THIRD MINORITY REPORT ON THE PARLIAMENTARY JOINT COMMITTEE ON NATIVE
TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
Chapter 1: Executive Summary
Minority Recommendations
Constitution
Racial Discrimination Act
Validation of Intermediate Period Acts
Confirmation of Extinguishment
Indigenous Land Use Agreements
Future Acts
Seas, Water and Airspace
The Right to Negotiate
Statutory Access to Pastoral Leases
Sunset Clause
Management of Applications
Representative Bodies
Chapter 2: Introduction
Background
Mabo v. Queensland [No. 2]
Native Title Act 1993 (Cwlth)
Amending the Native Title Act 1993
The Wik Peoples v. The State of Queensland & Ors
Implications of the Wik Decision
The Aftermath of the Wik Decision
Revisiting 1993
The Native Title Amendment Bill 1997 ("the Bill")
Misunderstanding, Misinformation and the Need for Education
Chapter 3: The Constitution
The Races Power at Federation
The 1967 Referendum
The High Court and the Races Power
Just Terms Compensation
Moral Imperatives and the Native Title Amendment Bill 1997
Recommendations
Chapter 4: Racial Discrimination Act
Racial Discrimination Act 1975
Background
Government Promises
The Native Title Amendment Bill 1997 (the Bill)
Recommendation
Chapter 5: Validation of Intermediate Period Acts
Summary of Provision
Validation of Intermediate Period Acts and its Effect
Effect of Validation
Compensation
Commentary
Government Justification
Extinguishment of Native Title
Policy
Recommendations
Chapter 6: Confirmation of Extinguishment of Native
Title
Summary of Provisions
Extinguishment of Native Title by Valid or Validated Acts
Previous Exclusive Possession Acts
Effect of Previous Exclusive Possession Acts
Previous Non-Exclusive Possession Acts
Compensation for Extinguishment by Previous Exclusive Possession and
Previous Non-exclusive Possession Acts
Commentary
Government's Justification
Defects in the Plan
How the Bill Extinguishes Native Title
Extinguishment and the Racial Discrimination Act 1975
Compensation
Just Terms
Recommendations
Chapter 7: Indigenous Land Use Agreements
Summary of Provisions
Introduction
Parties to ILUAs
Content of ILUAs
Registration of ILUAs
Effect of Registration of ILUAs
Commentary
Support for ILUAs
Benefits of Agreements
Pastoral and Industry Concerns
Examples of Agreements
Undermining of Agreements
Government Participation and Support
Recommendations
Chapter 8: Future Acts and Native Title
Summary of Provisions
Subdivision A - Overview of Division 3
Section 24FA Protection
Future Acts and Primary Production
Acts Permitting Off-Lease Primary Production Activities
Granting Rights to Third Parties on Non-exclusive Agricultural or Pastoral
Leases
Acts within Towns and Cities
Low Impact Future Acts
Commentary
Primary Production Activities
Acts Permitting Off-Lease Primary Production Activities
Granting Rights to Third Parties on Pastoral Leases
Towns and Cities
Recommendations
Chapter 9: Seas, Water and Airspace
Chapter 10: The Right to Negotiate
Summary of Provisions
Where The Right To Negotiate Applies Under The Bill
The Right to Negotiate Process Under the Bill
Notice
Negotiation Procedure
Broader Ministerial Intervention
Exception to the Right to Negotiate: State/Territory Provisions
New Criteria for Arbitral Bodies
Commentary
Why a Special Right to Negotiate for Native Titleholders?
Exploding a Myth
The Bill's Major Changes to the Right to Negotiate
A Mining Industry Proposal
Recommendations
Chapter 11: Statutory Access Rights on Pastoral
Leases
Summary of Provisions
Commentary
Registration Test
Physical Access at 23 December 1997
Some Examples of Denial of Access
Suspension of Native Title Rights
Pastoral Concerns
Recommendations
Chapter 12: Sunset Clause
Chapter 13: Management of Applications
Summary of Provisions
Native Title Determination Applications and Compensation Applications
Strike Out Motions
Information and Material Required
Operations of The Federal Court
Operations of the National Native Title Tribunal
Mediation
Registration Test and Registration Procedures
Equivalent State and Territory Bodies
Commentary
Federal Court
National Native Title Tribunal
Registration Test
Equivalent State or Territory Bodies
Recommendations
Chapter 14: Representative Aboriginal/Torres
Strait Islander Bodies
Summary of Provision
Re-recognition of Native Title Representative Bodies and the "New
Regime"
Finance
Ministerial Intervention
Commentary
Functions and Powers of Native Title Representative Bodies
Financial and Accountability Requirements
Inappropriate Ministerial Involvement
Re-recognition
Conduct of Directors and Executive Officers
Recommendations
APPENDICES [Not included on-line. Please contact the secretariat
to obtain copies if required]
Appendix 1
Appendix 2
Australian Law Reform Commission Draft Comments on the Native Title
Amendment Bill 1997, 22 September 1997
Appendix 3
J. Clarke; Submission on the Native Title Amendment Bill 1997(Cth),
16 October 1997
Appendix 4
J. Fajgenbaum and M. Moshinsky, Joint Memorandum of Advice, 24 September
1997
Appendix 5
R. Castan AM QC, Submission to the Parliamentary Joint Committee on
Native Title and the Aboriginal and Torres Strait Islander Land Fund,
17 October 1997
Appendix 6
R. Castan AM QC, Supplementary Submission to the Parliamentary Joint
Committee on Native Title, 20 October 1997
Appendix 6.1
New South Wales Bar Association, Submission on the Native Title Amendment
Bill 1997, 20 October 1997
Appendix 6.2
J. Basten QC, Submission to the Senate Legal and Constitutional Legislation
Committee, 21 October 1997
Appendix 7
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