based framework to guide the future development of the IEDS
that is consistent with the Declaration and highlighted key issues for inclusion
in the IEDS which are based on community decision-making and control.
In this section I briefly outline some of the key points from this submission
that have relevance for the native title system. This includes our right to
development with the Declaration being used as a guide for the IEDS, and the
importance of being able to leverage economic development opportunities from our
lands, territories and resources.
(i) Our right to development
The design of the IEDS should be consistent with the Declaration. The
Declaration affirms our right to self-determination. By virtue of that right, we
freely determine our political status and freely pursue our economic, social and
cultural
development’.[170]
We also have the right to maintain and strengthen our own ‘distinct
political, legal, economic, social and cultural institutions’, and to
‘determine and develop priorities and strategies’ for exercising our
right to development.[171]
To ensure the IEDS reflects the ‘priorities and strategies’ of
Aboriginal and Torres Strait Islander peoples to pursue our own approaches to
economic development, we need to be actively involved, in the design,
development, implementation, monitoring and evaluation of the
IEDS.[172]
As identified in the IEDS, one of the specific ways of pursuing economic
development is to ‘[i]ncrease the capacity of native-title holders and
claimants to identify and exploit economic opportunities through improved
agreements and procedural
rights’.[173] However more
fundamentally, our rights to our lands, territories and resources must first be
recognised and strengthened before economic development can occur.
(ii) Addressing
barriers to economic development in the native title system
Economic development is hindered by obstacles in the native title system. In
particular, the previous Social Justice Commissioner identified six specific
aspects of native title law and policy that can act as inhibitors to economic
development. These include:
-
the test for the recognition of native title
-
the test for the extinguishment of native title
-
the nature of native title: a bundle of rights
-
the rules that regulate future development affecting native title rights
-
inadequate resourcing for Aboriginal and Torres Strait Islander bodies in
the native title system -
the goals of governments’ native title
policies.[174]
Most
of these issues have also been identified in Senator Siewert’s Native
Title Amendment (Reform) Bill 2011(Cth) as being in need of reform to deliver
land justice for Aboriginal and Torres Strait Islander peoples.
I support the Commission’s recommendation that the IEDS should include
a commitment from the Australian Government to work with Aboriginal and Torres
Strait Islander peoples to identify and address barriers to economic development
within the Native Title Act 1993 (Cth) and the broader native title
system.
In particular, the Australian Government should 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.[175] Further, the IEDS
should commit to this review as necessary to facilitate economic development
opportunities through native title.
(iii) Strengthening
governance and capacity
Developing capacity of Aboriginal and Torres Strait Islander
peoples
A further aim in the IEDS is to strengthen governance and capacity ‘to
improve policy, economic, financial and social
decision-making’.[176] In
this area, the Government will:
-
encourage more sustainable and transparent management of native title
benefits for current and future generations -
help build corporate governance experience in Indigenous corporations that
manage assets on behalf of a community or group.
I support
Government initiatives to assist native title groups to negotiate beneficial
agreements and improve governance structures. However this support should focus
on capacity development rather than regulation. I discuss this further below in
section 1.3(b).
Ensuring Government capacity to facilitate economic development
It is also important for government departments to develop their own capacity
to deliver on the objectives of the IEDS.
This includes cultural competence to ensure policies and programs under the
IEDS support the sustainability and self-determination of Aboriginal and Torres
Strait Islander communities and effective coordination across departments and
within the various levels of
Government.[177] This is supported
by the Australian Government’s Strategic Review of Indigenous
Expenditure which was released under Freedom of Information laws. It
recommended that a ‘renewed commitment should be made within the
Commonwealth to a coordinated, whole-of-government approach to the delivery of
programs and services to Indigenous
people’.[178]
(iv) Where to next?
FaHCSIA has advised me that it has considered the more than 100 submissions,
met with identified key stakeholders to discuss the IEDS, engaged with over 700
participants in public consultation workshops, and engaged in additional
discussions with Aboriginal and Torres Strait Islander communities through the
Indigenous Coordination Centres (ICC). It also advised me that the Indigenous
Economic Development Strategy will be released
shortly.[179]
I am hopeful that the final version of the IEDS incorporates the feedback of
Aboriginal and Torres Strait Islander stakeholders. I look forward to working
with Aboriginal and Torres Strait Islander peoples, governments and the private
sector to facilitate greater participation by Aboriginal and Torres Strait
Islander peoples in economic development.
(b) Leading practice agreements:
maximising outcomes from native title benefits discussion paper
On 3 July 2010 the Australian Government released the Leading practice
agreements: maximising outcomes from native title benefits Discussion Paper
(the Agreements Discussion
Paper)[180] which aims to
‘explore measures to enhance the sustainability of benefits in agreements
for native title
groups’.[181]
The Government’s approach involves ‘improving the future acts
regime and promoting leading practice in agreement making, including through a
review mechanism’.[182] The
specific mechanisms explored in the Agreements Discussion Paper include:
- encouraging governance measures
-
creating a review function for native title agreements
-
developing a leading practice agreements toolkit
-
streamlining ILUA processes
-
clarifying good faith
requirements.[183]
Public
consultations were held in seven cities in July and November
2010.[184] Written submissions in
response to the Agreements Discussion Paper closed on 30 November 2010. The
Australian Government received 29
submissions.[185]
The Australian Human Rights Commission prepared a submission which focused on
the options for:
-
encouraging entities that receive native title payments to adopt measures to
strengthen their governance -
creating a new statutory function to review native title agreements, with
the objective of improving the sustainability of these agreements -
clarifying the requirements for good faith negotiation under the Native
Title Act.[186]
(i) Governance measures
The Agreements Discussion Paper outlines that the Government is considering
measures to encourage entities that receive native title payments to adopt
measures to strengthen governance, including:
-
incorporating under either the Corporations (Aboriginal and Torres Strait
Islander Act) 2006 or the Corporations Act 2001 -
appointing one or two independent directors
-
adopting enhanced democratic
controls.[187]
The
Agreements Discussion Paper also suggests that a way to encourage the adoption
of governance measures is to mandate them or make any new tax benefit
conditional on the adoption of the measures and leading practice
principles.[188]
These are options that some organisations may choose to utilise. However I am
concerned at the suggestion that these measures will be mandated or linked to
beneficial tax treatment. This approach would not ‘empower Aboriginal and
Torres Strait Islander peoples to develop governance arrangements that are
legitimate, effective, and appropriate to their
circumstances’.[189] Governance arrangements need to be the product of consensus and should be
focused on community
development.[190]
The Commission outlined that effective, sustainable governance is more likely
to be achieved when Aboriginal and Torres Strait Islander peoples are able to
exercise genuine decision-making
authority.[191] This was supported
by a key finding from the Indigenous Community Governance Project (the
Governance Project)[192],
conducted by Reconciliation Australia and the Centre for Aboriginal Economic
Policy Research, which stated:
[G]overnance is greatly strengthened when Indigenous people create their own
rules, policies, guidelines, and codes, as well as design mechanisms for
enforcing those rules and holding leaders
accountable.[193]
The Commission considered that a community development model, rather than
regulation, was the preferred approach to supporting and strengthening this
governance. For example, the Government should ensure sufficient training,
resources and access to expertise are available to ensure Aboriginal and Torres
Strait Islander peoples are able to:
- develop effective and sustainable governance mechanisms
- understand their rights as members of a native title entity
- understand their duties within the entity (particularly as directors)
- implement governance mechanisms or amend them where
necessary.[194]
One
way of supporting this approach would be for the Australian Government to help
establish an ‘Indigenous Governance Institute’ to develop the
capacity of communities to design and implement effective governance
mechanisms.[195] This would be
consistent with the Declaration which provides that ‘[i]ndigenous peoples
have the right to have access to financial and technical assistance from
States...for the enjoyment of the rights contained’ in the
Declaration.[196]
(ii) A new statutory review function
The Agreements Discussion Paper also includes a proposal for a new statutory
review function. This would require native title parties to register
‘future act’ agreements with a review body which may be assessed
against ‘leading practice
principles’.[197]
The Government proposes that this new function could support native title
parties to maximise the benefits from native title agreements now and in the
future.[198] However the
Commission submitted that a statutory review function was not the way to achieve
these benefits. In particular it said:
- the Government has not adequately demonstrated the need for a new statutory
review function - the statutory function will do little to empower, and may possibly undermine
the capacity of, Aboriginal and Torres Strait Islander peoples and their
representatives to negotiate or enforce compliance with
‘sustainable’ agreements - the potential elements of the review function, as explored in the Agreements
Discussion Paper, are problematic and should be
reconsidered.[199]
Instead
the Government should focus on capacity
development.[200] Aboriginal and
Torres Strait Islander peoples face a number of barriers to achieving effective
and beneficial agreements, including inadequate skills levels within the
community, resources and access to expert advice. Aboriginal and Torres Strait
Islander peoples will be unable to enter into or benefit from agreements if
capacity issues are not addressed, regardless of a review function.
In a joint submission The National Native Title Council and the Minerals
Council of Australia agreed. They said:
...rather than seeking to specify those aspects of agreements which determine
that they are leading practice, or establishing any specific review function to
assess the sustainability of agreements, that Government would be better placed
by focusing on a range of capacity building
initiatives...[201]
The Government should consider options for the provision of appropriate
resources to build the capacity of Aboriginal and Torres Strait Islander peoples
to:
- determine, develop and administer projects pursuing their priorities and
aspirations - negotiate and enter into new agreements
- access expert advice
- monitor and enforce compliance with the terms of
agreements.[202]
The
Government could also consider providing further support to existing
capacity-development initiatives such as the NTRB Knowledge Management:
Agreement-making project undertaken by the Australian Institute of Aboriginal
and Torres Strait Islander
Studies.[203]
(iii) Reforms to clarify the requirement to
negotiate in good faith
The Agreements Discussion Paper outlines the Government’s decision to
clarify the good faith requirements in the Native Title
Act.[204] I welcome this decision
as the good faith requirements in the Native Title Act should be
strengthened.
I discuss this in greater detail in section 1.6, in my Report Card of the
Government’s progress against my recommendations from last year. These
reforms are also considered in a section of the Commission’s response to
the Reform Bill which I have included at Appendix 2.
(iv) Next steps
The Attorney-General has advised me that it is considering the 29 written
submissions it has received. I will monitor the outcome of this process. In
doing so I urge the Government to take heed of the Commission’s
recommendation:
That the Australian Government consult and cooperate with affected Aboriginal
and Torres Strait Islander peoples in order to obtain their free, prior and
informed consent before adopting or implementing any legislative or
administrative measure in response to the Agreements Discussion
Paper.[205]
(c) Native Title, Indigenous Economic
Development and Tax Consultation Paper
On 18 May 2010 the Australian Government released a consultation paper
entitled Native Title, Indigenous Economic Development and Tax (Tax
Consultation Paper).[206] This consultation process was suspended due to the 2010 federal election. On 20
October 2010 the Government resumed consultations.
The interaction between native title and the income tax system is complex and
uncertain.[207] In its Tax
Consultation Paper the Government outlines that it ‘intends to consider
reforms that provide greater clarity and certainty’ on how these systems
interact.[208] These proposed
reforms consider:
-
the introduction of an income tax exemption for payments received pursuant
to a native title agreement -
the introduction of a new tax exempt vehicle
-
a native title withholding
tax.[209]
I strongly
support the general aims set out in the Tax Consultation Paper to reduce
complexity and improve certainty. I discuss the particular proposals below.
