<<2002>>
Chapter 1: Recognition of native title
Introduction = 11
Human Rights Standards relevant to the Recognition of Native Title = 11
Cultural Rights = 12
Equality and Non-Discrimination = 14
Relationship between equality and rights of minorities to protection of their culture = 16
Freedom of Religion and Belief = 17
Self Determination = 18
Human Rights Committee = 19
Committee on Economic, Social and Cultural Rights = 20
The Legal Recognition of Native Title = 21
The Process of Recognition = 22
Sovereignty and the recognition of native title = 23
Native title as a bundle of rights and interests = 27
The Relationship between the Recognition and Extinguishment of Native Title = 29
Observing and Acknowledging Traditional Laws and Customs under NTA s223(1)(a) = 31
Establishing Connection to Country under s223(1)(b) = 35
Interpretation of connection to country in De Rose v South Australia = 37
Interpretation of connection to country in Kennedy v Queensland = 39
Limitations set by the Courts on the Protection of Cultural Knowledge = 40
Recognition by the Common Law under s223(1)(c) = 41
Conclusion = 42
Chapter 2: Extinguishment of Native Title
Extinguishment = 45
Mechanisms of Extinguishment: An Overview = 46
Criteria for Extinguishment not Co-existence = 48
Identifying Rights = 49
Comparing Rights = 51
Finding inconsistency = 54
Finding extinguishment = 55
NTA Prescribes Complete and Partial Extinguishment of Native Title = 60
The confirmation provisions = 61
The validation provisions = 63
Interaction of the validation and confirmation provisions = 65
NTA Fails to Proscribe Extinguishment Resulting from the Application of General Principles = 65
The NTA fails to proscribe the extinguishing effect of historic tenures = 67
Limited compensation for the deprivation of native title rights = 69
Conclusion = 71
Chapter 3: Discrimination and native title
Principles of Discrimination under Australian Law = 74
Application of the Racial Discrimination Act to the Extinguishment of Native Title = 78
Extinguishment and Discrimination under the Native Title Act = 81
Extinguishment of Native Title at International Law = 85
Comparing the Domestic and International Standard of Equality = 87
Chapter 4: Implications of Miriuwung Gajerrong and Wilson v Anderson
Miriuwung Gajerrong = 92
Extinguishment - Native Title in Nature Reserves = 93
Effect of the Racial Discrimination Act 1975 = 94
Nature Reserves in Western Australia = 96
Martu = 96
Gibson Desert native title applicants = 97
A Human Rights Appraisal = 100
The exercise and enjoyment of culture = 100
Self determination = 102
Effective participation = 102
Sustainable Development = 103
Sustainability in Western Australia = 106
Extinguishment and sustainability = 107
The Western Australian Conservation Estate - a Human Rights Framework Approach = 108
Recognition and protection of traditional interests in conservation areas = 109
Conditional terms = 110
Protection of rights and interests = 112
Wilson v Anderson
The Western Lands Act = 113
The effect of land administration in western New South Wales = 116
Extinguishment of Native Title in the Western Division = 118
The Human Rights Implications of Extinguishment in the Western Division = 118
Native title = 120
Enjoyment of culture = 121
Self determination and effective participation = 123
Response to a Human Rights Approach = 126
Chapter 5: Native title: the way forward
Levels of Reform
Mechanisms of Change = 132
Tier one: amending Commonwealth legislation = 132
Tier two: amending State and Territory legislation = 136
Tier three: agreements = 136
Beyond Native Title
Annexures
1. Principles of Discrimination and Native Title = 141
2. Table of Tenures/Interests and their Affect on Native Title = 147
3. Summary of the Validation and Confirmation of Extinguishment Provisions in the Native Title Act 1993 = 155
<<2003>>
Chapter 1: Native title and the right to development = 5
The right to development = 8
Non-discriminatory Development = 10
Participatory Development = 11
Culture and Development = 13
Development that realises economic, social and cultural rights = 15
Self-Determined Development = 18
