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Aboriginal and Torres Strait Islander Social Justice Commissioner
Native Title Report January - June 1994
Native Title Report January - June 1994
Introduction
Executive Summary
Chapter 1 -- The Native Title Act
Chapter 2 -- Human Rights
Chapter 3 -- Extinguishment
Chapter 4 -- The National Native Title Tribunal
Chapter 5 -- Economic and Resource Management Issues
Chapter 6 -- Community Awareness
The Native Title Act
1 Introduction
2 Recognising Native Title
Applications
Claimant applications
Non-claimant applications
Revocation or variation
Regulations for claimant applications
Acceptance test
Bodies corporate
Representative Bodies
Adequate funding
Resolving disagreements
3 Validation and Extinguishment
Aboriginal and Torres Strait Islander land
Compensation
4 Future Acts
The right to negotiate
Response to proposed amendments
Prospecting and exploration
Compulsory acquisitions
Expectations of interests
Converted pastoral leases
Negotiating royalties
Arbitration
Response to proposed amendments
Keeping arbitration within the State or Territory
Duplication
Arbitration Criteria
Ministerial override
Response to proposed amendment
State and Territory relations
Exclusions
Time concerns
5 Preservation of Native Title Rights and Interests
Preservation of activities
Ownership of natural resources and access to beaches
6 Complementary Legislation
State bodies
Declaratory provision
Inconsistent legislation
Financial arrangements
7 Native Title and Statutory Title
Human Rights
1 Native Title and International Law
2 The Native Title Act and Human Rights
Recognising Indigenous ownership on Indigenous terms
`Proving' native title
Protection of native title
Protection as a primary concern
Negotiation and consent
National and state interest
Validation in perspective
Compensation
3 Opportunity for the Future
The broader recognition of Indigenous customary law
Self-determination and Self-government
Concluding comments
Extinguishment
1 Introduction
2 The Right to Extinguish
3 Indigenous Perspectives
4 The Presumption Against Extinguishment
5 Extinguishment by Clear and Plain Intent
6 Extinguishment by Inconsistency
Inconsistent grants
What is inconsistent?
Mabo [No:2] and leases
Pastoral leases and inconsistency
7 Co-Existence and Partial Inconsistency
8 Giving Effect to Wrongful Acts at Common Law
9 Fiduciary Duties and the Extinguishment of Native Title
10 Conclusion
The National Native Title Tribunal
1 Role of The National Native Title Tribunal
2 Judicial Power
3 Preparing the Application
Claimants
Application fees
Form design
Indigenous name
Tenure searches
Maps and descriptions
Descriptions
Maps
4 Accepting the Application
Pre- acceptance consultations
Receipt of applications
Acceptance test
Acceptance and extinguishing events
Guidelines and pastoral leases
Guidelines and presumptions of law
Decisions of the registrar which amount to decisions on points of law
Preliminary inquiries: prima facie case and questions of law
5 Mediation
6 Claims
7 Proposal to Separate Mediation and Determinations
8 Conclusion
Economic and Resource Management Issues
1 State Governments, Future Grants and Infrastructure
State governments and the future act procedures
Procedures for future grants
Permissible future acts
Provision of public infrastructure
Genuinely equal procedural rights
The right to negotiate
Exclusions from the right to negotiate
Administrative procedures
Keeping uncertainty in perspective
Regional agreements
2 Environmental and Land Management Issues
International recognition
National Parks: an example of co-operative land management
3 The Native Title Act and Australian Industry
The Native Title Act and the fishing industry
Common law native title and fisheries
Fishing interests and the Native Title Act
Validation and future acts
Access
Compensation
Indigenous involvement in fisheries management
Regional agreements and fisheries
The Native Title Act and mining activity
The pastoral industry and the Native Title Act
Pastoral leases and native title
Native title claims to pastoral leases
Tribunal procedures
Power in mediations
Banks and financial institutions
Aborigines in the pastoral industry
Co-existence
Community Awareness
1 Community Education and Human Rights
2 Native Title
3 Consultation and Co-ordination
4 National Aboriginal and Torres Strait Islander
5 AIATSIS Native Titles Research Unit
6 The National Native Title Tribunal
7 Information, Education and Training Needs
8 Cross-Cultural Communication
9 Specific Community Programmes
10 Conclusion
Concluding Comments
Appendix 1: Submissions Received by the Aboriginal and Torres Strait Islander Social Justice Commissioner
Appendix 2: Contributors
Appendix 3: Applications Received by the National Native Title Tribunal as at 30 June 1994
Appendix 4: Summary of The State of Western Australia v The Commonwealth
Background
The Issues
Is native title extinguished by the establishment of the colony of Western Australia?
The WA Act and the Racial Discrimination Act
Is the Native Title Act constitutional?
Validation
Future Acts
Race power
Limitations on specific powers
Control of the legislative powers of the State
Impermissible discrimination against Western Australia
The relationship between the NTA and the RDA
Common Law and Legislative Power