A/HRC/15/37/Add.4 22. Beginning in the 1970s, the Commonwealth and State governments began to legislate to return lands to indigenous communities and allow claims to other lands, to varying degrees. In 1976 the federal Parliament passed the Aboriginal Land Rights Act, under which Aboriginal peoples in the Northern Territory could own land based on traditional connection. Under the law, more than 50 per cent of Northern Territory lands have been returned to the traditional owners. However, during his visit, the Special Rapporteur heard numerous concerns that amendments to the law, enacted in 2006, increased individualization of communally held indigenous lands and impaired traditional decision-making over indigenous lands, in addition to several other concerns. 23. Notable land rights legislation was also enacted at the State level, in New South Wales and South Australia. But an effort by the Commonwealth Government to establish national land rights legislation was withdrawn in 1985. As a result, the return of lands through legislative enactments has not been achieved throughout the country. 24. In 1992, the High Court handed down the landmark Mabo decision, which rejected the discriminatory doctrine of terra nullius (vacant land) and held that the common law of Australia recognizes continuing title held by indigenous peoples to their traditional lands in accordance with their traditional laws and customs. Although the High Court’s rejection of the doctrine of terra nullius was exemplary, the court also found that, by virtue of the sovereignty of the Crown, native title rights are extinguished by otherwise valid Government acts that are inconsistent with the continued existence of native title rights, such as the grant of freehold or some leasehold estates. 25. The Mabo decision prompted Parliament to pass the Native Title Act of 1993, which sets out the processes for determining native title rights and dealings on native title lands. Despite these significant developments, laws and policies of subsequent Governments, as well as court decisions, have appeared to roll back the advancements associated with the Mabo decision, especially the controversial Native Title Amendments Act of 1998, which was the subject of criticism by the Committee on the Elimination of Racial Discrimination.9 26. The Special Rapporteur received information during his visit that the current Native Title Act framework has serious limitations that impair its ability to protect the native title rights of Aboriginal and Torres Strait Islanders. According to the Government’s own evaluation, the native title process is complex and slow and in need of reform. Among the principal concerns is the onerous requirement that indigenous claimants show proof of continuous connection to the lands claimed, in accordance with their traditional laws and customs, since the time of British acquisition of sovereignty. This is viewed as an unjust requirement, particularly considering the history of policies of Governments that undermined indigenous peoples’ connections to their lands. In addition, the native title process, including the mechanism for facilitating indigenous representation in the process, is under-supported according to informed observers. 27. With respect to mining and other natural resource exploitation on lands subject to native title claims, in several cases indigenous representative bodies or land councils have negotiated agreements that have provided benefits for indigenous traditional owners. Still, the Special Rapporteur heard concerns that indigenous rights are often inadvertently undermined because the terms of such agreements are kept secret, the traditional owners have limited time to negotiate, legal representation is often inadequate and Government involvement does not always align with indigenous interests. Also, concerns have been 9 8 No. 2/2008 (Sydney, Australian Human Rights and Equal Opportunities Commission, 2007), p. 3. See CERD/C/AUS/CO/14. GE.10-13887