Racial Discrimination Act 1999

the land they claim, it simply gives them the right to a say in the

The law reform process has been effective to a certain extent in achieving just outcomes in regards to native title. This can be seen through both the Eddie Mabo case [1992] and the Yorta Yorta case [2002] as although the cases had been concluded with final decisions, there were still measures that could have been taken, and areas where it could have been improved to achieve a just outcome.

The rights and freedoms of Aboriginals have improved drastically since 1945 with many changes to government policy, cultural views and legal rules to bring about a change from oppression to equality. Unfortunately on the other hand, some rights and freedoms have not improved at all or have even worsened.

The Indian Act was an attempt by the Canadian government to assimilate the aboriginals into the Canadian society through means such as Enfranchisement, the creation of elective band councils, the banning of aboriginals seeking legal help, and through the process of providing the Superintendent General of the Indian Affairs extreme control over the aboriginals, such as allowing the Superintendent to decide who receives certain benefits, during the earlier stages of the Canadian-Indigenous' political interaction. The failure of the Indian Act though only led to more confusion regarding the interaction of Canada and the aboriginals, giving birth to the failed White Paper and the unconstitutional Bill C-31,

Life before the Mabo case was hard, throughout the 19th century white settlers gradually moved the aboriginal people off their land and into reserves. The Indigenous population were forced to experience dispossession and paternalism. In strictly legal terms they did not exist. Discriminatory policies such as the 'White Australia' policy and 'Assimilation' policy were imposed. In September 1901 the Australian government introduced the white Australian policy, trying to ban all non- caucasian people from entering the country. The assimilation approach was outlined in 1937. It presumed that Indigenous Australians could enjoy the same standard of living as white Australians if they were absorbed into white society. An example of a failed case would be the 1963 Bark Petitions, historic Australian documents that were the first traditional

of the Act as the rights and interests of Aboriginal and Torres Straight Islanders observed under

Each example given has also shown how self-determination was and continues to be a major struggle for Aboriginal people. Beginning with the Whitlam government, the Land Rights Act was going to be the national recognition that Aboriginal people had been waiting for, however the swift dismissal of the government and subsequent changes to the bill meant that an uninformed government would dictate claims of Aboriginal land rights. This was continued in the Heritage Protection Act for Western Australia in which no monitoring of abuses of power within the authoritative ministry was assessed; hence damage to heritage sites for the development of industries occurred. Finally the Racial Discrimination Act although making racial discrimination illegal has clearly been violated by the government in the Northern Territory interventions and hence is not valued by Australia despite the international commitments made to recognising Indigenous rights. Although legislation has been introduced to recognise Indigenous rights, there seems to always be a catch. A final reoccurring theme in the legislation discussed is the uninformed views of the non-Indigenous government as decisions are made on behalf of Aboriginal people; hence two major statements were discussed that precisely define Aboriginal self-determination by Aboriginal

The term ‘Native Title’ refers to the right of Indigenous people to their traditional land. In Australia it has a legal significance of the right to an area of land, claimed by people whose ancestors were the original inhabitants of the land before European settlement. Also who can prove that they have had a continuous connection with the land. Native Title is the term given by the High Court to Indigenous land rights by the Court in Mabo and others v State of Queensland (No.2) [1992] HCA 23. The case required

For the native title act to become seen as a law there where particular rules that must stay intact. This peoples right and interests to be possessed and recognised under the traditional laws currently acknowledged

• establish ways in which future dealings affecting native title may proceed, and to set standards for those dealings, including providing certain procedural rights for registered native title claimants and native title holders in relation to acts which affect native title

It is the recognition of Aboriginals having rights and interests in certain land because of their traditional laws and customs. Source 3 is an extract of what the Prime Minister said in December 1933 during the passage of the Native Title Bill through Parliament. It mentions as a nation we take a major step in making a better relationship between the Aboriginal and non-Aboriginal people. It recognises and protects the Aboriginal people’s ownership of the land that is rightfully theirs. This is conveyed when the Prime Minister discusses “and the standing they are owed as victims of grave injustice, a people who have survived the loss of their land and the shattering of their culture.” The act addresses what it will do for the Aboriginal people and how it has majorly changed their freedom as well as their rights. In summary the Act recognises and protects the Native Title, it provides validation of past grants of land that in the past would have been invalid due to the ignorance of the Aboriginal customs and traditions. Also provides a regime in accordance to the Native Title Act. The Mabo Decision was the starting point for a change to Aboriginal rights and freedom, it lead to the Native Title Act which was aiming to achieve reconciliation between the Aboriginal and non-Aboriginal

In March 1961 Executive Order 10925 was signed into order. It stated that government contractors could not discriminated. This established the President's Committee on Equal Employment Opportunity. It was made as a new determination to end job discrimination. In June 1963 the government passes the Equal Pay Act which means that women and men who do the same work must get same pay. In 1964 the Senate passes the Civil Rights Act. It prohibits discrimination in public accommodations, governmental services, and education. This act prohibits discrimination in basically all aspects of employment. In June 1966 EEOC issues Guidelines on discrimination because of religion.

However, the Native Title Act 1993 gives the indigenous Australians very limited rights. There is a requirement that the native title can only exist when the indigenous people can prove a substantial bond or conneciton to their land through their traditional customs. In particular, s 223 of the Native Title Act 1993 (Cth) requries an inquiry to be made as to whether the law and customs can be described as traditional laws and customs. Such threshold is relatively high and hard to prove, and the mere fact that the indigenous people had lived there for a long time is not sufficient to satisfy the

The Indian Act is still considered to be an extremely invasive and historically paternalistic piece of legislation in that it gives the Canadian federal government the authority to regulate important aspects of aboriginal life that were once governed by the aboriginal people. This authority encompasses control over the political system, cultural and traditional practices, possession of land, and even goes as far as setting a criterion to be considered as a status Indian.

Over the past years, Canadian courts have repeatedly urged that aboriginal title conflicts should be resolved through negotiation, rather than litigation. The primary reason being that litigation is costly and time-consuming. For example, the decision for the Delgamuukw case took a duration of thirteen years. Furthermore, litigations that deal with the issue of aboriginal rights and title are “generally narrowly focused” and “ultimately leaves the question [posed about] how aboriginal rights and title apply unwarned.” For instance, the courts of Canada repeatedly failed to come up with a clear definition on the legal scope of Aboriginal rights despite the fact that they have several opportunities to do so. The Delgamuuku case clearly illustrates this when the Court “did not define how aboriginal title applied for the First Nations involved.” Instead, the Court came to the conclusion that a new trial was required, which ultimately will be more expensive and take longer.