Native Title Report 2000: Appendix 1
Appendix 1
Submission of the Aboriginal
and Torres Strait Islander Social Justice Commissioner to the Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund
Inquiry into:
(a) whether the finding of
the Committee on the Elimination of Racial Discrimination (CERD Committee)
that the Native Title Amendment Act 1998 is inconsistent with Australia's
international legal obligations, in particular the Convention on the
Elimination of all Forms of Racial Discrimination, is sustainable on
the weight of informed opinion;(b) what amendments are required
to the Act, and what processes of consultation must be followed in effecting
those amendments, to ensure that Australia's international obligations
are complied with; and(c) whether dialogue with
the CERD Committee on the Act would assist in establishing a better
informed basis for amendment to the Act.
(a) The findings of the CERD
Committee
Introduction
The Committee on the Elimination
of Racial Discrimination (the CERD Committee), acting on its early warning
and urgent action procedure, considered the amended Native Title Act 1993
(Cth) (NTA) in March 1999. Australia provided both written and oral submissions
to the Committee arguing that the Act did not breach Australia's obligations
under the International Convention on the Elimination of All Forms of
Racial Discrimination (CERD). Representatives of the Australian government
appeared before the CERD Committee in Geneva on 12 and 15 March 1999 to
present the Government's position. On 18 March 1999, the Committee found
that significant amendments to the NTA were contrary to Australia's obligations
under CERD. Having considered these amendments the Committee expressed
concern that the amended NTA, taken as a whole, was incompatible with
Australia's international obligations. The Committee also found that,
on the basis that the amendments were enacted without obtaining the informed
consent of Indigenous people, Article 5 of CERD was also contravened.
The March findings were reaffirmed at the Committee's fifty-fifth session
on 16 August 1999.
The Human Rights
and Equal Opportunity Commission made submissions to the CERD Committee
in March 1999 and August 1999 copies of which are annexed hereto and marked
A and B respectively. These submissions are consistent with the CERD Committee's
findings, expressed above. The Aboriginal and Torres Strait Islander Social
justice Commissioner advised the government in his 1997 Native Title Report
that the amended NTA breached Australia's obligations under CERD.(1)
He also criticised the amendments to the right to negotiate as a violation
of CERD in the 1996 Native Title Report.(2) Thus,
in relation to the first term of this Inquiry as to whether the CERD decision
is sustainable on the weight of informed opinion, my position clearly
is that the CERD decision is sustainable. Before dealing with the decision
itself and the basis of that decision it is helpful to set out the background
to the decision and the committee that made it.
Background; the CERD Committee
and its decision to adopt the 'early warning' procedure in relation to
the amendments to the NTA
The CERD Committee
was the first human rights committee established within the United Nations
structure. It consists of 'eighteen experts of high moral standing and
acknowledged impartiality'.(3) Members are nominated
by States Parties to the CERD Committee (4) and elected
through a secret ballot. To ensure their independence, members serve in
a personal capacity and cannot be dismissed during their term. In order
to ensure that the Committee is representative, membership is intended
to be equitably distributed according to 'geographical distribution and
to the representation of the different forms of civilisation as well as
of the principle legal systems'.(5)
The CERD Committee
monitors and reviews the actions of States who are signatories to the
CERD to ensure that they comply with their obligations under the Convention.(6)
The Committee introduced the early warning and urgent action procedure
in 1993 to improve mechanisms by which it could scrutinise the compliance
of States Parties with the Convention, and to ensure greater accountability
of States Parties.
The need for such
mechanisms was identified by the then Secretary-General of the United
Nations, and the Security Council in 1992. The Security Council observed
in 1992 that international peace and security is not assured solely by
the absence of military conflicts among States. It is also influenced
by non-military sources of instability in the economic, social, humanitarian
and ecological fields.(7) The Secretary-General noted
that the stability of States would be enhanced by the commitment to human
rights standards, with a special sensitivity to the rights of minorities,
and by increasing the effectiveness of the United Nations human rights
system.(8)
On 11 August 1998,
acting under its early warning and urgent action procedure, the CERD Committee
requested Australia to provide it with information relating to the amendments
to the Native Title Act 1993 (Cth) (NTA), any changes of policy in relation
to Aboriginal land rights, and the functions of the Aboriginal and Torres
Strait Islander Social Justice Commissioner.(9) The
request was as a result of the concern of members of the Committee that
the situation in Australia 'was clearly deteriorating'
(10) since Australia's previous appearance before the Committee in
1994.
Australia is the
first 'western' nation to be called to account under the early warning
procedure. Other countries that were placed under the procedure at the
same time as Australia were the Czech Republic, the Congo, Rwanda, Sudan
and Yugoslavia. Countries previously considered under the procedure include
Papua New Guinea, Burundi, Israel, Mexico, Algeria, Croatia, Bosnia and
Herzegovina.