Sustainable Development = 24
A sustainable development framework for native title negotiations = 28
Sustainable Development Relies on an Effective Process = 28
Sustainable Development Requires Capacity Development = 29
Partnerships = 39
Chapter 2: Native Title Policy - State and Commonwealth profiles
New South Wales = 44
Northern Territory = 49
Queensland = 53
South Australia = 60
Tasmania = 69
Victoria = 71
Western Australia = 77
Commonwealth = 88
Chapter 3: An Evaluation of native title policies throughout Australia
Part 1 - Evaluation of State and Territory policies
Negotiate Not Litigate = 103
The Relationship between States' Native Title Policy and Their Indigenous Policy = 109
Negotiations occur within a legal framework = 117
Negotiations occur within Land Management Framework = 130
The Relationship between Native title and existing Indigenous land regimes = 133
Indigenous participation in policy formulation = 143
Part 2 - Evaluation of Commonwealth native title policy
Commonwealth's participation in native title litigation = 148
Integrating Native Title Policy into Commonwealth's Indigenous Policy = 154
Commonwealth funding of native title system = 155
Chapter 4: Native Title and Agreement Making: a Comparative Study
Canada
The legal and constitutional context = 169
The Comprehensive Land Claims Settlements Process: General outline =174
The Nunavut Comprehensive Land Claim settlement = 176
Comprehensive Agreements - issues and contemporary developments = 177
Treaty-making in British Columbia - an incremental approach = 178
"Dogribs dealt a new deal" = 185
Details of the Agreement = 186
Implications from Canadian Law and Practice for the Australian Situation = 187
The United States of America
The legal context - Indians as sovereign nations = 189
Sovereignty today = 191
International law, US Indian law and the Mabo decision = 192
Native title rights = 193
Policy history and framework = 194
Self-determination era = 195
Significance of Self-Governance = 200
Negotiated settlements = 203
Implications from US law and practice for the Australian situation = 205
Chapter 1: Recognition of native title
Introduction = 11
Human Rights Standards relevant to the Recognition of Native Title = 11
Cultural Rights = 12
Equality and Non-Discrimination = 14
Relationship between equality and rights of minorities to protection of their culture = 16
Freedom of Religion and Belief = 17
Self Determination = 18
Human Rights Committee = 19
Committee on Economic, Social and Cultural Rights = 20
The Legal Recognition of Native Title = 21
The Process of Recognition = 22
Sovereignty and the recognition of native title = 23
Native title as a bundle of rights and interests = 27
The Relationship between the Recognition and Extinguishment of Native Title = 29
Observing and Acknowledging Traditional Laws and Customs under NTA s223(1)(a) = 31
Establishing Connection to Country under s223(1)(b) = 35
Interpretation of connection to country in De Rose v South Australia = 37
Interpretation of connection to country in Kennedy v Queensland = 39
Limitations set by the Courts on the Protection of Cultural Knowledge = 40
Recognition by the Common Law under s223(1)(c) = 41
Conclusion = 42
Chapter 2: Extinguishment of Native Title
Extinguishment = 45
Mechanisms of Extinguishment: An Overview = 46
Criteria for Extinguishment not Co-existence = 48
Identifying Rights = 49
Comparing Rights = 51
Finding inconsistency = 54
Finding extinguishment = 55
NTA Prescribes Complete and Partial Extinguishment of Native Title = 60
The confirmation provisions = 61
The validation provisions = 63
Interaction of the validation and confirmation provisions = 65
NTA Fails to Proscribe Extinguishment Resulting from the Application of General Principles = 65
The NTA fails to proscribe the extinguishing effect of historic tenures = 67
Limited compensation for the deprivation of native title rights = 69
Conclusion = 71
Chapter 3: Discrimination and native title
Principles of Discrimination under Australian Law = 74
Application of the Racial Discrimination Act to the Extinguishment of Native Title = 78
Extinguishment and Discrimination under the Native Title Act = 81
