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

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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 Act to specify that native title rights and interests include ‘the right to trade and other rights and interests of a commercial nature’.[22] Currently, the Native Title Act does not clearly specify that native title rights and interests can be of a commercial nature although the Federal Court has recently found native title rights may include commercial rights and interests.

This reform is worthy of highlighting because during the Reporting Period, the Federal Court handed down its decision in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2)[23], in which Justice Finn found that in some cases, native title rights may include the right to access, take and use resources for trading or commercial purposes.[24]

This is important given the Declaration affirms our right to self-determination and by virtue of that right, we ‘freely determine their political status and freely pursue their economic, social and cultural development’.[25]


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 Bill.[30]

22 November 2010

The Australian Government released the Design of the Carbon Farming Initiative Consultation Paper. The Government received approximately 280 submissions from a diverse range of stakeholders.[31]

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 Change, Environment and the Arts (House Standing Committee).[32]

25 March 2011

The CFI Bill was referred to the Senate Standing Committees on Environment and Communications (Senate Standing Committee).[33]

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 Consultation Paper – Enabling Indigenous participation: native title and land rights land issues. This paper was released as part of a process to give further consideration to the complexities of carbon farming on Aboriginal and Torres Strait Islander land. I discuss this further below.

22 August 2011

The CFI Bill passed the Senate.[34]

23 August 2011

The CFI Bill passed the House of Representatives.[35]

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): emissions reduction project[52]

In the Native Title Report 2007 my predecessor profiled the Western Arnhem Land fire management (WALFA) project. This project is an example of savannah fire management.

The WALFA project began in 2006 and is a partnership between the Aboriginal Traditional Owners, Indigenous Ranger Groups, Darwin Liquefied Natural Gas, the Northern Territory Government and the Northern Land Council (NLC).

The WALFA project area is populated by tropical savannah which is particularly prone to fire. The project reduces the amount of country that is burnt in the project area each year as a result of wildfires. This in turn reduces the emission of greenhouse gases that would have been released in the wildfires.

The project achieves this is by reintroducing traditional Aboriginal fire management techniques which have been absent as a result of Aboriginal people moving off their traditional lands since European settlement.

Traditionally Aboriginal land managers would burn much of the country in the early dry season, thereby creating firebreaks which would prevent large wildfires in the late dry season. Fires that burn in the early dry season are relatively ‘cool’ due to the lack of ‘fuel’ and do not significantly damage the landscape. On the other hand, late dry season fires burn ‘hot’ because the landscape has completely dried and there is more ‘fuel’. These fires damage the canopy of the trees and can burn out of control emitting greenhouse gases that account for 48% of the Northern Territory’s total greenhouse gas emissions.

The project burning is carried out under the management of the NLC in conjunction with community ranger groups of five partner communities.[53] It is now reducing greenhouse gas emissions from the area by the equivalent of over 100,000 tonnes of carbon dioxide each year.[54]

This landmark project not only meets government environmental objectives in terms of reduced greenhouse gas emissions but also economic outcomes in the form of sustainable employment for Aboriginal rangers and land managers. The project also promotes the maintenance and protection of cultural knowledge through the application of traditional land management practices.[55]


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 to:

  • allow the Federal Court to determine whether it, the NNTT or another individual or body, should mediate a claim,[88] which gives the Federal Court ‘the central role in managing native title claims’[89]

  • enable the Federal Court to rely on an agreed statement of facts between the parties in consent determinations[90]

  • provide for the application of recent amendments to the Evidence Act 1995 (Cth) to native title proceedings that began before 1 January 2009 and where evidence has been heard, if the parties consent or the Federal Court orders that it is in the interests of justice to do so[91]

  • empower the Federal Court to make orders to give effect to the terms of an agreement that involve matters other than native title.[92]


(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 new Victorian Native Title Settlement Framework. The determination was accompanied by the signing of a Recognition and Settlement Agreement with the Victorian Government at a ceremony after the hearing.[151] Native Title Services Victoria has said the agreement has been enabled by the new Traditional Owner Settlement Act 2010 (Vic) (Settlement Act).[152]

The determination recognises the Gunaikurnai people’s traditional ownership across much of Gippsland, including rights to some 22,000 square kilometres of lands.[153]

The agreement includes the return of land to the Gunaikurnai people through a ‘grant of Aboriginal [t]itle with the condition of joint management over 10 key sites of cultural significance’.Aboriginal title is a new form of land tenure created under the Settlement Act.[154] It also includes new protocols for welcomes to country and cross cultural training.[155]