The Committee's decision
to consider the situation in Australia under the procedure is highly significant.
It indicates that the Committee was concerned that the situation in Australia
might involve serious violations of Australia's obligations under CERD,
which ought to be given immediate consideration. As one Committee member
commented, 'the issues in question were so important that they deserved
to be dealt with in their own right, and not merely in terms of Australia's
regular reporting obligations under the Convention'.(11)
The CERD Committee's Decision
of 18 March 1999 on Australia
On 18 March 1999
the CERD Committee delivered its concluding observations on Australia,
which included the following.
3. The Committee recognizes
that within the broad range of discriminatory practices that have long
been directed against Australia's Aboriginal and Torres Strait Islander
peoples, the effects of Australia's racially discriminatory land practices
have endured as an acute impairment of the rights of Australia's indigenous
communities.4. The Committee recognizes
further that the land rights of indigenous peoples are unique and encompass
a traditional and cultural identification of the indigenous peoples
with their land that has been generally recognized.5. In its last Concluding
Observations on the previous report of Australia. the Committee welcomed,
further, the Native Title Act of 1993, which provided a framework for
the continued recognition of indigenous land rights following the precedent
established in the Mabo case.6. The Committee, having
considered a series of new amendments to the Native Title Act, as adopted
in 1998, expresses concern over the compatibility of the Native Title
Act, as currently amended, with the State Party's international obligations
under the Convention. While the original Native Title Act recognizes
and seeks to protect indigenous title, provisions that extinguish or
impair the exercise of indigenous title rights and interests pervade
the amended Act. While the original 1993 Native Title Act was delicately
balanced between the rights of indigenous and non-indigenous title holders,
the amended Act appears to create legal certainty for governments and
third parties at the expense of indigenous title.7. The Committee notes, in
particular, four specific provisions that discriminate against indigenous
title-holders under the newly amended Act. These include: the Act's
"validation" provisions; the "confirmation of extinguishment" provisions;
the primary production upgrade provisions; and restrictions concerning
the right of indigenous title holders to negotiate non-indigenous land
uses.8. These provisions raise
concerns that the amended Act appears to wind back the protections of
indigenous title offered in the Mabo decision of the High Court of Australia
and the 1993 Native Title Act. As such, the amended Act cannot be considered
to be a special measure within the meaning of Articles 1(4) and 2(2)
of the Convention and raises concerns about the State Party's compliance
with Articles 2 and 5 of the Convention.9. The lack of effective
participation by indigenous communities in the formulation of the amendments
also raises concerns with respect to the State Party's compliance with
its obligations under Article 5(c) of the Convention.11. The Committee calls on
the State Party to address these concerns as a matter of utmost urgency.
Most importantly, in conformity with the Committee's General Recommendation
XXIII concerning Indigenous Peoples, the Committee urges the State Party
to suspend implementation of the 1998 amendments and re-open discussions
with the representatives of the Aboriginal and Torres Strait Islander
peoples with a view to finding solutions acceptable to the indigenous
peoples and which would comply with Australia's obligations under the
Convention.12. In light of the urgency
and fundamental importance of these matters, and taking into account
the willingness expressed by the State Party to continue the dialogue
with the Committee over these provisions, the Committee decides to keep
this matter on its agenda under its early warning and urgent action
procedures to be reviewed again at its fifty-fifth session.(12)
In summary the Committee expressed
concern that:
- Provisions that extinguish
or impair the exercise of native title pervade the amended NTA. The
Committee considered that the amended Act favours non-Indigenous interests
at the expense of Indigenous title, and consequently, does not strike
an appropriate balance between Indigenous and non-Indigenous rights;(13) - In particular, the validation,
confirmation, and primary production upgrade provisions, and restrictions
and exceptions to the right to negotiate, discriminate against native
title holders.(14) In doing so, these provisions
raise concerns that Australia is not acting in compliance with its obligations
under Articles 2 and 5 of the Convention (the non-discrimination principle
and the requirement to provide equality before the law);(15) - The amended NTA cannot
be characterised as a special measure under Articles 1(4) or 2(2) of
the Convention;(16) and - The lack of 'effective participation'
of Indigenous people in the formulation of the amended Act was a breach
of Australia's obligations under Article 5(c) of the Convention and
contrary to the Committee's General Recommendation XXIII on Indigenous
People.(17)
The Committee called
on Australia to address their concerns 'as a matter of utmost urgency'.(18)
They urged the Government to immediately suspend implementation of
the amendments to the NTA and re-open discussions with Indigenous representatives
'with a view to finding solutions acceptable to the indigenous peoples
and which would comply with Australia's obligations under the Convention'.(19)
The Committee reaffirmed
its decision at its fifty-fifth session on 16 August 1999. The Committee
stated that it was:
prompted by its serious concern that, after having observed
and welcomed over a period of time a progressive implementation of the
Convention in relation to the land rights of indigenous peoples in Australia,
the envisaged changes in policy as to the exercise of these rights risked
creating an acute impairment of the rights thus recognized to the Australian
indigenous communities.(20)
The Committee also
decided to 'continue consideration of this matter together with the Tenth,
Eleventh and Twelfth period reports of the State party, during its fifty-sixth
session in March 2000'.(21)
The findings of
the CERD Committee are highly significant. They vindicate the position
maintained over the past two and a half years by many Indigenous organisations,
human rights advocates, lawyers and community leaders that the amended
NTA is racially discriminatory. They provide international recognition
of the human rights of native titleholders.