(i) Income tax exemption
One option suggested is that legislation could provide that payments under a
native title agreement are exempt from income
tax.[210] I support the
introduction of a specific income tax exemption for all payments flowing from
native title agreements. This is because all native title payments, monetary and
non-monetary, are in effect a form of compensation and should not be subject to
taxation.[211] An exemption will
provide certainty of treatment for those in receipt of these payments. This
should be introduced in combination with a new tax exemption vehicle.
(ii) Introduction of a new tax exemption
vehicle
A second option proposed is the establishment of a new tax exemption vehicle,
an ‘Indigenous Community Fund’. Legislation could specify features
such as the types of payments into the fund that would be tax exempt if used for
certain purposes.[212]
I support the establishment of a new tax exemption vehicle for ‘use by
Aboriginal and Torres Strait Islander peoples in receiving and utilising
payments under native title agreements for the benefit of those
peoples’.[213] In the design
of such a vehicle, the Government should ensure that the payments received by
the fund and the purposes for which those funds can be used should be as broad
as possible to ensure maximum benefit for the Aboriginal and Torres Strait
Islander peoples who access the resources of the
fund.[214]
(iii) Native title withholding tax
A third option is a withholding tax. In essence this would require parties
who make payments for the suspension of native title rights and interests to
withhold an amount of tax and pass it onto the Australian Taxation Office before
the payment goes to the native title
holders.[215]
In addition to being inconsistent with the position that native title
payments are in effect a form of compensation and should not be taxable, a
withholding tax is also inequitable given the nature of a flat tax on all
payments.[216] For example,
because a withholding tax would apply to all, an individual recipient of a
native title payment will be taxed even if they may be under the tax-free
threshold and would ordinarily not be liable for income
tax.[217]
(iv) Deductible Gift Recipient concessions
Aboriginal and Torres Strait Islander organisations provide a range of
services. Some of these services will fall within existing categories of
Deductible Gift Recipient (DGR) categories, but others will not.
One way to address this is to have a specific category for Aboriginal and
Torres Strait Islander organisations that operate for the public benefit to
generally advance the conditions and welfare of Aboriginal and Torres Strait
Islander peoples.[218] This
category should also be defined to allow business development
activities.[219] This will assist
to give effect to our right to
development.[220]
(v) Next steps
The Attorney-General has advised that the Government is currently considering
the 33 submissions received in response to the Tax Consultation
Paper.[221] As the Government
considers its position I encourage it to design the new tax exempt vehicle with
the flexibility required to accommodate the distinct needs of Aboriginal and
Torres Strait Islander peoples.
(d) Northern Territory Emergency Response
and the Stronger Futures in the Northern Territory Discussion Paper
(i) Background
The Northern Territory Emergency Response (NTER) is a series of measures
announced by the Howard Government on 21 June 2007 in response to the Little
Children are Sacred report.[222]
A key concern for Aboriginal and Torres Strait Islander peoples was the
deeming of the NTER measures to be special measures for the purposes of the Racial Discrimination Act 1975 (Cth) (RDA) and the suspension of the RDA
in relation to the provisions of the NTER legislation and any acts done under or
for the purposes of those
provisions.[223] This meant that
individuals had no right to bring a complaint under the RDA with respect to
provisions of the legislation.
From June to August 2009 the Australian Government consulted with Aboriginal
communities on ways that certain identified NTER measures could be
‘redesigned’, including lifting the suspension of the RDA. The
result of this consultation was the passage of the Social Security and Other
Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination
Act) Act 2010 (Cth).
In the Native Title Report 2010 I discussed the redesigned measures
relating to land, in particular the compulsory acquisition of five-year leases
and analysed the Government’s consultation
process.[224]
Most NTER measures were enacted for a period of five years. Many of these
legislative measures under the NTER are due to cease in August 2012, and funding
measures are set to end on 30 June
2012.[225]
On 22 June 2011 the Australian Government released the Stronger Futures in
the Northern Territory discussion paper (Stronger Futures) detailing
its process for the next stage of the
NTER.[226] I discuss this process
further in the Social Justice Report 2011.
(ii) NTER measures affecting our rights to our
lands, territories and resources
Measures relating to our land, territories and resources are not covered in
the eight Stronger Futures priority areas.
The Australian Government has said that it will retain the existing five-year
leases until they expire in August 2012. However, it has also committed to
progressively transition to voluntary leases during this
period.[227] In addition the
Government announced on 25 May 2010 that it had started to pay rent to
Aboriginal land owners in 45 of the 64 communities subject to five-year leases
and that rent will be backdated to the commencement of the leases in
2007.[228]
While I welcome the Government’s commitment to progressively transition
to voluntary leases in these communities, and pay rent, I am concerned by
comments that the Government has not paid ‘fair rent’ to the
communities affected by the compulsory five-year
leases.[229]
In Wurridjal v
Commonwealth[230] the High
Court found that the Australian Government is required to pay just terms
compensation for the five-year
leases.[231] I therefore encourage
the Government to work with the Northern and Central Land Councils to ensure
there is agreement on valuation of land and a fair amount of rent is paid to the
communities affected by the five-year leases. I discuss this further in section
1.5(b)(iii) below.
1.4 Marking progress in the native title
system
Throughout this chapter I have discussed a number of legal and policy
initiatives which have impacted, or may have an impact, on the operation of the
native title system.
Independent of this, the native title system continues to lumber on. Whether
the system is fair, or delivers justice, is questioned, however until
appropriate reform is progressed we must make the best of what we have. Native
title parties continue to make applications for native title, continue to reach
agreements, and continue tirelessly, to seek remedy in some way to the
injustices of the past. In this section I note two milestones worthy of
reflection:
-
the registration of the 500th Indigenous Land Use Agreement
-
South Australia’s first compensation application for the
extinguishment of native title.
(a) Milestone for
agreement-making
In last year’s Native Title Report I considered reforms related to
agreement-making in the native title system. I also reported the registration of
the 400th Indigenous Land Use Agreement (ILUA) by the NNTT and
celebrated a number of significant agreements that occurred in the previous
reporting period.[232]
On 31 March 2011, the NNTT registered the 500th ILUA.[233] I profile this
agreement in Text Box 1.5. This is a significant milestone and is illustrative
of the continuing trend for parties to negotiate agreements to resolve native
title and other matters. Seventy-one ILUAs were added to the Register of
Indigenous Land Use Agreements in
2010-11.[234] The President of the
NNTT, Graeme Neate, has reported that this is the most new ILUAs registered in
one year since the Act was amended to create the ILUA scheme in
1998.[235]
While I am encouraged by the increasing trend in ILUAs being negotiated, the
road to reach agreement is not always easy. Our people continue to face barriers
to reaching just and equitable agreements, such as inadequate financial
resources and legislative barriers within the native title
system.[236]
Conflict within our own communities can also be a barrier to reaching just
and equitable agreements. Native title structures and processes can serve as
platforms for this conflict to manifest. I am concerned that during the
Reporting Period disputes within our communities have been publicised in the
media. This public attention is not positive for the healing of divisions or the
resolution of agreements. In Chapters 2−4 of this Report I consider
certain types of conflict within native title and options for addressing
them.
| Text Box 1.5: 500th Indigenous Land Use Agreement (ILUA) |
|
Dja Dja Wurrung People and Charlton Harness Racing Club The ILUA is an Area Agreement between the Dja Dja Wurrung People and The agreement relates ‘to the proposed expansion of the Charlton The agreement is spread across an area of approximately 8.6 The NNTT sees this milestone as a reflection of the increased |
(b) Compensation for the extinguishment of
native title rights and interests
Under the Native Title Act 1993 (Cth), there is an entitlement to
compensation for the extinguishment of native title in certain
circumstances.[243] However there
have been no successful compensation applications for the extinguishment of
native title rights and interests. It is also significant that almost 20 years
since the commencement of the Native Title Act the relevant legal principles for
calculating this compensation have not yet been
determined.[244]
This could change with the recent compensation application by the De Rose
Hill native title holders in South Australia. I briefly outline this claim in
Text Box 1.6.
| Text Box 1.6: De Rose Hill compensation application |
|
In 1994 a group of 12 Yankunytatjara and Pitjantjatjara or Antikirinya However the determination area did not extend to any area that was a house, On 9 June 2011 the native title holders for De Rose Hill in South Australia A successful determination of native title compensation in De Rose |
I will continue to monitor the progress and outcome of this application.
1.5 International mechanisms addressing Indigenous
human rights
In this section, I consider developments in international human rights law
that concern native title and our rights to our lands, territories and
resources. I urge the Australian Government to consider these developments and
further implement its commitment to supporting human rights. These developments
include:
-
Expert Mechanism on the Rights of Indigenous Peoples 2010
-
United Nations Permanent Forum on Indigenous Issues 2011
-
Australia’s appearance at the Universal Periodic Review
-
Australia’s appearance before the Committee on the Elimination of
Racial Discrimination.
(a) Expert Mechanism on the Rights of
Indigenous Peoples 2010
The third session of the Expert Mechanism on the Rights of Indigenous Peoples
(the Expert Mechanism) took place from 12 to 16 July 2010. The Expert Mechanism
is a United Nations mechanism that provides thematic expertise on the rights of
Indigenous peoples to the Human Rights Council, the main human rights body of
the United Nations.[249]
A delegation of Aboriginal and Torres Strait Islander representatives
attended the third session of the Expert Mechanism. The two key agenda items for
the third session were:
- a study on Indigenous peoples’ right to participate in decision
making - implementing the United Nations Declaration on the Rights of Indigenous
Peoples.
(i) Right to participate in decision making
As Social Justice Commissioner, I provided a submission to the Expert
Mechanism on the right to participate in decision making.
I asserted my belief that the Declaration is an instrument that can create
institutional structures, arrangements and processes needed for Indigenous
peoples to effectively engage with Governments. This is based on collective
rights to self-determination and decision-making powers through the principle of
free, prior and informed consent. [250]
I am concerned that the Australian Government does not understand what
constitutes genuine consultation and effective engagement. In light of the
Australian Government’s support for the Declaration, governments at all
levels need to change their approaches towards engaging with
us.[251]
The Expert Mechanism conducted a study on Indigenous peoples and the right to
participate in decision-making. At its third session, the Expert Mechanism
adopted the progress report on this
study.[252] This progress report
encompasses the international human rights framework and outlines Indigenous
peoples’ internal decision-making and our participation in decision-making
with State and non-State
institutions.[253] It provides
guidance for governments when developing ways to give full effect to the
principles of the Declaration. Subsequently at its fourth session the Expert
Mechanism adopted the final report on the study of Indigenous peoples and the
right to participate in decision-making and of
proposals.[254]
(ii) United Nations Declaration on the Rights of
Indigenous Peoples
In my statement on implementing the Declaration I suggested that the
Declaration should be given the same status as the Universal Declaration on
Human Rights[255] to ensure
that the rights of Indigenous peoples are explicitly considered in the
development of domestic laws and policy. The next step is for the Government to
work with Aboriginal and Torres Strait Islander peoples to develop a national
implementation strategy that is committed to, by all levels of government, and
ensures the principles of the Declaration are given full effect in
Australia.[256]
The Expert Mechanism recommended to the Human Rights Council that the Council
encourage States to adopt appropriate measures to achieve the objectives of the
Declaration.[257]
(iii) Progressing the studies of the Expert
Mechanism
The thematic expertise of the Expert Mechanism focuses mainly on studies and
research-based advice to the Human Rights
Council.[258] As a result, the
Expert Mechanism doesn’t make specific recommendations to States such as
Australia.