Importantly it allows for funding for the Gunaikurnai people to manage their affairs and obligations under the settlement.[156] The Australian and Victorian Governments both contributed $6 million towards the $12 million settlement package.[157]

Senior Gunaikurnai Elder Albert Mullett said that ‘his people had finally won the respect and recognition they had been struggling hundreds of years for’.[158]

The Attorney-General said that ‘today’s settlement is a significant achievement for all involved and is a good example of the approach we can and should be taking to resolve native title claims, which result in enduring benefits’.[159]


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 Charlton Harness Racing Club in Victoria.[237]

The agreement relates ‘to the proposed expansion of the Charlton Harness Racing Club in regional Victoria. It records the consent of the Dja Dja Wurrung people to those developments in exchange for certain benefits, including the establishment of an annual Spring race to be known as the Dja Dja Wurrung Cup which will be presented by a Dja Dja Wurrung Elder’.[238]

The agreement is spread across an area of approximately 8.6 hectares[239] and provides for certain future acts in relation to harness racing in the ILUA area.[240]

The NNTT sees this milestone as a reflection of the increased collaboration between the different parties,[241] and the Minister for Families, Housing, Community Services and Indigenous Affairs, described it as a ‘significant milestone in the history of native title in Australia’.[242]


(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 people made the original claim for native title on behalf of themselves and others who are Nguraritja people over 1865 square kilometres of land subject to three perpetual pastoral leases at De Hose Hill Station in South Australia. The full Federal Court delivered its determination on 8 June 2005, awarding non-exclusive native title rights to the Nguraritja people. These included the rights to use and enjoy the land and waters in accordance with traditional laws and customs of the Western Desert Bloc people.[245]

However the determination area did not extend to any area that was a house, shed, building, airstrip or any adjacent area where exclusive use was necessary for the enjoyment of that improvement.[246]

On 9 June 2011 the native title holders for De Rose Hill in South Australia made a compensation application for these native title rights which were held to be extinguished. This is the first such claim in South Australia.[247]

A successful determination of native title compensation in De Rose Hill will set a positive example for other native title compensation claims. It will also be ‘a proper recognition of the loss and suffering that De Rose Hill native title holders have suffered as a result of those acts that have “extinguished” native title’.[248]


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. 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 the United Nations Declaration on the Rights of Indigenous Peoples. The terms of reference for this review should be developed in full consultation with all relevant stakeholders, particularly Aboriginal and Torres Strait Islander peoples. This inquiry could form part of the Australian Government’s National Human Rights Action Plan.
  1. That the Australian Government take steps to formally respond to, and implement, recommendations which advance the rights of Aboriginal and Torres Strait Islander peoples to their lands, territories and resources, made by international human rights mechanisms including:
    • Special Rapporteur on the rights of indigenous peoples
    • Expert Mechanism on the Rights of Indigenous Peoples
    • United Nations Permanent Forum on Indigenous Issues
    • treaty reporting bodies.
  2. That the Australian Government develop a ‘Statement or Charter of Engagement’ to complement Engaging Today, Building Tomorrow: A framework for engaging with Aboriginal and Torres Strait Islander Australians. This document should include the Government’s commitment to be guided by the principles of the United Nations Declaration on the Rights of Indigenous Peoples 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.
  1. That the Australian Government should implement outstanding recommendations from the Native Title Report 2010 and provide a formal response for next year’s Report which outlines the Government’s progress towards implementing the recommendations from both the Native Title Report 2010 and Native Title Report 2011.
  1. That the Australian Government work in partnership with Aboriginal and Torres Strait Islander peoples to develop a national strategy to ensure the principles of the United Nations Declaration on the Rights of Indigenous Peoples are given full effect.