The basis of the Committee's
decision
Australia has an
obligation under Articles 2 and 5 of CERD to treat all people equally
and in a non-discriminatory manner.
i) Article 2 of CERD places
an obligation on States Parties to the Convention not to discriminate,
as well as to prevent others within their jurisdiction from discriminating.ii) Article 5 requires
that, in accordance with the principle of effective participation, States
guarantee the right of everyone to equality before the law, including
in relation to political rights, the right to own property (individually
or communally), the right to inherit and the right to equal participation
in cultural activities.(22) The principle of effective
participation is set out in General Recommendation XXIII of the CERD
Committee and requires that the informed consent of Indigenous people
be obtained in decisions that affect them,
The Committee found
that Australia had breached these obligations on the following bases;
i) The principles of non-discrimination
and equality
The CERD Committee
adopted an approach to equality which requires States to redress past
racially discriminatory practices.(23) States must
also give equal respect and protection to different cultural values and
ensure these values are protected.
In contrast to this
substantive approach to equality is the formal equality approach which
merely requires that everyone be treated in an identical manner regardless
of such differences.
The substantive
approach to racial equality requires that differences be treated differently
if such treatment seeks to overcome past discrimination or to protect
cultural values.
In its oral submission
to the CERD Committee in March 1999 and in its submissions before this
Committee on 9 March 2000, the government's representatives have stated
that the standard of equality adopted in CERD is one of substantive equality.
More recently, the concept of substantive equality has been
used to consider issues of equality and non-discrimination in international
law. In relation to substantive equality, the concept encompasses treating
like groups or like things alike, but treating different groups differently,
in accordance with the differences between them, provided that the differences
you focus on are ones that are legitimate ones to focus on in relation
to the objects of the convention, and provided that the different treatment
is proportional to the nature of the difference between the groups. We
speak in the submission about the application of those concepts to the
situation of native title.(24)
This is consistent
with the definition of racial discrimination in Article 1 of the Convention
referring to a distinction on the basis of race 'which has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights.' It is also consistent with the
Committee's General Recommendation XIV which excludes from the definition
of discrimination, differential treatment which is consistent with the
objectives and purposes of the Convention.(25)
A differentiation of treatment will not constitute discrimination
if the criteria for such differentiation, judged against the objectives
and purposes of the Convention, are legitimate. In seeking to determine
whether an action has an effect contrary to the Convention, it (the Committee)
will look to see whether that action has an unjustifiable disparate impact
upon a group distinguished by race.(26)
A special measure
is defined under Articles 1(4) or 2(2) of the Convention. Special measures
would be legitimate differential treatment, as would measures aimed at
recognising and protecting the traditions and customs of Indigenous people.
The distinction between these two types of differential treatment is significant.
I indicated to the
Joint Parliamentary Committee in response to a series of questions put
to me when I appeared before it on 22 February 2000 that the amended NTA
as a whole could not be considered a special measure but to the extent
that the amended NTA recognises and protects the traditions and customs
of Indigenous people then this recognition and protection was a non-discriminatory
differential treatment of Indigenous people. This latter description arises
from the High Court's identification of the original NTA in Western Australia
v Commonwealth (1995) 183 CLR 373 as either a special measure or 'a law
which, although it makes racial distinctions, is not racially discriminatory
so as to offend the Racial Discrimination Act or the International Convention
on the Elimination of All Forms of Discrimination' (p483 -484).
This matter was also
dealt with by the Acting Social Justice Commissioner in her submission
to the CERD Committee in March 1999.
Native title cannot be described as a special measure. It is
not a remedial measure taken for the purpose of overcoming the effect
of historical patterns of racism. Native title does lead to the maintenance
of separate rights for Indigenous people. Native title is not a temporary
measure which can be removed once it objective has been achieved. The
recognition of native title involves accepting a form of land title that
derives from the traditional laws and customs of indigenous people. The
protection of native title must reflect the substance of those traditional
rights and customs. Different rights require different forms of protection
to achieve substantive equality of treatment.(27)
The significance
of the distinction between differential treatment which can be characterised
as a special measure and differential treatment that arises from the unique
cultural identity of a distinct cultural group was illustrated during
the parliamentary and public debates over the amendments to the NTA and
in particular over the amendments which sought to remove the right to
negotiate from the Act. Having identified the right to negotiate as a
special measure the government argued that amendments which remove a special
measure are not discriminatory because they merely take away an additional
right extended to Indigenous people. By removing the right to negotiate
it was argued that Aboriginal people are put in the same position as other
titleholders and are thus not discriminated against. It is also suggested
in the government's written submission to the Joint Parliamentary Committee
that the removal of a special measure is permissible at international
law and does not require the consent of Indigenous people.
