Submission re Proposed Amendment to Enable the Historical Extinguishment of Native Title to be Disregarded in Certain Circumstances

The doctrine of extinguishment is a particularly concerning area of native title law that is unquestionably deserving of more critical attention. Extinguishment is one of the key racially discriminatory aspects of native title. Specifically, the circumstances prescribed by the Native Title Act 1993 (Cth) (‘the Act’) in which the extinguishment of native title may be disregarded are among the few attempts to develop a more just legal framework for the recognition and protection of native title; though they remain far too limited in scope.

In this submission to the Attorney-General's Department, AIATSIS raises two key points. Firstly, despite the benefit that would be derived from the inclusion of this provision in the Act, a significant impediment still exists in s 47C(1)(c)(ii), which makes the operation of the provision optional. The provision should apply to all claims over areas of the relevant class. Secondly, this reform should be extended to all Crown land.