[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 Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 2 August 2011.
[107] P D’Aranjo, Manager Native Title Program, Central Land Council, Email correspondence to Australian Human Rights Commission, 12 July 2011.
[108] I Rawlings, Chief Executive Officer, Central Desert Native Title Services Limited, Email correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 26 July 2011.
[109] I Rawlings, Chief Executive Officer, Central Desert Native Title Services Limited, Email correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 26 July 2011.
[110] K Smith, Chief Executive Officer, Queensland South Native Title Services, Email correspondence to the Australian Human Rights Commission, 10 October 2011.
[111] 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.
[112] K Smith, Chief Executive Officer, Queensland South Native Title Services, Email correspondence to the Australian Human Rights Commission, 10 October 2011.
[113] National Native Title Tribunal, Annual Report 2009−2010 (2010), p 21. At http://www.nntt.gov.au/Publications-And-Research/Publications/Pages/Annual_reports.aspx (viewed 26 September 2011).
[114] National Native Title Tribunal, Annual Report 2009−2010 (2010), p 21. At http://www.nntt.gov.au/Publications-And-Research/Publications/Pages/Annual_reports.aspx (viewed 26 September 2011).
[115] 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.
[116] G Neate, Resolving native title issues: travelling on train tracks or roaming the range? (Paper for the Native Title and Cultural Heritage Conference, 26 October 2009), p 39. At http://www.nntt.gov.au/News-and-Communications/Speeches-and-papers/Pages/Resolving_native_title_issues_travelling_on_train_tracks_or_roaming_the_range_by_Graeme_Neate.aspx (viewed 26 September 2011).
[117] G Neate, Resolving native title issues: travelling on train tracks or roaming the range? (Paper for the Native Title and Cultural Heritage Conference, 26 October 2009), p 39. At http://www.nntt.gov.au/News-and-Communications/Speeches-and-papers/Pages/Resolving_native_title_issues_travelling_on_train_tracks_or_roaming_the_range_by_Graeme_Neate.aspx (viewed 26 September 2011).
[118] Commonwealth, Parliamentary Debates, House of Representatives, 19 March 2009, pp 3250−3251 (The Hon R McClelland MP, Attorney-General). At http://www.aph.gov.au/hansard/reps/dailys/dr190309.pdf (viewed 19 September 2011).
[119] 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. The National Native Title Tribunal is also a member of this Committee: Australian Government, Attorney-General’s Department, Native title system coordination and consultation, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlesystemcoordinationandconsultation (viewed 25 September 2011).
[120] M Aranda, Principal Legal Officer, South West Aboriginal Land & Sea Council, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 12 August 2011.
[121] Explanatory Memorandum, Native Title Amendment Bill (No 1) 2010, p 2.
[122] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), pp 44–51, 72−79. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[123] For a discussion on s 24JAA notices, see M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), pp 44–51, 72−79. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[124] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 44. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[125] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 44. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[126] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 44. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011). Also see: United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), arts 3, 18, 32(1). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 29 August 2011). For a summary of other concerns also see: C Stacey & J Fardin, Australian Institute of Aboriginal and Torres Strait Islander Studies, Housing on native title lands: responses to the housing amendments of the Native Title Act, Native Title Research Unit Issues Paper No. 6, Vol 4. At http://aiatsis.gov.au/ntru/documents/IPHousing.pdf (viewed 3 September 2011).
[127] Attorney-General’s Department and Department of Families, Housing, Community Services and Indigenous Affairs, Supplementary submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Native Title Amendment Bill (No 2) 2009 (Cth) (3 February 2010), p 2. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 24 September 2010).
[128] R Nolan, Minister for Finance, Natural Resources and The Arts, Queensland Government, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 10 August 2011.
[129] Cape York Land Council Aboriginal Corporation, Email correspondence to the Australian Human Rights Commission, 16 June 2011.
[130] J T Kris, Chairperson, Torres Strait Regional Authority, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 26 July 2010.
[131] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/chapter2.html (viewed 19 August 2011).
[132] Woorabinda Social Housing ILUA. K Smith, Chief Executive Officer, Queensland South Native Title Services, Email correspondence to the Australian Human Rights Commission, 10 October 2011.
[133] R Nolan, Minister for Finance, Natural Resources and The Arts, Queensland Government, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 10 August 2011.
[134] 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/chapter2.html (viewed 19 August 2011).
[135] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 4. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[136] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/chapter2.html (viewed 19 August 2011).
[137]Native Title Act 1993 (Cth), s 24JAA(15).
[138] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.6. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/chapter2.html (viewed 19 August 2011).
[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 Yarrow and Chris Marshall, Traditional Owner Settlement Bill 2010 (Vic) An Information paper for Victorian Traditional Owners (3 September 2010), p 1. At http://www.landjustice.com.au/?t=3 (viewed 29 August 2011).
[141] Steering Committee for the Development of a Victorian Native Title Settlement Framework, Report of the Steering Committee for the Development of a Victorian Native Title Settlement Framework, Department of Justice (Victoria) (2008), p 10. At http://www.landjustice.com.au/ (viewed 7 October 2010). See also T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), pp 47–51. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 7 October 2010).
[142] D Yarrow and C Marshall, Traditional Owner Settlement Bill 2010 (Vic) An Information paper for Victorian Traditional Owners (3 September 2010), p 1. At http://www.landjustice.com.au/?t=3 (viewed 29 August 2011).
[143] D Yarrow and C Marshall, Traditional Owner Settlement Bill 2010 (Vic) An Information paper for Victorian Traditional Owners (3 September 2010), p 1. At http://www.landjustice.com.au/?t=3 (viewed 29 August 2011).
[144] Explanatory Memorandum, Traditional Owner Settlement Bill 2010 (Vic), p 1.
[145] Explanatory Memorandum, Traditional Owner Settlement Bill 2010 (Vic), p 1.