There is no authority at international law however to suggest
that the consent of the racial group that is to benefit from the special
measure is necessary... Nor is there authority to suggest that amendment
of a special measure requires consent.(28)
The Acting Social
Justice Commissioner dealt with these arguments in Chapter 3 of the 1998
Native Title Report. .. .. In summary, her response to these arguments
was twofold. Firstly she argued that the right to negotiate was not a
special measure but was a reflection, albeit a poor one, of the traditional
mechanisms used by Indigenous people to control access to their land.
Moreover a statutory measure, like the right to negotiate, which protects
the customs of Indigenous people from the devastating effect of mining
and other developments is not a special measure but a recognition and
protection of cultural difference. It is not a gift to Indigenous people
from government but arises from the identity of Indigenous people themselves
and the recognition that this identity is entitled to protection.
Secondly she argued
that even if it is assumed that the right to negotiate is a special measure
its removal cannot be justified by reference to a notion of equality.
Where the basis of the implementation of a special measure is to redress
the inequalities created by past discriminatory practices and enable Indigenous
people to enjoy their human rights equally, the removal of such a measure
can only be justified where such equality has in fact been achieved. This
argument is supported by the wording of Article 1(4) of CERD.
Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring
such protection as may be necessary in order to ensure groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall
not be deemed racial discrimination, provided however, that such measures
do not, as a consequence, lead to the maintenance of separate rights from
different racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved.
The CERD Committee
has recognised that State Parties have a positive obligation to recognise
and protect Indigenous cultures and identity.
Through General Recommendation
XXIII the Committee has recognised that the culture of Indigenous peoples
worldwide needs to be recognised and protected against ongoing discrimination:
...Indigenous peoples have been, and are still being, discriminated
against, deprived of their human rights and fundamental freedoms and in
particular that they have lost their land and resources. Consequently
the preservation of their culture and their historical identity has been
and still is jeopardised.(29)
The Committee has
called on States to:
a) recognize and respect
Indigenous distinct culture, history, language and way of life as an
enrichment of the State's cultural identity and to promote its preservation;b) ensure that members of
Indigenous peoples are free and equal in dignity and rights and free
from any discrimination, in particular that based on Indigenous identity;c) provide Indigenous peoples
with conditions allowing for a sustainable economic and social development
compatible with their cultural characteristics;d) ensure that members of
Indigenous peoples have equal rights in respect of effective participation
in public life, and that no decisions directly relating to their rights
and interests are taken without their informed consent;e) ensure that Indigenous
communities can exercise their rights to practice and revitalize their
cultural traditions and customs, to preserve and to practice their languages.(30)
The Committee especially
called on States Parties:
to recognize and protect the rights of Indigenous peoples to
own, develop, control and use their communal lands, territories and resources.(31)
The Committee's
decision of March 1999 reflects these factors. Paragraph 4 of the decision
states:
4. The Committee recognizes. that the land rights of indigenous
peoples are unique and encompass a traditional and cultural identification
of the indigenous peoples with their land...
Members of the Committee
also made it clear that the Committee 'links the obligation of non-discriminatory
respect for Indigenous culture to the question of control over land'.(32)
One member of the Committee stated the issue as follows:
to what extent were the traditional rights of indigenous peoples
affected by the provisions of the Act? That was the Committee's starting
point: the special relationship between the Aboriginals, their culture
and way of life, and the land. Native property rights should not simply
be given the same protection as any other property rights but should be
subject to special protection measures; anything else was tantamount to
not protecting them.(33)
This influenced
the Committee's findings in paragraph 7 of the Decision that the amended
NTA, particularly those provisions relating to confirmation, validation,
primary production upgrades and changes to the right to negotiate, raised
concerns about Australia's compliance with Articles 2 and 5 of the Convention.
A substantive equality approach
to native title
The test of equality
which the government applies to the amended NTA is whether the rights
of Indigenous titleholders are afforded the same protection as non-Indigenous
interests. This test should not be confused with the question of whether
the protective mechanisms applied to Indigenous interests are the same
as the protective mechanisms applied to non-Indigenous interests. Rather
the test is whether the two sets of interests are equally protected.