However the expertise developed around these agenda items is integral to the
recognition and exercise of our rights to our lands, territories and resources.
I encourage the Government to consider the Expert Mechanism’s thematic
report on our right to participate in decision-making, in particular its
guidance on ensuring we are involved in all stages of decision-making, when
introducing legislative, policy or administrative proposals which affect our
rights to our lands, territories and
resources.[259]
(b) United Nations Permanent Forum on
Indigenous Issues 2011
The United Nations Permanent Forum on Indigenous Issues (the Permanent Forum)
meets in New York each year. The Permanent Forum is an advisory body to the
Economic and Social Council (ECOSOC) with a mandate to discuss Indigenous issues
relating to economic and social development, culture, the environment,
education, health and human
rights.[260] Its role is to
provide advice and recommendations on these issues to ECOSOC and other UN
agencies and programmes through ECOSOC.
The Permanent Forum has a program of work where every second year is devoted
to a particular theme and the alternating year is a review year. The tenth
session was a review year of previous
recommendations.[261]
In May 2011, a delegation of Aboriginal and Torres Strait Islander peoples
attended the tenth session of the Permanent Forum. A majority of the delegation
attended as part of the Indigenous Peoples Organisation (IPO) Network of
Australia. The delegation made a number of statements relevant to issues of
native title and our rights to our lands, territories and
resources.[262]
(i) Environment
The IPO Network presented a statement on the environment covering four
critical issues that require attention in Australia: forests, climate change,
mining, and transportation and storage of toxic waste. In particular the
statement focused on the need for governments to adopt new processes of
consultation with Indigenous peoples based on collaboration and
participation.[263]
The Permanent Forum made a number of recommendations to States under this
agenda item concerning our rights to our lands, territories and waters including
that:
- States should recognise Indigenous peoples’ rights to forests and
should review and amend laws that are not consistent with the Declaration and
other international
standards.[264] - States should develop mechanisms to ‘promote the participation of
indigenous peoples in all aspects of the international dialogue on climate
change’.[265] - States should adopt a human rights-based approach to the rights of
Indigenous peoples.[266] - Best practices of the application of the right of free, prior and informed
consent regarding corporations and Indigenous peoples be documented and
shared.[267]
(ii) Water
Recommendations from the IPO Network’s statement on water were adopted
in the Final Report of the Permanent Forum’s tenth
session.[268] In particular the
Permanent Forum urged:
- States to ‘recognise and protect’ Indigenous peoples’
cultural right to water and, through legislation and policy, to support the
right of Indigenous peoples ‘to hunt and gather food resources from waters
used for cultural, economic and commercial purposes’, consistent with
article 25 of the
Declaration.[269] - States should include Indigenous peoples in ‘decision-making processes
in all areas of water management, including commercial use, irrigation and
environmental management’, consistent with the principles of the
Declaration.[270]
In
addition to reflecting the IPO Network’s recommendations, the Permanent
Forum also urged States to:
- Guarantee Indigenous peoples’ distinct rights to water, including the
right to access to safe, clean, accessible and affordable water for personal,
domestic and community
use.[271]
(iii) Implementation of the Declaration
Recommendations from the Australian Human Rights Commission’s statement
on ‘Implementing the Declaration’ were also reflected in the Final
Report. This included a recommendation for the Permanent Forum to explore
options for collaboration with the Expert Mechanism and Special Rapporteur on
the rights of indigenous peoples to develop guidelines on the implementation of
free, prior and informed
consent.[272] It was also a
recommendation from the Commission that States should establish national
initiatives and programs to implement the Declaration with ‘clear
timelines and
priorities’.[273]
Finally, the Permanent Forum recommended that States ‘systematically
monitor, evaluate, assess and report on how free, prior and informed consent has
or has not been recognised and applied with respect to the lands, territories
and resources of the Indigenous peoples
concerned’.[274]
Giving full effect to the principles of the Declaration, in particular free,
prior and informed consent, is important to ensure that Governments do more than
just ‘consult’ with us or only provide information when making
decisions that affect our rights to our lands, territories and resources.
(iv) Progressing the recommendations from the
Permanent Forum
I urge the Australian Government to formally respond to, and implement, the
recommendations made by the Permanent Forum for action by States. It would be a
sign of good faith, and a demonstration of the Government’s determination
to improve the protection of our rights in Australia, for the Australian
Government to report its progress towards implementing these recommendations at
the eleventh session of the Permanent Forum in 2012.
(c) Australia’s appearance at the
Universal Period Review
Australia appeared before the United Nations Human Rights Council’s
Working Group on the Universal Periodic Review (UPR) on 27 January 2011. The UPR
process involves a review of the human rights records of all 192 Member States
once every four years. The aim of the review is to improve the human rights
situation in all
countries.[275]
Participating countries made 145 recommendations to the Australian
Government.[276] Thirty of the
145 recommendations for Australia to improve its human rights record referred
directly to Aboriginal and Torres Strait Islander peoples. Many other
recommendations will also impact on Aboriginal and Torres Strait Islander
peoples.[277]
Many of these recommendations will impact on our rights to our lands,
territories and resources, such as those that relate to our ability to
participate in decision-making that affects our rights. However there was one
recommendation that related specifically to the native title system. The United
Kingdom recommended that the Australian Government:
Reform the Native Title Act 1993, amending strict requirements which can
prevent the Aboriginal and Torres Strait Islander peoples from exercising the
right to access and control their traditional lands and take part in cultural
life. [278]
On 8 June 2011 Australia formally responded to these recommendations and
accepted, at least in part, 90 per cent of the
recommendations.[279] In
particular, Recommendation 102 outlined above, was accepted-in-part. The
Government said:
The Australian Government continually reviews the operation of the native
title system through practical, considered and targeted reforms. Legislation
provides for Indigenous Australians to access, and to perform cultural
activities on, their traditional lands through statutory regimes and cultural
heritage laws.[280]
The Government has made the commitment that the UPR recommendations accepted
by the Government will inform the development of an updated National Human
Rights Action Plan.[281] In
responding to this recommendation, the Government should consider commissioning
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, as part of its National Human Rights
Action Plan.
(d) Australia’s appearance before
the Committee on the Elimination of Racial Discrimination
The Australian Government appeared before the Committee on the Elimination of
Racial Discrimination (CERD) on 10 and 11 August
2010.[282] The Australian Human
Rights Commission made a submission for CERD’s consideration when
assessing Australia’s compliance with the articles under the International Convention on the Elimination of All Forms of Racial
Discrimination.[283] The
submission noted a number of concerns regarding our rights to our lands,
territories and resources, including:
-
the compulsory acquisition of land under the Northern Territory Emergency
Response (NTER) -
the practical limitations on the reinstatement the RDA under the
NTER[284] -
limitations of the Native Title Act including the burden of
proof.[285]
In its
concluding observations, CERD expressed ongoing concern, and made a number of
recommendations, specifically relating to our rights to our lands, territories
and resources.
(i) Corporate social responsibility
In noting its concern with regard to extractive industries, the Committee
encouraged the Australian Government to
take appropriate legislative or administrative measures to prevent acts of
Australian corporations which negatively impact on the enjoyment of rights of
indigenous peoples domestically and overseas and to regulate the
extra-territorial activities of Australian corporations abroad. The Committee
also encourages the State party to fulfil its commitments under the different
international initiatives it supports to advance responsible corporate
citizenship.[286]
(ii) Northern Territory Emergency Response
CERD also expressed concern that the package of legislation under the NTER
continues to discriminate on the basis of race. It recommended that the
Australian Government:
guarantee that all special measures in Australian law, in particular those
regarding the NTER, are in accordance with the Committee’s general
recommendation No. 32 (2009) on the meaning and scope of special measures. It
encourages the State party to strengthen its efforts to implement the NTER
Review Board
recommendations...[287]
In addition CERD requested that Australia provide information to the
Committee on its progress against this recommendation within a
year.[288] At the time of writing
the Government was in the process of consulting stakeholders on its draft
response to CERD.
(iii) Native Title Act
Finally the Committee reiterated its concerns regarding the Native Title Act
and its amendments, and the persisting high standard of proof required for
recognition of the relationship between Indigenous peoples and their traditional
lands. It recommended that Australia
provide more information on this issue, and take the necessary measures to
review the requirement of such a high standard of proof. The Committee is
interested in receiving data on the extent to which the legislative reforms to
the Native Title Act in 2009 will achieve “better native title claim
settlements in a timely manner”. It also recommends that the State party
enhance adequate mechanisms for effective consultation with indigenous peoples
around all policies affecting their lives and
resources.[289]
The Committee also drew attention to this particular recommendation and
requested that Australia provide detailed information on concrete measures to
implement the recommendation in its next periodic
report.[290] Australia is required
to submit its next periodic reports on 30 October 2012 and address all points
raised in the concluding
observations.[291]
Limitations of the Native Title Act, such as the onerous burden of proof, may
be addressed by Senator Siewert’s Native Title Amendment (Reform) Bill
2011 discussed above.
Regardless of the outcome, I will continue to advocate an equitable and just
native title system and monitor the Government’s progress against this
concluding observation.
1.6 Reviewing the recommendations from theNative Title Report 2010
(a) An annual ‘Report
Card’
This is my second Native Title Report. I launched my first report, the Native Title Report 2010, in February 2011. These reports are produced
each year in accordance with the requirement under the Native Title Act for me
to report annually on the impact of the Native Title Act on the exercise and
enjoyment of the human rights of Aboriginal and Torres Strait Islander
peoples.[292]
In doing so I recommend action
that the Australian Government can take to ensure that our rights, as
affirmed by the Declaration, are fully respected in laws and policies that
affect our lands, territories and
resources.[293]
In my first Native Title Report I also outlined that I will ‘monitor
and report on the Government’s progress in implementing these
recommendations’.[294] In
this section I conduct my first review of the Australian Government’s
progress against implementing the recommendations I make in my annual reports.
This ‘Report Card’ will be a feature in each of the
‘year-in-review’ chapters in the remaining Native Title Reports of
my term.
This reporting of the Government’s progress is informed by monitoring
developments throughout the year, consultation with stakeholders and discussions
with the Government. In preparation for this year’s Report I also wrote to
the Attorney-General for a formal response on the Government’s progress.
Unfortunately the Government did not provide a formal response in relation to
progress against each of the recommendations but did provide ‘information
about Government actions that are progressing a number of the
recommendations’.[295]
The Special Rapporteur on the rights of indigenous peoples (Special
Rapporteur) has recommended that the reports of the Social Justice Commissioner
‘should be given greater attention in government administration to promote
a higher level of accountability and sensitivity to human rights
commitments’.[296] It is
disappointing that such accountability has not been provided against all
recommendations from the Native Title Report 2010. However I will
continue to engage in a dialogue with the Attorney to progress these important
reforms.
(b) The Australian Government’s
Report Card
Last year’s Native Title Report examined two ways that governments can
rebuild relationships with Aboriginal and Torres Strait Islander peoples,
particularly, by improving agreement-making processes; and through meaningful
and effective consultation and engagement. The 15 recommendations aimed to
address these areas as well as progressing the implementation of the
Declaration.
