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Native title has been endorsed as part of the common law of Australia ever since 1992, and has been synchronized by statute since 1994.

Extracts from this document...

Introduction

Summary The NTA established the National Native Title Tribunal to manage claims to native title and/or compensation and provided for recognized State/Territory Bodies to perform similar functions; it provided for the validation of `past acts' affecting native title which might otherwise be invalid because of native title. Then there is traditional Aboriginal law and custom or, more accurately, the laws and customs of each aboriginal group holding native title. Furthermore, the overall outcome of the amendments will be to moderate the state of affairs where native title may tolerate through the extinguishment provisions and reduce the ability of native title holders to have a meaningful say in respect of developments on native title land which may impair or extinguish their native title rights. Native title is a property right recognized by the Australian legal system and native title holders should be treated equally with other property holders. Introduction Native title has been endorsed as part of the common law of Australia ever since 1992, and has been synchronized by statute since 1994. According to the Aboriginal and Torres Strait Islander Commission, the Native title is the term used to describe the recognition in Australian law of the rights and interest of Aboriginal peoples and Torres Strait Islanders to land and waters under their laws and customs. Furthermore, the native title holders have the right to be compensated if governments acquire their land or waters for future developments1. There are three main types of native title applications (Nation Native Title Tribunal, 2002): * Claimant application An application made by Indigenous people2 for a determination that native title exists in a particular area of land or waters. A native title determination is the legal recognition of the rights and interests held by Indigenous Australians according to traditional laws and customs3. Claimant applications are often also referred to as 'native title claims' or 'native title determination applications'. ...read more.

Middle

overall maintains many beneficial aspects of the Native Title Act 1993, in particular that it gives more protection to native title than does the common law. Many of the provisions of the Native Title Amendment Bill can only be interpreted as providing significant detriment to the Aboriginal holders of native title. The provisions in the Native Title Amendment Bill, which extinguish or impair native title rights of Aboriginal or Torres Strait Islanders, while leaving the property rights of others intact, are clearly contrary to the principles of the Racial Discrimination Act (ATSIC, 1997). There are significant problems with the constitutional validity of the proposed legislation. As well, the NTAB conflicts with the principles of the Racial Discrimination Act (RDA). These problems are of a significant order. At the very least they could result in considerable litigation resulting in delay, cost and uncertainty. At worst they may result in substantial parts of the legislation being found to be invalid. The amendments are in many instances discriminatory and detrimental to indigenous interests. Native title is a property right recognized by the Australian legal system and native title holders should be treated equally with other property holders. Racial Discrimination Act to prevail (Brennan, 1997): (1) For the avoidance of doubt, it is expressly declared to be the intention of the Parliament that the terms of the Racial Discrimination Act shall prevail over this Subdivision. (2) Nothing in this Subdivision shall be taken to authorize any conduct, whether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act. "The government will not oppose this amendment. In doing so, however, I want to note very particularly that the government does not consider that the amending Act ever was, or is, in conflict with the Racial Discrimination Act." said Senator Grant Tambling, Parliamentary Secretary to the Minister for Social Security. An extensive rolling back of the Racial Discrimination Act contained in the Native Title Amendment Bill cannot be seen to either reflect the agreement of indigenous representatives or be part of legislation, which on balance is beneficial to native titleholders. ...read more.

Conclusion

Native Title Report 2002, Sydney. Minchin, Senator N. (1997). Federal Government's Response to the Wik Decision. The Ten Point Plan. Neate, G. (2001). Indigenous Land Use Agreements: Some legal issues. Native Title Forum: Brisbane. Nation Native Title Tribunal (2002). Commonwealth of Australia. Outline Towards a More Workable Native Title Act: An Outline of Proposed Amendments (1996). Published by the Commonwealth. Van Hattem, P. (1997). Demystifying Native Title. Journal of Law: Murdoch University. Working Draft, Native Title Amendment Bill 1997 (NTAB) Wik Task Force, Department of Prime Minister and Cabinet, 1997. 1 Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland (2001) FCA 414 at paragraph 49; see also paragraph 92 per Dowsitt J; and Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 at 68, 173 ALR 159 at 166 per Heerey, Drummond and Emmett JJ. 2 Ward v Western Australia (1998) 159 ALR 483 at 639. 3 Smith v Western Australia (2000) 104 FCR 494. 4 An "intermediate period act" is a certain type of act that took place between 1 January 1994 (when the Native Title Act commenced to operate) and 23 December 1996 (when the High Court delivered judgment in Wik People v Queensland): Native Title Act 1993 s 232A. 5 Wilson vs. Darling Island Stevedoring and Lighterage Co Ltd. (1956) 95 CLR 43 per Kitto J at 80. 6 Harris vs. Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 at 71, 173 ALR 159 at 169 paragraph [39] per Heerey, Drummond and Emmett JJ. 7Act seems to allow the agreement to bind continuously the members of the native title group for lengthy periods. Power Co Ltd v Gore District Council (1997) 1NZLR 537 8 Smith v Western Australia (2000) 104 FCR 494 at p 497. 9 Minister for Aboriginal Affairs v Western Australia (1996) 67 FCR 40 at 53, 149 ALR 78 at 90 per Black CJ, Burchett and Kiefel JJ. 10 Congoo v State of Queensland (2001) FCA 868. ?? ?? ?? ?? Law 100 Huzaifa S F Abbas Native Title Amendment Bill Std # 2193759 - 1 - ...read more.

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