Further, the committee's view appears to be that the assessment
of the balance should be undertaken by reference only to a comparison
between the interests of indigenous people under the 1993 act when compared
with the interests of indigenous people under the amendment act. The government's
view is that approach is wrong; that, rather, the assessment should be
between the position of indigenous interests on the one hand and non-indigenous
interests on the other, and that applying the law as described by Ms Leon,
that where analogous existing rights exist, the protection given to indigenous
rights should be comparable to those of existing interests. Given the
different nature of native title interests from other interests, the protection
will not always be the same, but on balance, it should be comparable.
The fact that the provisions under the act as amended may be different
in some cases to the provision in the 1993 act cannot itself amount to
discrimination.(34)
There is no dispute
by the Aboriginal and Torres Strait Islander Social Justice Commissioner
that the test proposed by the government is consistent with a substantive
approach to equality. What is disputed is that the amended NTA satisfies
the test of equal protection.
Application of the principles
of equality to the amended Native Title Act
Whether the amended
NTA provides the same level of protection to native title as is provided
to non-Indigenous title holders is most clearly discerned where the full
enjoyment of native title and the full enjoyment of non-Indigenous interests
are inconsistent. What an analysis of the amended NTA reveals is that,
in every situation in which there is an inconsistency between Indigenous
interests and non-Indigenous interests, the Act provides that non-Indigenous
interests will prevail. The four sets of provisions which the Committee
identified in paragraphs 7 & 8 as a cause for concern are precisely those
provisions in the Act which deal with such an inconsistency.(35)
In relation to the
validation provisions, the inconsistency is between the legal rights of
Indigenous title holders and the enjoyment by non-Indigenous titleholders
of rights illegally obtained (either because of the invalidity of past
acts under the Racial Discrimination Act, 1975, (Cth) or because of the
invalidity of intermediate period acts, under the original NTA). In relation
to the confirmation provisions the inconsistency is between Indigenous
interests on the one hand and non-Indigenous interests specified by way
of a schedule to the Act or referred to generically as either 'exclusive
possession acts' or 'non-exclusive possession acts'. In relation to the
primary production upgrade provisions, the inconsistency is between the
exercise of native title rights and the carrying out of a range of activities
that the leaseholder may wish to pursue, in addition to the rights granted
under the lease. In relation to the right to negotiate provisions the
inconsistency is principally between the exercise of native title rights
and the interests of miners to explore and exploit the land. They also
involve a conflict between native title holders and third parties benefiting
from the compulsory acquisition of native title land.
In each of these
instances where an inconsistency or potential inconsistency exists between
the full enjoyment of Indigenous interests and the full enjoyment of non-Indigenous
interests, the amended NTA ensures that non-Indigenous interests prevail
over the Indigenous interests. The CERD Committee recognised the failure
of the Act to give native title holders equal protection to that provided
to non-Indigenous interests.
While the original Native Title Act recognizes and seeks to
protect indigenous title, provisions that extinguish or impair the exercise
of indigenous title rights and interests pervade the amended Act. While
the original 1993 Native Title Act was delicately balanced between the
rights of indigenous and non-indigenous title holders, the amended Act
appears to create legal certainty for governments and third parties at
the expense of indigenous title.(36)
The subordination
of native title interests to non-Indigenous interests whenever a conflict
arises cannot pass the government's own test of equal protection.
The government's arguments
against a finding of discrimination
The government's
response to the Committee's decision that the amended NTA is discriminatory
is fourfold. Firstly, it maintains that the purpose behind the amendments
to the NTA are legitimate and that insufficient attention was paid by
the Committee to the reasonableness of the government's objectives and
the proportionate means by which these objectives were achieved.(37)
Secondly, it maintains that the Committee's analysis fails to take account
of the range of measures contained in the whole of the act that 'purport
to treat native title in a way that is different or takes account of the
special nature of native title'.(38) Instead it focuses
on the amendments to the original NTA and in particular the four sets
of provisions which prefer non-Indigenous interests over Indigenous ones.
Thirdly, and particularly in relation to the NTA's response to past acts
of dispossession, it maintains that the Committee failed to allow the
government a margin of appreciation in meeting its obligations under the
Act.(39) Finally it argues that, to the extent that
the Act merely confirms past acts of dispossession, as it does through
the validation and confirmation provisions, this is not discriminatory
under CERD.