I am disappointed that many of these recommendations have not been
progressed. However the Government has reported that it is
undertaking a range of actions that progress its vision for the native title
system and also progress recommendations from the Native Title Report 2010. The
key focus of the Government’s strategic approach to native title is to
significantly increase claim resolution, streamline the claim and
agreement-making process, and promote sustainable native title agreements which
provide long term economic development opportunities for current and future
generations instead of litigation wherever
possible.[297]
I have attached the recommendations from the Native Title Report 2010 at Appendix 3.
(i) Chapter 1: Working together in a
‘spirit of partnership and mutual respect’: My native title
priorities
Implementing the Declaration
In Chapter 1 of the Native Title Report 2010 I recommended that the
Australian Government work in partnership with Aboriginal and Torres Strait
Islander peoples to develop a national strategy for the implementation of the
Declaration.[298]
In 2011 the Permanent Forum on Indigenous Issues also called on
States, in conjunction with indigenous peoples, to establish national
initiatives, programmes and plans of work to implement the Declaration with
clear timelines and priorities. States and indigenous peoples should report
regularly to their national legislative bodies and to the Forum on the progress
and shortcomings in implementing the
Declaration.[299]
I continue to advocate this initiative with Government, however a commitment
by Government has not been made. I am concerned that the Government continues to
view the Declaration as non-binding and considers that it does not affect
Australian law but contains principles to which the Government should
aspire. [300] The Declaration
should be seen as reflecting how the human rights standards Australia has
committed to in international treaties apply to the particular situation of
Aboriginal and Torres Strait Islander peoples. It is also a concern that the
Government is of the view that Australia’s Indigenous policies are
consistent with the spirit of the
Declaration[301] even though, as I
have argued in this Chapter, this does not appear to be the case.
I encourage the Government to commit in good faith to developing a strategy
in partnership with Aboriginal and Torres Strait Islander peoples to ensure the
principles of the Declaration are given full effect.
Utilising the Native Title Report
I also made recommendations about how the Native Title Report can be given
greater attention. This includes amending the Native Title Act to require the
Attorney-General to table the Native Title Report within a set timeframe and
also require the Attorney-General to provide a formal response to both the
Native Title and Social Justice
Reports.[302]
The Attorney-General has always tabled the Native Title Report with the
Social Justice Report as a matter of courtesy. I appreciate this continued
practice. However there is no legislative requirement for the Attorney to do so.
Since the launch of last year’s Report no legislative commitment to table
the Report has been made.
As in previous years, this year I again asked the Attorney-General for a
response to the recommendations in the Native Title Report. Unfortunately
communications with the Attorney-General have not been provided as a formal
response.
(ii) Chapter 2: ‘The basis for a
strengthened partnership’: Reforms related to agreement-making
Reviewing the Native Title Act
In Chapter 2 I recommended the Australian Government commission an
independent inquiry to review the operation of the native title system with a
view to aligning it with international human rights
standards.[303] The Government has
not made this commitment. I continue to advocate this recommendation as I
believe it to be fundamental to achieving land justice for Aboriginal and Torres
Strait Islander peoples. As I discuss above at section 1.5(c), this review could
form part of the Government’s National Human Rights Action Plan.
Finalising the Native Title National Partnership Agreement
Last year I recommended that the Australian Government make every endeavour
to finalise the Native Title National Partnership Agreement
(NTNPA).[304]
The Australian Government’s Strategic Review of Indigenous
Expenditure, which was released under Freedom of Information laws,
also endorsed moves towards the NTNPA with its emphasis on negotiated
settlements and ILUAs.[305] However the Government is yet to announce steps to finalise the NTNPA.
Reforming good faith requirements
I also recommended that the Australian Government pursue reforms to clarify
and strengthen the requirements for good faith
negotiations.[306]
On 3 July 2010 the Australian Government released the Leading practice
agreements: maximising outcomes from native title benefits discussion paper
which outlined ‘possible reforms to the native title agreement
process’.[307] In the
discussion paper the Government stated that it has
... decided to amend the Act to provide clarification for parties on what
negotiation in good faith entails and to encourage parties to engage in
meaningful discussions about future acts under the right to negotiation
provisions.[308]
Public consultations were held in July and October 2010 and submissions for
the review closed on 30 November 2010. The Government has advised me that it is
currently considering the 29 written submissions it
received.[309]
I am pleased to see the Australian Government reviewing the good faith
requirements. I will monitor the outcome of this process.
Improvements to the Native Title Amendment Act (No 1) 2010 (Cth)
I made a number of recommendations to improve the amendments to the Native
Title Act under the Native Title Amendment Act (No 1) 2010 (Cth).[310] These included
options for streamlining agreement-making processes, encouraging a commitment to
only use the new future act process as a last resort and the establishment of
consultation requirements.
I discuss these recommendations above in section 1.2(e).
The sustainability of native title agreements
In response to the Leading Practice Agreements discussion paper I
recommended that before introducing reforms to ensure the
‘sustainability’ of native title agreements, the Australian
Government should consult and cooperate in good faith in order to obtain the
free, prior and informed consent of Aboriginal and Torres Strait Islander
peoples. I also recommended that such reforms should have an evidence-based
justification.[311]
The Government has advised that it is currently considering submissions to
the Leading Practice Agreements discussion
paper.[312] I urge the
Government to consider these recommendations prior to making a decision on these
reforms.
Finally I recommended that the Australian Government ensure NTRBs, NTSPs,
PBCs and other Traditional Owner groups have access to sufficient resources to
enable them to participate effectively in negotiations and agreement-making
processes.[313]
The Government has reported an increase in NTRB funding in 2009 by $62
million over four years[314] and
an overall increase in PBC basic support from $1,479,300 in 2010-11 to
$1,640,631 in 2011-12.[315] However individual bodies may receive more or less than the previous year. The
Government also reports an increase in funding for NTRB capacity building
programs from $3,378,145 in 2010-11 to $3,655,308 in
2011-12.[316]
I welcome increases to funding of native title bodies. However, I am still
hearing that these groups are under resourced. This is particularly problematic
as we are moving into a post-determination stage of the native title
system.[317]
I encourage the Government to continue discussions with these organisations
to ensure gaps are identified and organisations are funded appropriately.
(iii) Chapter 3: Consultation, cooperation, and
free, prior and informed consent: The elements of meaningful and effective
engagement
Improving consultation processes
In Chapter 3 I outlined a number of recommendations to improve the
Government’s approach to consultation with Aboriginal and Torres Strait
Islander peoples.
The first recommendation was that any consultation document regarding a
proposed legislative or policy measure that may affect the rights of Aboriginal
and Torres Strait Islander peoples, should contain a statement that details
whether the proposed measure is consistent with international human rights
standards.[318]
The Attorney-General has advised me that the Government will ‘only
undertake significant amendments to the Act after careful consideration and full
consultation with affected parties to ensure that amendments do not unduly or
substantially affect the balance of rights under the
Act’.[319] However no
commitment has been made to include a specific statement in consultation
documents.
The Government should give this further consideration as it considers its
proposed Bill for improved scrutiny of legislation for compatibility with
international human rights obligations under the National Human Rights
Framework.[320]
I also recommended that the Australian Government undertake all necessary
consultation and consent processes required for the development and
implementation of a special
measure.[321]
In the recently released Stronger Futures in the Northern Territory Discussion Paper concerning the future of the NTER, the Australian
Government said ‘[a]ll future actions taken by the Government will comply
with the Racial Discrimination Act, either because they are non-discriminatory,
or because they are special
measures’.[322] I will
continue to monitor the Government’s consultation processes in the
Northern Territory to assess whether they meet the standard required for the
implementation of a special measure under the RDA and ICERD.
The final recommendation regarding improving consultation processes was for
the Australian Government to ‘work with Aboriginal and Torres Strait
Islander peoples to develop a consultation and engagement framework that is
consistent with the minimum standards affirmed in the United Nations
Declaration on the Rights of Indigenous
Peoples’.[323]
There is a clear policy commitment across all governments in Australia to
engage with Aboriginal and Torres Strait Islander peoples. The Council of
Australian Governments’ (COAG) National Indigenous Reform Agreement (NIRA) is the benchmark agreement for Indigenous policy activity in Australia
and includes an Indigenous Engagement
Principle.[324]
The Australian Government has also developed Engaging Today, Building
Tomorrow – A framework for engaging with Aboriginal and Torres Strait
Islander Australians (the Framework). The Framework has been designed
to improve how Australian Public Service (APS) agencies ‘engage with
Aboriginal and Torres Strait Islander peoples on issues that affect
them’.[325]
The Government has advised that Aboriginal and Torres Strait Islander peoples
were involved in the development of the Framework. Input and advice were
received through a Reference Group of Aboriginal and Torres Strait Islander
government non-government representatives, as well as through engagement
workshops held in regional South Australia and
Queensland.[326]
More than 2,000 copies of the Framework have been distributed across APS
agencies since its release in National Reconciliation Week
2011.[327]
The Framework states that it is consistent with the principles of the
Declaration.[328] While this
statement is commendable it remains to be seen whether compliance with the
Framework by APS agencies will result in the full participation of Aboriginal
and Torres Strait Islander peoples in decision-making that affects their rights.
As the Government has said, the Framework is not prescriptive or mandatory in
its application. Instead ‘it encourages reflection on current practice
across a broad range of mainstream and Indigenous business within
agencies’.[329]
It is disappointing that compliance with the Framework is not mandatory.
Given this, a reference within the Framework stating it is consistent with the
Declaration rings hollow. Without implementation across the APS, the Framework
has the potential to become more words we have heard before. I applaud the
Government’s attempts to improve engagement with Aboriginal and Torres
Strait Islander peoples, however I encourage it to make compliance with the
Framework mandatory across the APS.
Further, to demonstrate its commitment to the Declaration I recommend that
the Government develop a ‘Statement or Charter of Engagement’ to
complement the Framework. This document should include the Government’s
commitment to be guided by the principles of the Declaration when engaging with
Aboriginal and Torres Strait Islander peoples, including the right to
participate in decision-making, and the principle of free, prior and informed
consent. This Government commitment is particularly important if the Framework
does not become mandatory.
Ensuring free, prior and informed consent under the NTER
Finally I recommended that the power to compulsorily acquire any further
five-year leases under the NTER be removed and that the Government implement its
commitment to transition to voluntary leases with affected Indigenous peoples.
In doing so the Government should ensure that existing leases are subject to the
RDA.[330]
The Australian Government has confirmed that ‘[a]ll five-year leases
will end in August 2012, to be replaced as soon as possible with voluntary
arrangements’.[331] I
welcome this commitment. In doing so I reiterate the concerns of APONT:
The Commonwealth Government must act decisively to re-set the relationship
with Aboriginal people by working with the NT land councils to transition
smoothly out of the five-year leases into voluntary leasing arrangements over
communities.[332]
However, while the existing five-year leases will expire in August 2012, the
sunset provision in section 6 of the NTNER Act does not apply to Part 4 of the
NTNER Act (the five-year leasing
provisions).[333] Part 4 contains
the provisions relating to the acquisition of rights, titles and interests in
land, including the five-year lease provisions.
I encourage the Government to take appropriate action to remove the five-year
lease provisions under the NTNER Act and to work with the Northern Territory
land councils to transition to voluntary leases.