[146] Explanatory Memorandum, Traditional Owner Settlement Bill 2010 (Vic), p 1.
[147] D Yarrow and C Marshall, Traditional Owner Settlement Bill 2010 (Vic) An Information paper for Victorian Traditional Owners (3 September 2010), pp 1−2. At http://www.landjustice.com.au/?t=3 (viewed 29 August 2011).
[148] D Yarrow and C Marshall, Traditional Owner Settlement Bill 2010 (Vic) An Information paper for Victorian Traditional Owners (3 September 2010), p 4. At http://www.landjustice.com.au/?t=3 (viewed 29 August 2011).
[149] See M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 37. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[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 Native Title Consent Determination’ (Media Release, 22 October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[152] Native Title Services Victoria, ‘Gunaikurnai people win respect and recognition in Native Title Consent Determination’ (Media Release, 22 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 recognition in Native Title Consent Determination’ (Media Release, 22 October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[154] Native Title Services Victoria, ‘Gunaikurnai people win respect and recognition in Native Title Consent Determination’ (Media Release, 22 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 recognition in Native Title Consent Determination’ (Media Release, 22 October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[156] Native Title Services Victoria, ‘Gunaikurnai people win respect and recognition in Native Title Consent Determination’ (Media Release, 22 October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[157] Attorney-General, ‘Gunaikurnai native title recognition’ (Media Release, 22 October 2010). At http://www.ema.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_FourthQuarter_22October2010-Gunaikurnainativetitlerecognition (viewed 29 August 2011).
[158] Native Title Services Victoria, ‘Gunaikurnai people win respect and recognition in Native Title Consent Determination’ (Media Release, 22 October 2010). At http://www.ntsv.com.au/who/index.php?t=6 (viewed 29 August 2011).
[159] Attorney-General, ‘Gunaikurnai native title recognition’ (Media Release, 22 October 2010). At http://www.ema.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_FourthQuarter_22October2010-Gunaikurnainativetitlerecognition (viewed 29 August 2011).
[160] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), pp 58−66. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[161] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 65. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[162] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 65. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[163] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010). At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[164] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010), p1. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[165] Department of Families, Housing, Community Services and Indigenous Affairs, Indigenous Economic Development Strategy Draft for Consultation, http://resources.fahcsia.gov.au/IEDS/ (viewed 2 September 2011).
[166] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010), p1. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[167] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010), p iii. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[168] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010), p iv. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[169] Australian Human Rights Commission, Submission to the Minister for Families, Housing, Community Services and Indigenous Affairs: Draft Indigenous Economic Development Strategy (17 December 2010). At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101217_draft_Indigenous_devt.html (viewed 13 September 2011).
[170]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 9 December 2010).
[171]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 9 December 2010). Also see arts 4, 20 and 31(1).
[172]United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 18. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 9 December 2010).
[173] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010), p 18. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[174] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2005, Human Rights and Equal Opportunity Commission (2006), p 35. At http://www.humanrights.gov.au/social_justice/sj_report/index.html#2005 (viewed 13 December 2010).
[175] See: Australian Human Rights Commission, Submission to the Minister for Families, Housing, Community Services and Indigenous Affairs: Draft Indigenous Economic Development Strategy (17 December 2010), p 11. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101217_draft_Indigenous_devt.html (viewed 13 September 2011); M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), p 55. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[176] Australian Government, Indigenous Economic Development Strategy: Draft for Consultation (2010), p 19. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed 29 August 2011).
[177] See Australian Human Rights Commission, Submission to the Minister for Families, Housing, Community Services and Indigenous Affairs: Draft Indigenous Economic Development Strategy (17 December 2010), p 8. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101217_draft_Indigenous_devt.html (viewed 13 September 2011); T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2010), p 59. At http://www.humanrights.gov.au/social_justice/nt_report/index.html (viewed 26 September 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 native title benefits Discussion Paper (July 2010). At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[181] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 5. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[182] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 5. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[183] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), pp 6−14. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[184] Attorney-General’s Department, Consultation on possible governance and future acts reforms, http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_Consultationonpossiblegovernanceandfutureactsreforms (viewed 29 August 2011).
[185] Attorney-General’s Department, Consultation on possible governance and future acts reforms, http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_Consultationonpossiblegovernanceandfutureactsreforms (viewed 29 August 2011).
[186] 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).
[187] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 6. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[188] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 7. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[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 discussion paper (30 November 2010), para 16. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[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 discussion paper (30 November 2010), ss 4.1, 4.2. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[191] 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 19. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/20101130_leading_practice.html (viewed 29 August 2011).