1. In relation to the first
point, the government's representative emphasised to the CERD Committee
when he appeared before it in March 1999 that the government's purpose
in enacting the validation, confirmation and primary production upgrade
provisions as well as the amendments to the right to negotiate provisions
was legitimate in that it sought to balance a range of interests affected
by the legislation using proportionate means to do so.Of course Australia
recognises that in determining if a particular case complies with CERD
it is important to have to regard that decisions regarding treatment
are not arbitrary. In other words, they must have an objectively justifiable
aim and proportionate means. And, that's another reason why in my introductory
remarks I went to some length to explain the objective, the justifiable
objective that some of the measures in the Native Title Amendment Act
seek to meet and the proportionate means by which they seek to meet
them.Now I understand from some of your comments that you're uncomfortable
with some of those; both as to the objectives and as to the proportionate
means and again I'll come back to that when we look at the particular
areas of concern that the committee has expressed in relation to the
Amendment Act but suffice it to say at this stage that Australia is
aware of the need to have objectively justifiable aims and proportionate
means in dealing with this issue.(40)The justifiable aims proposed
in relation to the amendments included the need to provide certainty
to non-Indigenous and Indigenous titleholders; the need to deal with
the High Court's decision in the Wik case; and the need to balance the
interests of all the stakeholders in the legislation, including farmers,
miners, developers, governments, and native title holders.The government's
argument that where particular provisions within the Act have an objectively
justifiable purpose or adopt proportionate means then they are not discriminatory
arises from their interpretation of the CERD Committee's General Recommendation
XIV quoted above. In my view General Recommendation XIV makes it clear
that where differential treatment on the basis of race addresses the
disadvantage suffered by a particular racial group as a result of discriminatory
practices or where the cultural identity of a particular racial group
is recognised and protected by differential treatment, such beneficial
measures will not constitute discrimination within the Convention. The
purpose of General Recommendation XIV is to rebut the argument, not
unfamiliar in domestic deliberations within Australia on the meaning
of discrimination in the Racial Discrimination Act, that all differential
treatment on the basis of race is discriminatory. The definition of
discrimination under General Recommendation XIV allows differential
treatment if its objectives and purposes are consistent with those of
the Convention.
In seeking to determine
whether an action has an effect contrary to the Convention, it (the
Committee) will look to see whether that action has an unjustifiable
disparate impact upon a group distinguished by race.(41)
General Recommendation XIV is not a means by which the implementation
of government policy which results in a negative disparate impact on a
particular racial group can, nonetheless, be acceptable if it is a reasonable
in all the circumstances and adopts proportionate means. Nor does General
Recommendation XIV provide a margin of appreciation to States in meeting
their obligations under the Convention. Its purpose is to ensure that
measures which do recognise and protect cultural identity and practices
are not classified as discrimination merely because they treat people
differently. It cannot be said, and the government has not demonstrated
in either its submissions to the CERD Committee or its submissions to
the present Committee, that the disparate impact of the four abovementioned
sets of provisions can be justified by reference to the aims of CERD ie
to overcome racial discrimination and to protect the cultural identity
of Indigenous people.
2. The government's second
point of rebuttal against the CERD Committee's decision is that the
Committee failed to take account of the range of measures contained
in the whole of the act that 'purport to treat native title in a way
that is different or takes account of the special nature of native title'.(42)
Rather the Committee merely focused on the way in which the original
NTA had been amended as a result of the Native Title Amendment Act,
1998, (Cth). While I do not intend to deal with each of the differential
measures identified in the government's submission as 'provisions that
recognise the unique nature of native title rights and go beyond the
requirements of formal equality' (43) it is important
to establish the criterion by which these measures can be assessed against
Australia's international obligations under CERD.As discussed above, the
fundamental criterion put forward by the CERD Committee in General Recommendation
XIV as to whether differential treatment complies with CERD is whether
its objectives and purposes are consistent with the aims of the Convention;
namely overcoming racial discrimination and protecting cultural identity.Many of the measures identified
by the government as responding to the unique nature of native title
rights, fail to address this criterion. The majority of the measures
identified in the government's submission provide the machinery by which
native title is incorporated into the property law of Australia. Thus
in relation to measures that establish 'special tribunals to deal with
native title matters',(44) there is no particular
requirement that these tribunals meet Australia's obligation to overcome
racial discrimination or protect the cultural identity of Indigenous
people. Measures that emphasise 'low cost, expeditious and informal
proceedings to reduce the cost of establishing claims and encourage
the use of agreements' (45) similarly have no substantial
impact upon the level of protection afforded native title interests
compared with non-Indigenous interests but merely ensure that the machinery
is in place to incorporate native title into the legal system.Measures that emphasise 'agreements
through negotiation and mediation' and provide the machinery for enforceable
agreements between parties to a native title claim,(46)
do not in themselves meet Australia's international obligation. What
is significant in terms of Australia's international obligations is
whether the bargaining power of Indigenous parties to a native title
agreement is equal to that of non-Indigenous parties. There is no measure
in the amended NTA identified in the government's submission which addresses
this requirement.
In relation
to measures identified in the government's submission that are intended
to protect native title interests the significant question is whether
the level of protection provided to native title under the amended NTA
is sufficient to meet Australia's international obligations. In order
to determine this question two factors need to be taken into account.