1.7 Assessing the Reporting Period
In all, the Reporting Period has been a mixed bag for our communities trying
to navigate the native title system. I have seen positive statements at the
international level about the strength of our rights to our lands, territories
and resources. For example, at its tenth session the Permanent Forum said it
emphatically rejects any attempt to undermine the right of indigenous peoples
to free, prior and informed consent. Furthermore, the Forum affirms that the
right of indigenous peoples to such consent can never be replaced by or
undermined through the notion of
“consultation”.[334]
However this hasn’t yet translated to a practical effect for Aboriginal
and Torres Strait Islander peoples in Australia. As I discussed in this Chapter,
the introduction of the new future act process under section 24JAA of the Native
Title Act is an active move away from the Government trying to obtain the free,
prior and informed consent to decisions that affect us.
This is not heartening news for the campaign to have governments work with us
on a national strategy to give full effect to the principles of the Declaration.
In last year’s report I outlined my priorities for my tenure as Social
Justice Commissioner. My overarching priority is to advance the implementation
of the Declaration in laws, policies and programs.
While the Government has not committed to a national implementation strategy
I am pleased to see the language of the Declaration is also being used by others
in the native title sphere. For example, in his first reading for his private
Member’s Bill, Wild Rivers (Environmental Management) Bill 2011,
Opposition Leader the Hon Tony Abbott said:
I should also remind the parliament of the United Nations Declaration on the
Rights of Indigenous Peoples, to which the government subscribed in April last
year, which provides for, amongst other things, the right of Indigenous peoples
to own, use, develop and control their
lands.[335]
Similarly the Reform Bill introduced by Senator Siewert proposes to insert a
new object clause that would require governments to ‘take all necessary
steps’ to implement specific articles of the Declaration. It would also
require the provisions of the Native Title Act to be interpreted in a manner
consistent with the
Declaration.[336]
There have also been other positive measures from the Government –
concerted efforts to ensure full participation by Aboriginal and Torres Strait
Islander peoples in the CFI, a commitment to strengthen good faith requirements
under the right to negotiate provisions of the Native Title Act and moves to
address the uncertainty and complexity of the income tax system as it applies in
the native title context.
So, are we there yet? Are we able to fully participate in all decisions that
affect us? Do we have a fair and just native title system? The answer, clearly,
is no.
But I have hope.
Senator Siewert’s Reform Bill is an example of the legislative efforts
needed to address some of the core obstacles to us being able to fully exercise
and enjoy our rights to our lands, territories and resources.
But we need more than legislative change. We need a cultural change.
Throughout my term I will continue to advocate for a system that allows us to
fully realise our rights as set out in the Declaration and I will continue to
use the Native Title Report as a tool to monitor and assess developments that
impact on our rights.
1.8 Recommendations
| Recommendations |
|
[1] United Nations Declaration
on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc
A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 12 July 2011).
[2] M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2010, Australian Human Rights Commission (2011), pp 3-8. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[3] Native Title Act 1993 (Cth), s
209.
[4] Native Title Amendment
(Reform) Bill 2011.
[5] Carbon
Credits (Carbon Farming Initiative) Bill
2011.
[6] Native Title Amendment
Act (No 1) 2010 (Cth), Native Title Amendment Act 2009 (Cth).
[7] 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).
[8] 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).
[9] 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).
[10] 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).
[11] 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).
[12] Explanatory Memorandum, Native Title Amendment (Reform) Bill 2011 (Cth), p
2.
[13] For a discussion of these
proposals, see 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).
[14] Native Title Amendment (Reform) Bill 2011 (Cth), sch 1, item 1, proposed s
3A.
[15] Native Title Amendment
(Reform) Bill 2011 (Cth), sch 1, item 3, proposed ss 24MD(2)(bb), (c).
[16] Native Title Amendment
(Reform) Bill 2011 (Cth), sch 1, item 11, proposed s
47C.
[17] Native Title Amendment
(Reform) Bill 2011 (Cth), sch 1, item
4.
[18] Native Title Amendment
(Reform) Bill 2011 (Cth), sch 1, items 5-9, proposed ss 31(1)(b), 31(1)(1A),
31(2A), 35(1A).
[19] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 12, proposed ss 61AA,
61AB.
[20] Native Title Amendment
(Reform) Bill 2011 (Cth), sch 1, item 13, proposed ss
223(1A)−(1D).
[21] Native
Title Amendment (Reform) Bill 2011 (Cth), sch 1, item 14, proposed s
223(2).
[22] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 14, proposed s
223(2).
[23] [2010] FCA 643 (2
July 2010).
[24] [2010] FCA 643
(2 July 2010), 752−757. This decision has been appealed and judgment
reserved: Commonwealth of Australia v Leo Akiba & George Mye on behalf of
the Torres Strait Regional Seas Claim & Ors: Full Federal Court
QUD387/2010.
[25] United
Nations Declaration on the Rights of Indigenous Peoples, GA Resolution
61/295 (Annex), UN Doc A/RES/61/295 (2007), art 3. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 29 August 2011). Indigenous peoples also have the right to
‘determine and develop priorities and strategies for exercising their
right to development’: art
32.
[26] The Senate
Committee’s Report is due 3 November
2011.
[27] Department of Climate
Change and Energy Efficiency, Enabling Indigenous participation in the Carbon
Farming Initiative, http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[28] The CFI Bill passed the Senate on 22 August and passed the House of
Representatives on 23 August 2011.
[29] I note the CFI Act came
into being outside the Reporting Period, however the process leading to the CFI
Act occurred throughout the Reporting
Period.
[30] Replacement
Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative) Bill 2011
(Cth), pp 8−9.
[31] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), pp
8−9.
[32] Note: the CFI
Bill was jointly referred with the Australian National Registry of Emissions
Units Bill 2011 and the Carbon Credits (Consequential Amendments) Bill
2011.
[33] Note: the CFI Bill was
jointly referred with the Australian National Registry of Emissions Units Bill
2011 and the Carbon Credits (Consequential Amendments) Bill
2011.
[34] Minister for Climate
Change and Energy Efficiency, ‘Carbon farming brings fields of opportunity
for regional Australia’ (Media Release, 23 August 2011). At http://www.climatechange.gov.au/en/minister/greg-combet/2011/media-releases/August/mr20110823.aspx (viewed 29 August 2011).
[35] Minister for Climate Change and Energy Efficiency, ‘Carbon farming brings
fields of opportunity for regional Australia’ (Media Release, 23 August
2011). At http://www.climatechange.gov.au/en/minister/greg-combet/2011/media-releases/August/mr20110823.aspx (viewed 29 August 2011).
[36] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), p 3.
[37] Australian Government, Carbon Farming Initiative Consultation Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 2. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[38] Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 2. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[39] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), p 5.
[40] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), p 5.
[41] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), p 5.
[42] Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), ss 5,
53−56.
[43] Replacement
Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative) Bill 2011
(Cth), p 37.
[44] Replacement
Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative) Bill 2011
(Cth), paras 1.8−1.55. Carbon Credits (Carbon Farming Initiative) Act
2011 (Cth),
ss 53−56.
[45] Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 2. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[46] Department of Climate Change and Energy Efficiency, Offset methodologies, http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/methodology-development.aspx (viewed 3 September 2011).
[47] Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 2. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011). The list of methodologies currently being considered by
the Domestic Offsets Integrity Committee is available at http://www.climatechange.gov.au/en/government/initiatives/carbon-farming-initative/methodology-development/methodologies-under-consideration.aspx (viewed 12 October 2011).
[48] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), p 7.
[49] Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), s
41(3).
[50] Australian
Government, Carbon Farming Initiative Discussion Paper Enabling Indigenous
participation: native title and land rights land issues (July 2011), p 3. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[51] Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 3. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[52] This text box contains extracts from the case study in T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Human Rights and Equal Opportunity Commission (2008), ch 12. At http://www.humanrights.gov.au/social_justice/nt_report/index.html#2007 (viewed 14 September 2011).
[53] These include Adjumarllarl Rangers, Djelk Rangers, Jawoyn Rangers, Jawoyn
Association, Manwurrk Rangers, Mimal
Ranges.
[54] Tropical Savannas
CRC, The West Arnhem Land Fire Abatement Project (WALFA), http://www.savanna.org.au/savanna_web/information/arnhem_fire_project.html (viewed 14 September 2011).
[55] The Domestic Offsets Integrity Committee has considered the use of controlled
fire management across savannas in the fire prone tropical north of Australia
for eligibility under the CFI Bill, see http://www.climatechange.gov.au/en/government/initiatives/carbon-farming-initative/methodology-development/methodologies-under-consideration/savanna-burning.aspx (viewed 12 October 2011).
[56] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), para 4.10.
[57] Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), s
5.
[58] Australian Government, Carbon Farming Initiative Discussion Paper Enabling Indigenous participation:
native title and land rights land issues (July 2011), p 4. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[59] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), para 4.10.
[60] The CFI Act defines native title land according to entries on the National
Native Title Register. Native title and native title holder have the same
meaning as in the Native Title Act 1993: Carbon Credits (Carbon Farming
Initiative) Act 2011 (Cth),
s 5.
[61] Carbon Credits
(Carbon Farming Initiative) Act 2011 (Cth), ss 43(9), 43(10), 46. Also see
Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 4. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011). Also see Replacement Explanatory Memorandum, Carbon
Credits (Carbon Farming Initiative) Bill 2011 (Cth), paras
4.20−4.21.
[62] Carbon
Credits (Carbon Farming Initiative) Act 2011 (Cth), ss 45(2), 46.
See also Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative) Bill
2011 (Cth), para 4.24.
[63] Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative) Bill 2011
(Cth), para 4.28.
[64] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), para 4.28.
[65] Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 6. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[66] Australian Government, Carbon Farming Initiative Discussion Paper Enabling
Indigenous participation: native title and land rights land issues (July
2011), p 4. At http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011). Also see Carbon Credits (Carbon Farming Initiative)
Act 2011 (Cth), s 43(9).
[67] Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth),
s 27(4)(k).
[68] Carbon
Credits (Carbon Farming Initiative) Act 2011 (Cth),
s 45A.
[69] Note also that,
in the case of non-exclusive native title, the Crown lands Minister of the State
or Territory also holds an eligible interest and their consent to a
sequestration project is required: Carbon Credits (Carbon Farming
Initiative) Act 2011 (Cth), ss 45(2), 27(4)(k).
[70] Carbon Credits (Carbon
Farming Initiative) Act 2011 (Cth),
s 27(19).
[71] Replacement
Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative) Bill 2011
(Cth), para 4.42. I note that outside the Reporting Period the Australian Greens
moved an amendment (which passed in the final version) to the CFI Bill which
would require determined native title holders to consent to ‘carbon
sequestration’ projects on native title land. This was not included in the
original Bill. This allowed non-exclusive native title holders can also
participate in the scheme.
[72] National Native Title Council, Submission to the Senate Standing Committees
on Environment and Communications Inquiry into the Carbon Credits (Carbon
Farming Initiative) Bill 2011 (Cth) and other bills (11 April 2011), para
28. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/submissions.htm (viewed 29 August 2011). Also see para
9.
[73] Other stakeholders also
raised these concerns, see: Senate Environment and Communications Legislation
Committee, Parliament of Australia, Report of inquiry into Carbon Credits
(Carbon Farming Initiative) Bill 2011 [Provisions] and other bills (2011),
paras 4.2−4.14. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/report/index.htm (viewed 29 August 2011).
