Native Title Report 2011: Appendix 3: Recommendations from the Native Title Report 2011

Recommendations

1.1 That the Australian Government work in partnership with Aboriginal and
Torres Strait Islander peoples to develop a national strategy to ensure the full
implementation of the United Nations Declaration on the Rights of Indigenous
Peoples.

1.2 That the Australian Government introduce legislation into Parliament to
require the Attorney-General to table the annual Native Title Report within a set timeframe.

1.3 That the Australian Government introduce legislation into Parliament to
require the Attorney-General to provide a formal response to the annual Native Title Report and the Social Justice Report within a set
timeframe.

Recommendations

2.1 That the Australian Government commission an independent inquiry to
review the operation of the native title system and explore options for native
title law reform, with a view to aligning the system with international human
rights standards. Further, that the terms of reference for this review be
developed in full consultation with all relevant stakeholders, particularly
Aboriginal and Torres Strait Islander peoples. Such terms of reference could
include, but not be limited to, an examination of:

• the impact of the current burden of proof
• the operation of the law regarding extinguishment
• the future act regime
• options for advancing negotiated settlements (including the potential for
  alternative, comprehensive settlements).

2.2 That the Australian
Government work with Native Title Representative Bodies, Native Title Service
Providers, Prescribed Bodies Corporate and other Traditional Owner groups to
explore options for streamlining agreement-making processes, including options
for template agreements on matters such as the construction of public
housing and other infrastructure.

2.3 That the Australian Government make every endeavour to finalise the
Native Title National Partnership Agreement. Further, that the Australian
Government consider options and incentives to encourage states and territories
to adopt best practice standards in agreement-making.

2.4 That the Australian Government pursue reforms to clarify and strengthen
the requirements for good faith negotiations in 2010–2011.

2.5 That the Australian, state and territory governments commit to only
using the new future act process relating to public housing and infrastructure
(introduced by the Native Title Amendment Act (No 1) 2010 (Cth)) as a
measure of last resort.

2.6 That the Australian Government begin a process to establish the
consultation requirements that an action body must follow under the new future
act process introduced by the Native Title Amendment Act (No 1) 2010 (Cth). Further, that the Australian Government ensure that Aboriginal and Torres
Strait Islander peoples are able to participate effectively in the development
of these requirements.

2.7 That the Australian Government:

• consult and cooperate in good faith in order to obtain the free, prior and
  informed consent of Aboriginal and Torres Strait Islander peoples
• provide a clear, evidence-based policy justification

before
introducing reforms that are designed to ensure the ‘sustainability’
of native title agreements.

2.6 That, as part of its efforts to ensure that native title agreements are
sustainable, the Australian Government ensure that Native Title Representative
Bodies, Native Title Service Providers, Prescribed Bodies Corporate and other
Traditional Owner groups have access to sufficient resources to enable them to
participate effectively in negotiations and agreement-making processes.

Recommendations

3.1 That any consultation document regarding a proposed legislative or
policy measure that may affect the rights of Aboriginal and Torres Strait
Islander peoples contain a statement that details whether the proposed measure
is consistent with international human rights standards. This statement
should:

• explain whether, in the Australian Government’s opinion, the proposed
  measure would be consistent with international human rights standards and, if
  so, how it would be consistent
• pay specific attention to any potentially racially discriminatory elements
  of the proposed measure
• where appropriate, explain the basis upon which the Australian Government
  asserts that the proposed measure would be a special measure
• be made publicly available at the earliest stages of consultation processes.

3.2 That the Australian Government undertake all necessary
consultation and consent processes required for the development and
implementation of a special measure.

3.3 That the Australian Government 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. Further, that the
Australian Government commit to using this framework to guide the development of
consultation processes on a case-by-case basis, in partnership with the
Aboriginal and Torres Strait Islander peoples that may be affected by a proposed
legislative or policy measure.

3.4 That Part 4 of the NTNER Act be amended to remove the capacity to
compulsorily acquire any further five-year leases. Further, in respect of the
existing five-year lease arrangements, that the Australian Government implement
its commitment to transition to voluntary leases with the free, prior and
informed consent of the Indigenous peoples affected; and that it ensure that
existing leases are subject to the Racial Discrimination Act 1975 (Cth).