Firstly, the nature of the interest requiring protection and secondly
the extent of the threat affecting the interest.The provision 'to
those who claim native title as well as those who have established they
have native title' (47) of 'special national procedural
rights (that are not available in relation to other forms of property)
to ensure there is consultation about mining and other activity on native
title land',(48) will only meet Australia's international
obligation if it effectively protects native title interests against
mining and other developments.In determining
whether the right to negotiate provisions as amended provides sufficient
protection to native title from the destructive impact of mining and
other developments, the Committee was entitled to compare the amended
right to negotiate provisions with the level of protection that was
previously provided to native title in the same situations under the
original NTA.The Government report explains
that the right to negotiate provisions were merely being 'streamlined'
or 'reworked' but I think this may mask the substantial nature of
the changes made in those provisions. The amended Act alters the right
to negotiate in, I believe three fundamental ways and I would like
to hear the Government's response.First of all,
it rescinds altogether the right to negotiate in certain circumstances.Second, it reduces
the scope of the right to negotiate to a right of consultation and
objection in certain other circumstances, and it authorises States
and Territories to replace the right with their own regimes. Mr Orr
you spoke of this.The amended Act
effectively rescinds the right to negotiate in certain instances,
the amendments allow States and Territories to introduce an alternative
provisions replacing that right with a lesser right of consultation
and objection - where this provision applies, native title claimants
are provided with a right to object to various land use activities
and they have a corresponding right to be consulted when determining
whether there may be ways to minimise environmental and other land
use impacts. Unlike the right to negotiate, however, the government
is not required to act in good faith, a very specific standard which
can otherwise invalidate actions when there is a right to negotiate
attached to it.Nor does the
validity, as I said, of the grant being sought depend on proper consultation
having taken place - the right to consult and object is clearly a
lesser procedural right.(49)
On the basis
of a comparison of the right to negotiate before and after the amendments,
the Committee was able to measure the extent to which, under the amended
NTA, native title is exposed to the threat posed by mining and other developments.
It concluded that the amended right to negotiate provisions did not provide
sufficient protection to native title and failed to meet the standards
set by CERD. The Committee's view concurs with the view expressed by the
acting Aboriginal and Torres Strait Islander Social Justice Commissioner
in Chapter 3 of the 1998 Native Title Report and Chapter 3 of the 1999
Native Title Report.Another protective
measure identified in the government's submission is the provision of
'organisations to assist native title holders to establish and deal
with native title'.(50) As indicated previously
the provision of machinery to deal with native title is not of itself
sufficient to meet the aims of the Convention in overcoming racial discrimination
and protecting Indigenous culture. What needs to be established is that
such organisations are adequately funded and managed in order to provide
protection to native title interests. This is not demonstrated in the
government's submission.A further category
of measures, which the government identifies as addressing 'historical
extinguishment of native title rights', includes the restitution of
native title pursuant to s47B of the NTA. Section 47B provides that
in certain circumstances native title claimants may apply for a determination
on land where native title would otherwise have been extinguished (including
scheduled interests under the Act)(51) because
of previous Crown grants. The section will only apply where the area
is presently vacant Crown land and is not subject to a reservation etc
for a public or particular purpose or subject to a resumption order.(52)
In addition native title claimants must occupy the land at the time
of application.(53)There is no doubt
that s47B provides protection to native title where it may otherwise
be vulnerable to permanent extinguishment at common law or through the
confirmation provisions of the NTA (where the confirmation provisions
extend beyond the common law). The issue that concerned the CERD Committee
is whether the protection of native title through the NTA is sufficient
to meet Australia's international obligations. The fact that the provision
may provide some protection against extinguishment of native title at
common law is not itself determinative of this issue.Because much of the government's
argument is that its actions have been justified because they meet
the standard of the common law, it is important to note that the common
law itself is racially discriminatory.As defined by
the High Court in the Mabo decision, under common law, native title
is a vulnerable property right, it is inferior to sovereign title
which has the power to extinguish native title without notice, consent
or compensation.(54)
As indicated previously,
the level of protection required to meet Australia's international obligations
under CERD depends on the nature of native title and the extent of the
threat that is posed to its existence. The extent to which native title
is vulnerable to extinguishment at common law is a relevant factor in
determining the appropriate level of protection required by the legislation.
As yet this issue has not been finally decided by the High Court although
the majority Full Federal Court decision in Western Australia v Ben
Ward & Ors [2000] FCA 191 constructs native title as a very vulnerable
bundle of rights each of which is extinguished permanently where its
enjoyment is inconsistent with the enjoyment of non-Indigenous interests.Rather than seeing
this development in the common law as a basis for alleviating governments
of their duty to Indigenous titleholders under international law, it
places a greater onus on governments to provide additional protection
to native title in order to overcome the discriminatory effect of the
common law.Section 47B allows
for the restoration of native title on vacant Crown land when specific
criteria are met by claimants. There is of no benefit from s47B to claimants
who have been forced off their land by historical grants, and are therefore
unable to occupy their land. The protection of 47B is not available
to claimants where the government has any proposal for use of the land,
either for public benefit or for the benefit of third parties. Claimants
whose title co-exists on pastoral leasehold land will receive no benefit
from the provision.