[74] National Native Title Council, Submission to the Senate Standing Committees
on Environment and Communications Inquiry into the Carbon Credits (Carbon
Farming Initiative) Bill 2011 (Cth) and other bills (11 April 2011), para
11. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/submissions.htm (viewed 29 August 2011).
[75] Senate Environment and Communications Legislation Committee, Parliament of
Australia, Report of inquiry into Carbon Credits (Carbon Farming Initiative)
Bill 2011 [Provisions] and other bills (2011), para 4.13. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/report/index.htm (viewed 29 August 2011).
[76] Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), s
45A.
[77] National Native Title
Council, Submission to the Senate Standing Committees on Environment and
Communications Inquiry into the Carbon Credits (Carbon Farming Initiative) Bill
2011 (Cth) and other bills (11 April 2011), para 10. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/submissions.htm (viewed 29 August 2011).
[78] National Native Title Council, Submission to the Senate Standing Committees
on Environment and Communications Inquiry into the Carbon Credits (Carbon
Farming Initiative) Bill 2011 (Cth) and other bills (11 April 2011), para
10. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/submissions.htm (viewed 29 August 2011).
[79] Senate Environment and Communications Legislation Committee, Parliament of
Australia, Report of inquiry into Carbon Credits (Carbon Farming Initiative)
Bill 2011 [Provisions] and other bills (2011), rec 7. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/report/index.htm (viewed 29 August 2011).
[80] Australian Government, Government Response to the Senate Environment and
Communications Legislation Committee inquiry on the: Carbon Credits (Carbon
Farming Initiative) Bill 2011 [Provisions]; Carbon Credits (Consequential
Amendments) Bill 2011 [Provisions]; Australian National Registry of Emissions
Units Bill 2011 [Provisions] (2011), p 5. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/index.htm (viewed 29 August 2011).
[81] Department of Climate Change and Energy Efficiency, Enabling Indigenous
participation in the Carbon Farming Initiative, http://www.climatechange.gov.au/government/initiatives/carbon-farming-initative/enabling-indigenous-participation.aspx (viewed 29 August 2011).
[82] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), para 4.51.
[83] Replacement Explanatory Memorandum, Carbon Credits (Carbon Farming Initiative)
Bill 2011 (Cth), para 4.6. This is consistent with the recommendation from the Native Title Report 2008 for Government departments to explore how native
title and land rights can help facilitate opportunities arising from climate
change and carbon markets: T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2008, Australian Human
Rights Commission (2009), p 167. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed 21 September 2011).
[84] Minister for Climate Change and Energy Efficiency, ‘Clean energy programs
for Indigenous Australians’ (Media Release, 10 July 2011). At http://www.climatechange.gov.au/minister/greg-combet/2011/media-releases/July/mr20110710lf.aspx (viewed 24 August 2011).
[85] Commonwealth, Official Committee Hansard: Reference: Australian National
Registry of Emissions Units Bill 2011; Carbon Credits (Carbon Farming
Initiative) Bill 2011; Carbon Credits (Consequential Amendments) Bill 2011, Senate Environment and Communications Legislation Committee (20 April 2011),
p 45 (P Agius, National Native Title Council). At http://www.aph.gov.au/hansard/senate/commttee/committee_transcript.asp?MODE=YEAR&ID=186&YEAR=2011 (viewed 12 September 2011); Centrefarm Aboriginal Horticulture Limited, Submission Senate Standing Committee on Environment and Communications
Inquiry into Carbon Credits (Carbon Farming Initiative) Bill 2011; Carbon
Credits (Consequential Amendments) Bill 2011 and Australian National Registry of
Emissions Units Bill 2011 (15 April 2011), p 3. At http://www.aph.gov.au/senate/committee/ec_ctte/carbon_farming/submissions.htm (viewed 12 September 2011).
[86] Commonwealth, Parliamentary Debates, House of Representatives, 19 March
2009, p 3248 (The Hon R McClelland MP, Attorney-General). At http://www.aph.gov.au/hansard/reps/dailys/dr190309.pdf (viewed 19 September 2011).
[87] For last year’s discussion, see: M Gooda, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), pp 31−35. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 25 September 2011).
[88] Native Title Act 1993 (Cth), s
86B(1).
[89] Attorney-General’s Department, Native Title Amendment Act 2009:
Information Sheet (undated), p 1. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform (viewed
29 September 2010).
[90] Native Title Act 1993 (Cth), ss 87(8)–(11),
87A(9)–(12).
[91] Native
Title Act 1993 (Cth), s 214. For example, the Evidence Act 1995 (Cth)
(as amended by the Evidence Amendment Act 2008 (Cth)) now includes
exceptions to the hearsay rule regarding evidence of a representation about the
existence or non-existence, or the content, of the traditional laws and customs
of an Aboriginal or Torres Strait Islander group: Evidence Act 1995 (Cth), s 72. These amendments are reviewed in T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report
2008, Australian Human Rights Commission (2009), pp 19–20. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed
29 September 2010).
[92] Native Title Act 1993 (Cth), ss 87(4)–(7), 87A(5)–(7).
Regulations may specify the kinds of matters other than native title that an
order of the Federal Court under these provisions may give effect to:
ss 87(7), 87A(7).
[93] L
Anderson, Deputy Registrar, Federal Court of Australia, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 9 August
2011.
[94] L Anderson, Deputy
Registrar, Federal Court of Australia, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 9 August 2011.
[95] Federal Court of Australia, Native title list of mediators, http://www.fedcourt.gov.au/litigants/native/litigants_nt_mediator.html,
(viewed 25 July 2011)
[96] Federal Court of Australia, Native title list of mediators, http://www.fedcourt.gov.au/litigants/native/litigants_nt_mediator_list.html,
(viewed 25 July 2011)
[97] L
Anderson, Deputy Registrar, Federal Court of Australia, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 9 August
2011.
[98] L Anderson, Deputy
Registrar, Federal Court of Australia, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 9 August 2011.
[99] The Federal Court’s list of priority native title cases can be found at: http://www.fedcourt.gov.au/litigants/native/litigants_nt_cases_current.html (viewed 25 September
2011).
[100] L Anderson, Deputy
Registrar, Federal Court of Australia, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 9 August
2011.
[101] L Anderson, Deputy
Registrar, Federal Court of Australia, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 9 August
2011.
[102] Native Title Act
1993 (Cth), ss 87(4)–(7), 87A(5)–(7). Regulations may specify
the kinds of matters other than native title that an order of the Federal Court
under these provisions may give effect to: ss 87(7),
87A(7).
[103] L Anderson,
Deputy Registrar, Federal Court of Australia, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 9 August
2011.
[104] Attorney-General,
‘Gunditjmara and Eastern Maar Peoples’ native title recognition in
Victoria’, (Media Release, 27 July 2011). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2011_ThirdQuarter_27July2011-GunditjmaraandEasternMaarPeoplesnativetitlerecognitioninVictoria (viewed 26 September
2011).
[105] R McClelland,
Attorney-General, Australian Government, Correspondence to M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 2 September
2011.
[106] G Neate, President,
National Native Title Tribunal, Correspondence to M Gooda, Aboriginal and Torres
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[121] Explanatory
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[127] Attorney-General’s Department and Department of Families, Housing,
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[137] Native Title Act 1993 (Cth), s
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[139] A revised Native Title (Notices) Determination 2011 (No 1) has been issued which
is the new instrument which determines how notice is to be given for the purpose
of various provisions of the Native Title Act 1993 (Cth) including s
24JAA(10). However this does not go to the consultation requirements referred to
in s24JAA(15).
[140] David
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[142] D Yarrow and C Marshall, Traditional Owner Settlement Bill 2010 (Vic) An
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[144] Explanatory Memorandum, Traditional Owner Settlement Bill 2010 (Vic), p
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[145] Explanatory
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[146] Explanatory
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[149] See M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p
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[150] R
McClelland, Attorney-General, Australian Government, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 2 September
2011.
[151] Native Title
Services Victoria, ‘Gunaikurnai people win respect and recognition in
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[152] Native Title Services Victoria, ‘Gunaikurnai people win respect and
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October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[153] Native Title Services Victoria, ‘Gunaikurnai people win respect and
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October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
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October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[155] Native Title Services Victoria, ‘Gunaikurnai people win respect and
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[156] Native Title Services Victoria, ‘Gunaikurnai people win respect and
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[157] Attorney-General, ‘Gunaikurnai native title recognition’ (Media
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[158] Native Title Services Victoria, ‘Gunaikurnai people win respect and
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[159] Attorney-General, ‘Gunaikurnai native title recognition’ (Media
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[163] Australian Government, Indigenous Economic Development Strategy: Draft for
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[169] Australian Human Rights Commission, Submission to the Minister for Families,
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[170] United Nations
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[171] United Nations Declaration on the Rights of Indigenous Peoples, GA
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31(1).
[172] United Nations
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[174] T
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[175] See: Australian
Human Rights Commission, Submission to the Minister for Families, Housing,
Community Services and Indigenous Affairs: Draft Indigenous Economic Development
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[176] Australian Government, Indigenous Economic Development Strategy: Draft for
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August 2011).
[177] See
Australian Human Rights Commission, Submission to the Minister for Families,
Housing, Community Services and Indigenous Affairs: Draft Indigenous Economic
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Social Justice Commissioner, Native Title Report 2009, Australian Human
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2011).
[178] Australian
Government, Strategic Review of Indigenous Expenditure (February 2010), p
289. At http://www.finance.gov.au/foi/disclosure-log/2011/docs/foi_10-27_strategic_review_indigenous_expenditure.pdf (viewed 4 September
2011).
[179] Native Title and
Leadership Branch, Department of Families, Housing, Community Services and
Indigenous Affairs, Email correspondence to Australian Human Rights Commission,
12 October 2011.
[180] Australian Government, Leading practice agreements: maximising outcomes from
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[182] Australian Government, Leading practice agreements: maximising outcomes from
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[188] Australian Government, Leading practice agreements: maximising outcomes from
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[189] Australian Human Rights Commission, Submission to the Attorney-General and
the Minister for Families, Housing, Community Services and Indigenous Affairs on
the Leading practice agreements: maximising outcomes from native title benefits
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[190] Australian Human Rights Commission, Submission to the Attorney-General and
the Minister for Families, Housing, Community Services and Indigenous Affairs on
the Leading practice agreements: maximising outcomes from native title benefits
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[191] Australian Human Rights Commission, Submission to the Attorney-General and
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the Leading practice agreements: maximising outcomes from native title benefits
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[192] For information on the Indigenous Community Governance Project, see
Reconciliation Australia, The Indigenous Community Governance Research
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[193] J Hunt & D Smith, Indigenous Community Governance Project: Year Two Research Findings,
Centre for Aboriginal Economic Policy Research, Working Paper No 36/2007 (2007),
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23 November 2010).
[194] Australian Human Rights Commission, Submission to the Attorney-General and
the Minister for Families, Housing, Community Services and Indigenous Affairs on
the Leading practice agreements: maximising outcomes from native title benefits
discussion paper (30 November 2010), para 28. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[195] For further discussion see: Australian Human Rights Commission, Submission to
the Attorney-General and the Minister for Families, Housing, Community Services
and Indigenous Affairs on the Leading practice agreements: maximising outcomes
from native title benefits discussion paper (30 November 2010), para 30. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[196] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 39. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 29 August 2011).