Extinguishment of Native Title at International Law = 85
Comparing the Domestic and International Standard of Equality = 87
Chapter 4: Implications of Miriuwung Gajerrong and Wilson v Anderson
Miriuwung Gajerrong = 92
Extinguishment - Native Title in Nature Reserves = 93
Effect of the Racial Discrimination Act 1975 = 94
Nature Reserves in Western Australia = 96
Martu = 96
Gibson Desert native title applicants = 97
A Human Rights Appraisal = 100
The exercise and enjoyment of culture = 100
Self determination = 102
Effective participation = 102
Sustainable Development = 103
Sustainability in Western Australia = 106
Extinguishment and sustainability = 107
The Western Australian Conservation Estate - a Human Rights Framework Approach = 108
Recognition and protection of traditional interests in conservation areas = 109
Conditional terms = 110
Protection of rights and interests = 112
Wilson v Anderson
The Western Lands Act = 113
The effect of land administration in western New South Wales = 116
Extinguishment of Native Title in the Western Division = 118
The Human Rights Implications of Extinguishment in the Western Division = 118
Native title = 120
Enjoyment of culture = 121
Self determination and effective participation = 123
Response to a Human Rights Approach = 126
Chapter 5: Native title: the way forward
Levels of Reform
Mechanisms of Change = 132
Tier one: amending Commonwealth legislation = 132
Tier two: amending State and Territory legislation = 136
Tier three: agreements = 136
Beyond Native Title
Annexures
1. Principles of Discrimination and Native Title = 141
2. Table of Tenures/Interests and their Affect on Native Title = 147
3. Summary of the Validation and Confirmation of Extinguishment Provisions in the Native Title Act 1993 = 155
<<2003>>
Chapter 1: Native title and the right to development = 5
The right to development = 8
Non-discriminatory Development = 10
Participatory Development = 11
Culture and Development = 13
Development that realises economic, social and cultural rights = 15
Self-Determined Development = 18
Sustainable Development = 24
A sustainable development framework for native title negotiations = 28
Sustainable Development Relies on an Effective Process = 28
Sustainable Development Requires Capacity Development = 29
Partnerships = 39
Chapter 2: Native Title Policy - State and Commonwealth profiles
New South Wales = 44
Northern Territory = 49
Queensland = 53
South Australia = 60
Tasmania = 69
Victoria = 71
Western Australia = 77
Commonwealth = 88
Chapter 3: An Evaluation of native title policies throughout Australia
Part 1 - Evaluation of State and Territory policies
Negotiate Not Litigate = 103
The Relationship between States' Native Title Policy and Their Indigenous Policy = 109
Negotiations occur within a legal framework = 117
Negotiations occur within Land Management Framework = 130
The Relationship between Native title and existing Indigenous land regimes = 133
Indigenous participation in policy formulation = 143
Part 2 - Evaluation of Commonwealth native title policy
Commonwealth's participation in native title litigation = 148
Integrating Native Title Policy into Commonwealth's Indigenous Policy = 154
Commonwealth funding of native title system = 155
Chapter 4: Native Title and Agreement Making: a Comparative Study
Canada
The legal and constitutional context = 169
The Comprehensive Land Claims Settlements Process: General outline =174
The Nunavut Comprehensive Land Claim settlement = 176
Comprehensive Agreements - issues and contemporary developments = 177
Treaty-making in British Columbia - an incremental approach = 178
"Dogribs dealt a new deal" = 185
Details of the Agreement = 186
Implications from Canadian Law and Practice for the Australian Situation = 187
The United States of America
The legal context - Indians as sovereign nations = 189
Sovereignty today = 191
International law, US Indian law and the Mabo decision = 192
Native title rights = 193
Policy history and framework = 194
Self-determination era = 195
Significance of Self-Governance = 200
Negotiated settlements = 203
Implications from US law and practice for the Australian situation = 205