[192] For information on the Indigenous Community Governance Project, see Reconciliation Australia, The Indigenous Community Governance Research Project, http://www.reconciliation.org.au/home/projects/indigenous-governance-research-project (viewed 26 November 2010); Centre for Aboriginal Economic Policy Research, Indigenous Community Governance, http://caepr.anu.edu.au/governance/index.php (viewed 26 November 2010).
[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), p 34. At http://www.reconciliation.org.au/extras/file.php?id=256&file=Indigenous+Community+Governance+Research+Project+-+File+1.pdf (viewed 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 native title benefits Discussion Paper (July 2010), pp 8−10. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[198] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 8. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[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).
[204] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 14. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[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).
[207] Australian Government, Native Title, Indigenous Economic Development and Tax (2010), p 1. At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
[208] Australian Government, Native Title, Indigenous Economic Development and Tax (2010), p 1. At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
[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).
[210] Australian Government, Native Title, Indigenous Economic Development and Tax (2010), p 8. At http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1890 (viewed 29 August 2011).
[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 Council, Progress report on the study on indigenous peoples and the right to 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 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 8. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).
[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 Permanent Forum on Indigenous Issues, http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 21 September 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 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 18. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 (2011), para 21. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 (2011), para 32. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 (2011), para 79. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 (2011), para 37. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 (2011), para 47. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 (2011), para 38. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[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 2011).
[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 2011).
[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 2011).
[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.
[298] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 1.1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[299] 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 47. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[300] Australian Government, National Human Rights Action Plan Baseline Study Consultation Draft (June 2011), p 20. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_AustraliasHumanRightsFramework_ConsultationDraftBaselineStudy (viewed 27 September 2011).
[301] C Halbert, Deputy Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Statement on the Declaration on the Rights of Indigenous Peoples (Statement delivered at the Tenth Session of the United Nations Permanent Forum on Indigenous Issues, New York, 18 May 2011). At http://www.docip.org/gsdl/cgi-bin/library?e=d-01000-00---off-0cendocdo--00-1--0-10-0---0---0prompt-10---4-------0-1l--11-en-50---20-about---00-3-1-00-0-0-11-1-0utfZz-8-00&a=d&c=cendocdo&cl=CL2.3.14.6 (viewed 9 September 2011).
[302] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), recs 1.2, 1.3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[303] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[304] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[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 2011).
[306] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.4. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[307] Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Government releases Native Title Discussion Paper’ (Media Release, 3 July 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/government_releases_native_title_discussion_paper.aspx (viewed 29 August 2011).
[308] Australian Government, Leading practice agreements: maximising outcomes from native title benefits Discussion Paper (July 2010), p 14. At http://www.fahcsia.gov.au/sa/indigenous/pubs/land/Pages/leading_practice_agreements.aspx (viewed 29 August 2011).
[309] 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.
[310] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), recs 2.2, 2.5, 2.6. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[311] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.7. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[312] 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.
[313] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 2.8. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[314] 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.
[315] Native Title and Leadership Branch, Department of Families, Housing, Community Services and Indigenous Affairs, Email correspondence to Australian Human Rights Commission, 12 October 2011.
[316] Native Title and Leadership Branch, Department of Families, Housing, Community Services and Indigenous Affairs, Email correspondence to Australian Human Rights Commission, 12 October 2011.
[317] I Rawlings, Chief Executive Officer, Central Desert Native Title Services Limited, Email Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 26 July 2011.
[318] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 3.1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[319] 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.
[320] See Human Rights (Parliamentary Scrutiny) Bill 2010.
[321] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), rec 3.2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[322] Australian Government, Stronger Futures in the Northern Territory (June 2011), p 3. At http://www.indigenous.gov.au/index.php/stronger-futures-in-the-northern-territory/ (viewed 29 August 2011).
[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 2011.
[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 2010, Australian Human Rights Commission (2011), rec 3.4. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).
[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 Futures (August 2011), p 33. At http://www.nlc.org.au/html/wht_pub.html (viewed 9 September 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.