[197] Australian Government, Leading practice agreements: maximising outcomes from
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[198] Australian Government, Leading practice agreements: maximising outcomes from
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[199] Australian Human Rights Commission, Submission to the Attorney-General and
the Minister for Families, Housing, Community Services and Indigenous Affairs on
the Leading practice agreements: maximising outcomes from native title benefits
discussion paper (30 November 2010), para 34. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[200] See generally: Australian Human Rights Commission, Submission to the
Attorney-General and the Minister for Families, Housing, Community Services and
Indigenous Affairs on the Leading practice agreements: maximising outcomes from
native title benefits discussion paper (30 November 2010), paras
40−51. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[201] Minerals Council of Australia and National Native Title Council, Submission
in response to Government consultation on Indigenous Economic Development from
mining agreements (30 November 2010), p 23. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_Consultationonpossiblegovernanceandfutureactsreforms#submissions (viewed 21 September
2011).
[202] Australian Human
Rights Commission, Submission to the Attorney-General and the Minister for
Families, Housing, Community Services and Indigenous Affairs on the Leading
practice agreements: maximising outcomes from native title benefits discussion
paper (30 November 2010), paras 42−51. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[203] The pilot phase of the project has resulted in the development and launch of a
prototype version of a secure, online database, which contains over 100 mining
and exploration-related precedents. For information on the project, see J
Fardin, ‘NTRB Knowledge Management Pilot: Agreement Making’, Native Title Newsletter, No 5/2010 (September/October 2010), p 11. At http://www.aiatsis.gov.au/ntru/docs/publications/newsletter/SepOct10.pdf (viewed 23 November 2010). Also see Australian Human Rights
Commission, Submission to the Attorney-General and the Minister for Families,
Housing, Community Services and Indigenous Affairs on the Leading practice
agreements: maximising outcomes from native title benefits discussion paper (30 November 2010), para 46. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
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[205] Australian Human Rights Commission, Submission to the Attorney-General and
the Minister for Families, Housing, Community Services and Indigenous Affairs on
the Leading practice agreements: maximising outcomes from native title benefits
discussion paper (30 November 2010), rec 1. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[206] Australian Government, Native Title, Indigenous Economic Development and Tax (2010). At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
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[209] Australian Government, Native Title, Indigenous Economic Development and Tax (2010), pp 8−16. At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
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[211] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), para 10. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011). Also see Australian Human Rights Commission, Submission to the Australian Government’s Native Title Payments
discussion paper – Optimising Benefits from Native Title Agreements (4
March 2009), paras 199–205. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20090304_ntpayments.html (viewed 29 August 2011).
[212] Australian Government, Native Title, Indigenous Economic Development and Tax (2010), p 10. At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
[213] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), para 14. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011).
[214] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), paras 16−17. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011).
[215] Australian Government, Native Title, Indigenous Economic Development and Tax (2010), p 14. At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
[216] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), para 20. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011).
[217] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), para 20. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011).
[218] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), paras 21−27. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011).
[219] Australian Human Rights Commission, Submission to the Treasury on the Native
Title, Indigenous Economic Development and Tax consultation paper (30
November 2010), para 24. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_NativeTitle.html (viewed 29 August 2011).
[220] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 23. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 29 August 2011). Also see arts 3, 4, 20. Also see Declaration on the
Right to Development, GA Resolution 41/128 (Annex), UN Doc A/RES/41/128
(1986). At http://www.un.org/documents/ga/res/41/a41r128.htm (viewed 29 August 2011).
[221] R McClelland, Attorney-General, Australian Government, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 2 September
2011.
[222] P Anderson and R
Wild, Ampe Akelyernemane Meke Mekarle ‘Little Children are
Sacred’, Report of the Northern Territory Board of Inquiry into the
Protection of Aboriginal Children from Sexual Abuse (2007). At http://www.inquirysaac.nt.gov.au/ (viewed 21 September
2011).
[223] Families, Community Services and Indigenous
Affairs and Other Legislation Amendment (Northern Territory National Emergency
Response and Other Measures) Act 2007 (Cth), s 4; Northern Territory National Emergency Response
Act 2007 (Cth), s 132; Social Security and
Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), ss 4,
6. The original NTER legislation also exempted the operation of the Northern
Territory’s anti-discrimination laws: Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007 (Cth), s 5; Northern
Territory National Emergency Response Act 2007 (Cth), s 133; Social
Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), ss 5, 7. But see Northern Territory National Emergency Response
Act 2007 (Cth), Notes, Table A: ‘Application, saving or transitional
provisions’ (Families, Community Services and Indigenous Affairs and
Other Legislation Amendment (Northern Territory National Emergency Response and
Other Measures) Act 2007 (Cth), s
4(3)).
[224] M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2010, Australian Human Rights Commission (2011), pp
80−98. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[225] See Northern Territory National Emergency Response Act 2007 (Cth), s 6.
Also see: Australian Government, Stronger Futures in the Northern Territory (June 2011), p 4. At http://www.indigenous.gov.au/index.php/stronger-futures-in-the-northern-territory/ (viewed 29 August 2011).
[226] Australian Government, Stronger Futures in the Northern Territory (June
2011). At http://www.indigenous.gov.au/index.php/stronger-futures-in-the-northern-territory/ (viewed 29 August 2011).
[227] Commonwealth, Parliamentary Debates, House of Representatives, 25
November 2009, p 12787 (The Hon J Macklin MP, Minister for Families, Housing,
Community Services and Indigenous Affairs). At http://www.aph.gov.au/hansard/reps/dailys/dr251109.pdf (viewed 1 August 2011); Australian Government, Policy Statement: Landmark
Reform to the Welfare System, Reinstatement of the Racial Discrimination Act and
Strengthening of the Northern Territory Emergency Response, Department of
Families, Housing, Community Services and Indigenous Affairs (2009), pp
10–11. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed 1 August 2011).
[228] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, and The Hon W Snowdon MP, Minister for Indigenous Health,
Rural and Regional Health and Regional Services Delivery, ‘Rent payments
for NTER five-year leases’ (Media Release, 25 May 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/rent_nter_25may10.aspx (viewed 1 August 2011). The amount of rent was determined by the Northern
Territory Valuer-General. The Government also stated that it was ‘standing
by’ to make payments to the remaining 16 Aboriginal corporations which
hold title to community living areas, and that the lease over Northern Territory
Crown land at Canteen Creek did not involve a rent payment.
[229] M Schliebs,
‘Community money remains frozen’, The Australian, 25 June
2011. At http://www.theaustralian.com.au/national-affairs/community-money-remains-frozen/story-fn59niix-1226080880791 (viewed 1 August 2011).
[230] (2009) 237 CLR 309.
[231] For
discussion of this decision, see T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2009, Australian Human
Rights Commission (2010), pp 26–31, 153. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 1 August 2011).
[232] See M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), ch
2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/chapter2.html (viewed 19 August 2011).
[233] National Native Title Tribunal, ‘Milestone for native title
agreements’ (Media Release, 31 March 2011). At http://www.nntt.gov.au/news-and-communications/media-releases/pages/milestone_for_native_title_agreements.aspx (viewed 25 July 2011).
[234] G
Neate, President, National Native Title Tribunal, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 2 August 2011. Also see National Native Title Tribunal, National report: native title (August 2011), p 4. At http://www.nntt.gov.au/Publications-And-Research/Publications/Pages/Corp_publications.aspx (viewed 9 September
2011).
[235] G Neate,
President, National Native Title Tribunal, Correspondence to M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 2 August
2011.
[236] For further
discussion see: M Gooda, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2010, Australian Human Rights
Commission (2011), p 23. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 19 August 2011).
[237] National
Native Title Tribunal, ‘Dja Dja Wurrung People and Charlton Harness Racing
Club
ILUA – Extract from Register of Indigenous Land Use Agreements’ (2011). At http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-Registered-ILUAs/ILUA%20Register/2010/VI2010.002/ILUARegisterExport.pdf (viewed 25 July 2011).
[238] National Native Title Tribunal, ‘Milestone for native title
agreements’ (Media Release, 31 March 2011). At http://www.nntt.gov.au/news-and-communications/media-releases/pages/milestone_for_native_title_agreements.aspx (viewed 25 July 2011).
[239] National
Native Title Tribunal, ‘Dja Dja Wurrung People and Charlton Harness Racing
Club
ILUA – Extract from Register of Indigenous Land Use Agreements’ (2011). At http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-Registered-ILUAs/ILUA%20Register/2010/VI2010.002/ILUARegisterExport.pdf (viewed 25 July 2011).
[240] Agreements, Treaties and Negotiated Settlements Project, Dja Dja Wurrung
People and Charlton Harness Racing Club Indigenous Land Use Agreement
(ILUA), http://www.atns.net.au/agreement.asp?EntityID=5375 (viewed 25 July 2011).
[241] National Native Title Tribunal, ‘Milestone for native title
agreements’ (Media Release, 31 March 2011). At http://www.nntt.gov.au/news-and-communications/media-releases/pages/milestone_for_native_title_agreements.aspx (viewed 25 July 2011).
[242] Attorney-General and Minister for Families, Housing, Community Services and
Indigenous Affairs, ‘500th Indigenous Land Use Agreement
registered today’ (Media Release, 31 March 2011). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2011_FirstQuarter_31March2011-500thIndigenousLandUseAgreementregisteredtoday (viewed 19 August 2011).
[243] See for example, Native Title Act 1993 (Cth), ss 17, 18, 22E,
53.
[244] G Neate, President,
National Native Title Tribunal, Correspondence to M Gooda, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
2 August 2011.
[245] See De
Rose v State of South Australia (No.2) [2005] FCAFC 110. Also
see
Australian Institute for Aboriginal and Torres Strait Islander
Studies, Background report - De Rose Hill South Australia (undated), pp
1, 4. At www.aiatsis.gov.au/ntru/docs/resources/resourceissues/derose.pdf (viewed 14 July 2011).
[246] Australian Institute for Aboriginal and Torres Strait Islander Studies,
Background report - De Rose Hill South Australia (undated), p 4. At www.aiatsis.gov.au/ntru/docs/resources/resourceissues/derose.pdf (viewed 14 July 2011).
[247] De Rose Hill-Ilpalka Aboriginal Corporation RNTBC v State of South
Australia: Federal Court SAD140/2011. Also see South Australian Native Title
Services, ‘De Rose Hill authorises first native title compensation
application’ (May 2011) 44 Aboriginal Way, p 1. At http://www.nativetitlesa.org/publications2/listing/aboriginal-way/ (viewed 30 August 2011). The De Rose Hill - Ilpalka Aboriginal Corporation
(DRHIAC) is the Prescribed Body Corporate for these rights and
interests.
[248] South
Australian Native Title Services, ‘De Rose Hill authorises first native
title compensation application’ (May 2011) 44 Aboriginal Way, p 5.
At http://www.nativetitlesa.org/publications2/listing/aboriginal-way/ (viewed 30 August 2011).
[249] For further information about the Expert Mechanism see United Nations Human
Rights Office of the High Commissioner for Human Rights, The Expert Mechanism
on the Rights of Indigenous Peoples, http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx (viewed 21 September
2011).
