Article 31: Indigenous peoples have the right to maintain, control, protect and develop
their cultural heritage, traditional knowledge and traditional cultural expressions, as well as
the manifestations of their sciences, technologies and cultures. They also have the right to
maintain, control, protect and develop their intellectual property over such cultural heritage,
traditional knowledge, and traditional cultural expressions.
Article 32: Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other resources.
(e) Previous reports relevant to native title
Over the past three decades, the Commission is on record with respect to the native title
system’s lack of compliance with Australia’s human rights obligations.
Previous Native Title Reports have identified a plethora of flaws in the native title system. They
have highlighted the ongoing need to prioritise reform of the Native Title Act to mitigate the
impacts of colonial dispossession. They have also identified positive developments in the reform
of native title law and practice, most particularly in communities’ abilities to work within and
around the system to achieve the best possible results for our peoples.
There are consistent themes which previous Social Justice Commissioners have highlighted,
followed and reported on. This includes themes such as:
the racially discriminatory legislative provisions resulting from the 1998 amendments
(and arguably present to a lesser degree in the original 1993 legislation)36
the power imbalance between native title claimants and holders, and third parties such as
governments and mining companies37
the onerous connection requirements38
lateral violence and intra-community conflict39
the creative ways that local communities have managed problems and led the development
and implementation of solutions40
the failure of the current land rights, native title, cultural heritage and environmental
protection legislation across the federal and state and territory jurisdictions to protect
Indigenous cultural heritage.
The Native Title Reports have also traditionally included a ‘year in review’ chapter, summarising
developments in the previous 12 months and providing summaries and/or analysis of significant
cases. This Report is focusing instead on deeply listening to the truths of women who have
personally experienced the native title system and elevating their voices. Those voices
frequently refer to and reflect contemporaneous legal developments and I have used some
of those opportunities to expand on those developments. However, there are other excellent
sources for summaries of native title legal developments, most obviously, the Ashurst Native
Title Year in Review41 and the resources available on the AIATSIS website, including the Issues
Papers, Newsletters and the Native Title Law Database.42
There have also been a number of other significant reviews and reports on the native title
system over recent years. These reports and reviews have involved hundreds of submissions
by individuals and organisations.
26
Women in Native Title: Native Title Report 2024