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Native Title Limiting Human Rights

Report Finds Human Rights Violations of Indigenous Land Rights

May 1, 2008

The Native Title Report 2007 finds that native title is undermining the exercise and enjoyment of human rights of Aboriginal and Torres Strait Islander peoples.

In March 2008, the Human Rights and Equal Opportunity Commission published the Native Title Report 2007. The report found that human rights violations of Indigenous peoples in Australia are still occurring. In particular, there are great barriers for Indigenous people claiming their native title for land rights, and compensation for extinguishment of native title is extremely difficult to obtain.

The Human Rights and Equal Opportunity Commission (HREOC), established in 1986, is an independent statutory organization reporting to the federal Parliament that works to increase understanding and protection of human rights in Australia and address concerns of human rights violations.

The recent report published by HREOC focused on the operation of the Native Title Act 1993 and its effect on the human rights of Aboriginal and Torres Strait Islander peoples in accordance with Section 209 of the Act.

The Native Title Act and Human Rights for Indigenous Peoples

The Native Title Act 1993 recognises the water and land rights possessed by Indigenous people in Australia under their traditional laws and customs. The National Native Title Tribunal states that native title may exist on:

vacant (unallocated) crown land;
some state forests, national parks and public reserves depending on the effect of state or territory legislation establishing those parks and reserves;
oceans, seas, reefs, lakes and inland waters;
some leases, such as non-exclusive pastoral and agricultural leases, depending on the state or territory legislation they were issued under; and
some land held by or for Aboriginal people or Torres Strait Islanders.

The report also looked at the human rights violations of Aboriginal and Torres Strait Islander peoples in the context of other changes to policy and legislation, made between 1 July 2006 and 30 June 2007, that affect land rights and waters.

Recommended Changes to the Native Title System

25 recommendations were made in the report, though the following two recommendations were listed as overarching:

Recommendation to deal with unscrambling the existing legislative gridlock in native title.
Recommendation proposing a national summit on the native title system.

In addition to changes to the native title system, the report also called for changes to the claims resolution process and to representative Indigenous bodies and respondent bodies. Particular concerns of human rights violations in the native title system included access to Aboriginal and Torres Strait Islander peoples’ human right to compensation and recognition of the human right to the preservation and protection of Indigenous culture.

In September 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous People. The declaration states in Article 11 that Indigenous peoples have the right to practice and revitalise their cultural traditions and customs. The United Nations Human Rights Committee explained that Indigenous culture preservation and protection is important as it works towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.

Native Title Act Fails to Deliver on Human Rights Obligations

The report found that the Act is not delivering on Australia’s human rights obligations and needs a rethink of the native title system to prevent human rights violations. The Native Title Report 2007 stated in the chapter “Where To Native Title” that in Australia’s current legal framework, Indigenous peoples have limited avenues to hold the government to account for access to their human rights. The report suggested that with changes to the Act, the legislation could provide this access to Indigenous peoples where they are related to land rights and waters.

The copyright of the article Native Title Limiting Human Rights in Human Rights Violations is owned by Jodie Martin. Permission to republish Native Title Limiting Human Rights in print or online must be granted by the author in writing.