[250] Australian Human
Rights Commission, Statement by the Aboriginal and Torres Strait Islander
Social Justice Commissioner Mick Gooda at the third session of the Expert
Mechanism on the Rights of Indigenous Peoples, Geneva, 12–16
July 2010. At http://www.hreoc.gov.au/social_justice/international_docs/2010_EMRIP_Gooda.html (viewed 14 September
2011).
[251] Australian Human
Rights Commission, Statement by the Aboriginal and Torres Strait Islander
Social Justice Commissioner Mick Gooda at the third session of the Expert
Mechanism on the Rights of Indigenous Peoples, Geneva, 12–16
July 2010. At http://www.hreoc.gov.au/social_justice/international_docs/2010_EMRIP_Gooda.html (viewed 14 September
2011).
[252] Human Rights
Council, Report of the Expert Mechanism on the Rights of Indigenous Peoples
on its third session, Geneva, 12-16 July 2010, UN Doc A/HRC/15/36 (2010),
para 2. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September
2011).
[253] Human Rights
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participate in decision-making: Report of the Expert Mechanism on the Rights of
Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September
2011).
[254] Human Rights
Council, Report of the Expert Mechanism on the Rights of Indigenous Peoples
on its fourth session (Geneva, 11–15 July 2011), UN Doc A/HRC/18/43
(2011), para 2. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 11 October 2011).
[255] Universal Declaration
of Human Rights, GA Resolution 217A(III), UN Doc A/810
(1948).
[256] Australian Human
Rights Commission, Statement by the Aboriginal and Torres Strait Islander
Social Justice Commissioner Mick Gooda at the third session of the Expert
Mechanism on the Rights of Indigenous Peoples, Geneva, 12–16
July 2010. At http://www.hreoc.gov.au/social_justice/international_docs/2010_EMRIP_declaration_Gooda.html (viewed 14 September
2011).
[257] Human Rights
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on its third session, Geneva, 12–16 July 2010, UN Doc A/HRC/15/36
(2010), para 8. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September
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[258] See for example
Human Rights Council, Report of the Expert Mechanism on the Rights of
Indigenous Peoples on its third session, Geneva, 12–16 July 2010, UN
Doc A/HRC/15/36 (2010), para 1. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September
2011).
[259] This study should
be read in conjunction with Human Rights Council, Final study on indigenous
peoples and the right to participate in decision-making: Report of the Expert
Mechanism on the Rights of Indigenous Peoples (Advance Edited Version), UN Doc A/HRC/EMRIP/2011/2. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session4.aspx (viewed 26 September 2011).
[260] Establishment of a
Permanent Forum on Indigenous Issues, ECOSOC Resolution 2000/22, UN Doc
E/2000/INF/2/Add.2 (2000). At http://www.un.org/esa/socdev/unpfii/en/resolution_2000_22.html (viewed 26 September
2011).
[261] United Nations
Permanent Forum on Indigenous Issues, Tenth Session of the United Nations
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2011).
[262] Australian Human
Rights Commission, United Nations Permanent Forum on Indigenous Issues
(UNPFII), http://www.humanrights.gov.au/social_justice/international_docs/pfii.html (viewed 26 September
2011).
[263] B Wyatt, Joint
Statement by the Indigenous Peoples’ Organisations Network of Australia on
Agenda Item 3b (Delivered at the tenth session of the United Nations
Permanent Forum on Indigenous Issues New York, 16–27 May 2011). At http://www.humanrights.gov.au/social_justice/international_docs/pfii.html (viewed 7 September 2011).
[264] Economic and Social
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[265] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
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[266] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
(2011), para 25. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[267] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
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[268] S Ross, Joint Statement by the Indigenous Peoples’ Organisations
Network of Australia on Agenda Item 7 (Delivered at the tenth session of the
United Nations Permanent Forum on Indigenous Issues New York, 16–27
May 2011). At http://www.humanrights.gov.au/social_justice/international_docs/pfii.html (viewed 7 September
2011).
[269] Economic and
Social Council, Permanent Forum on Indigenous Issues Report on the tenth
session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14 (2011), para
82. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[270] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
(2011), para 83. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[271] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
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[272] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
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[273] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
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[274] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14
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[275] United Nations Human Rights Office of the High Commissioner for Human Rights, Universal Period Review, http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx (viewed 26 September
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[276] Human Rights
Council, Report of the Working Group on the Universal Periodic Review
Australia, UN Doc A/HRC/17/10 (2011). At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 8 September
2011).
[277] Aboriginal Legal
Service of Western Australia, UPR Fact Sheet, http://www.als.org.au/images/stories/UPR_Fact_Sheet.pdf (viewed 8 September 2011). Also see Aboriginal Legal Service of Western
Australia, Recommendations submitted to the Australian Government relating to
Aboriginal and Torres Strait Islander Peoples, http://www.als.org.au/images/stories/UPR_Reccommendations_on_the_rights_of_Aboriginal_and_Torres_Strait_Islander_peoples.pdf (viewed 8 September 2011).
[278] Human Rights Council, Report of the Working Group on the Universal Periodic Review Australia,
UN Doc A/HRC/17/10 (2011), rec 86.102. At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 8 September
2011).
[279] See Human Rights
Council, Report of the Working Group on the Universal Periodic Review
Australia: Addendum: Views on conclusions and/or recommendations, voluntary
commitments and replies presented by the State under review, UN Doc
A/HRC/17/10/Add.1 (2011). At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 26 September 2011). Also see: Attorney-General and Minister for Foreign
Affairs, ‘Australia’s response to its Universal Periodic Review at
the UN’ (Media Release, 6 June 2011). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2011_SecondQuarter_6June2011-AustraliasresponcetoitsUniversalPeriodicReviewattheUN (viewed 27 September
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[280] Human Rights
Council, Report of the Working Group on the Universal Periodic Review
Australia: Addendum: Views on conclusions and/or recommendations, voluntary
commitments and replies presented by the State under review, UN Doc
A/HRC/17/10/Add.1 (2011), para 4. At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 26 September 2011).
[281] Attorney-General and
Minister for Foreign Affairs, ‘Australia’s response to its Universal
Periodic Review at the UN’ (Media Release, 6 June 2011). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2011_SecondQuarter_6June2011-AustraliasresponcetoitsUniversalPeriodicReviewattheUN (viewed 27 September
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[282] 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 1. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011).
[283] Australian Human Rights Commission, Information concerning Australia and the
International Convention on the Elimination of All Forms of Racial
Discrimination (8 July 2010). At http://www.humanrights.gov.au/legal/submissions/united_nations/ICERD2010.html (viewed 30 August 2011).
[284] Legislative amendments have formally lifted the suspension of the RDA in
relation to the NTER legislation. This means that s 9 of the RDA will apply to
decisions and actions done under or for the purposes of the NTER legislation.
Section 10 of the RDA will also apply in relation to the NTER legislation
itself. However, the amendments did not expressly state that the RDA would
prevail even if contrary to the NTER legislation. The amendments also included
retrospective application provisions. The result of this is that if the NTER
legislation cannot be read so as to be consistent with the RDA, the NTER
legislation, being the later legislation, will prevail. In other words, if there
is a conflict, the NTER legislation will override the RDA. Any remaining
discriminatory measures under the NTER, such as the compulsory acquisition of
five-year leases, cannot be challenged under the RDA. Furthermore, measures the
Government considers to be ‘special measures’ under the RDA, may not
in fact be compliant with the requirements of a special measure under the RDA.
See Australian Human Rights Commission, Information concerning Australia and
the International Convention on the Elimination of All Forms of Racial
Discrimination (8 July 2010), paras 61–64. At http://www.humanrights.gov.au/legal/submissions/united_nations/ICERD2010.html (viewed 30 August 2011).
[285] Australian Human Rights Commission, Information concerning Australia and the
International Convention on the Elimination of All Forms of Racial
Discrimination (8 July 2010), paras 65–66. At http://www.humanrights.gov.au/legal/submissions/united_nations/ICERD2010.html (viewed 30 August 2011).
[286] 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 13. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011).
[287] 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 16. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011).
[288] 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 32. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011). CERD also requested information to be provided with
respect to paras 11 and
23.
[289] 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 30 August 2011).
[290] 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 33. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011). CERD also requested detailed information with respect
to paras 22 and 26.
[291] 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 34. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011).
[292] Native Title Act 1993 (Cth), s
209.
[293] M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2010, Australian Human Rights Commission (2011), p 8. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[294] M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 8.
At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[295] R
McClelland, Attorney-General, Australian Government, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 2 September
2011.
[296] 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 78. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 9 September
2011).
[297] R McClelland,
Attorney-General, Australian Government, Correspondence to M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 2 September
2011.
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[299] Economic and Social Council, Permanent Forum on Indigenous Issues Report on
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[305] Australian Government, Strategic Review of Indigenous Expenditure (February 2010), p 275. At http://www.finance.gov.au/foi/disclosure-log/2011/docs/foi_10-27_strategic_review_indigenous_expenditure.pdf (viewed 4 September
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[307] Minister for Families, Housing, Community Services and Indigenous Affairs,
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[308] Australian Government, Leading practice agreements: maximising outcomes from
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[314] R
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[315] Native Title and
Leadership Branch, Department of Families, Housing, Community Services and
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12 October 2011.
[316] Native
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[317] I Rawlings, Chief
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[318] M Gooda, Aboriginal and
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[319] R
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[320] See Human Rights
(Parliamentary Scrutiny) Bill
2010.
[321] M Gooda, Aboriginal
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[322] Australian Government, Stronger Futures in the Northern Territory (June
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[323] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec
3.3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[324] Department of Families, Housing, Community Services, and Indigenous Affairs, Closing the Gap: National Indigenous Reform Agreement, http://www.fahcsia.gov.au/sa/indigenous/progserv/ctg/Pages/NIRA.aspx (viewed 27 September
2011).
[325] Australian
Government, Engaging Today, Building Tomorrow: A framework for engaging with
Aboriginal and Torres Strait Islander Australians (2011), p
3.
[326] Department of
Families, Housing, Community Services and Indigenous Affairs staff, Email
correspondence to Australian Human Rights Commission, 14 September
2011.
[327] Department of
Families, Housing, Community Services and Indigenous Affairs staff, Email
correspondence to Australian Human Rights Commission, 14 September
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[328] Australian
Government, Engaging Today, Building Tomorrow: A framework for engaging with
Aboriginal and Torres Strait Islander Australians (2011), p
4.
[329] Department of
Families, Housing, Community Services and Indigenous Affairs staff, Email
correspondence to Australian Human Rights Commission, 14 September
2011.
[330] M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
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[331] Australian Government, Stronger Futures in the Northern Territory (June
2011), p 22. At http://www.indigenous.gov.au/index.php/stronger-futures-in-the-northern-territory/ (viewed 29 August 2011).
[332] Aboriginal Peak Organisations Northern Territory, Response to Stronger
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2011).
[333] See Northern
Territory National Emergency Response Act 2007 (Cth), s
6.
[334] Economic and Social
Council, Permanent Forum on Indigenous Issues Report on the tenth session
(16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14 (2011), para 36. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[335] Commonwealth, Parliamentary Debates, House of Representatives, 15
November 2010, p 2148 (The Hon Tony Abbott MP, Opposition Leader). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=BillId_Phrase%3Ar4467%20Title%3A%22first%20reading%22%20Dataset%3Ahansardr;rec=0 (viewed 27 September
2011).
[336] Native Title
Amendment (Reform) Bill 2011 (Cth), sch 1, item 1, proposed s 3A.