3. The third point of rebuttal
by the government to the CERD decision is that the Committee did not
allow a margin of appreciation in legislating in such a novel area of
the law. This argument is dealt with in the submission of Ernst Willheim.
I wish only to add a further decision which, although concerning a State's
obligations under Article 27 of ICCPR, is relevant to the extent to
which States are permitted a margin of appreciation where the pursuit
of economic activities is inconsistent with the culture and tradition
of Indigenous people. In relation to Article 27 the Human Rights Committee
expressed the following view.A State may understandably
wish to encourage development or allow economic activity by enterprises.
The scope of its freedom to do so is not to be assessed by reference
to a margin of appreciation, but by reference to the obligations it
has undertaken in
Article 27. Article 27 requires that a member of a minority shall not
be denied his right to enjoy his culture. Thus, measures whose impact
amount to a denial of the right will not be compatible with the obligations
under Article 27. However, measures that have a certain limited impact
on the way of life of persons belonging to a minority will not necessarily
amount to a denial of the right under Article 27. (55)
4. The fourth point of rebuttal
against the CERD Committee's finding of discrimination is that past
discrimination cannot be undone and the recognition and acknowledgment
of past discriminatory practices is not, in itself, a discriminatory
act.In dealing with
this point it is necessary to understand the significance that the Committee
placed on overcoming past discrimination against Indigenous people.
Paragraph 3 of the decision states:3. The Committee
recognizes that within the broad range of discriminatory practices that
have long been directed against Australia's Aboriginal and Torres Strait
Islander peoples, the effects of Australia's racially discriminatory
land practices have endured as an acute impairment of the rights of
Australia's indigenous communities.
Comments by Committee member Mr Van Boven reflect the Committee's
view that, in formulating the amendments to the NTA, the Australian Government
did not recognise or acknowledge the impact of the historical treatment
of Indigenous people.
I would have liked
in fact if the government would have made an explicit recognition and
acknowledgment that the Aboriginals have been marginalised and disadvantaged
over the years and over the decades and over the centuries. And that
their rights and their entitlements should be recognised in that light,
in that perspective. So we can raise a smokescreen of definitions but
we have to relate it to people. when we deal with human rights after
all and issues of discrimination, it relates to people and that should
have been more explicitly stated.(56)
In contrast to the Committee's views that past discrimination
should be addressed, the Australian government representatives appearing
before the Committee argued that the injustices of the past cannot be
undone and that a State Party is not required to do this under the Convention.
Accordingly, it was argued, the validation and confirmation provisions
of the amended NTA were not discriminatory:
There is an issue
for Australia as to whether it can go back and undo discriminatory
actions which have taken place in the period since settlement and
before the Mabo decision in 1992. I think it's
an issue that needs to inform our discussion about the validation
regimes and the confirmation regime.(57)It is necessary
to recognise that past acts, historical acts and the effects of these
cannot be undone. Past acts, however discriminatory, which have resulted
in dispossession of Australia's Indigenous people cannot be undone,
though of course, present and future policies can remedy the effects,
the current effects, of such acts..(58)(The validation
regime). is much more limited than the regime in the (original Native
Title Act). (This regime) only provides for validation of acts between
1993 and 1996. with regard to this validation regime we are talking
about things that happened in the past, between 1993 and 1996. In
acknowledging and recognising things that happened in the past the
government doesn't believe that it is acting discriminatorily.(59)(The Native Title
Act) protects native title much more than the common law does but
what the Native Title Act doesn't and Australia believes that it is
not obliged to do is to go back and undo the past.(60)The government's
position is that the confirmation regime provides no divestment of
native title rights. It is simply a recognition of the historical
position that native title has been extinguished by grants of freehold
and leasehold. over the past 200 years. The Australian government
believes it is not contrary to CERD to confirm this historical position.
The provisions are simply an acknowledgment of past dispossession
and extinguishment and the government does not believe that this is
contrary, as I said, to CERD.(61)
The Australian Country Rapporteur (62) noted
that there is some merit in the view that one cannot undo that which has
already been done.(63) However the acknowledgment
and recognition that one gives to past acts of injustice are quite another
matter.
The Australian government
believes that it cannot go back and cure the injustices of the past.
Of course there is some merit in that view. What concerns me however
is that the validation and confirmation of extinguishment provisions
in the amended Act. are provisions that do not only apply to the distant
past. They appear to also apply to actions that in some cases took
place as recently as 1994 and 1996.(64)I would welcome
a discussion within the Committee about how we might continue our
urgent deliberations on Australia's Native Title Amendment Act. before
other rights get extinguished in such a way that they would be referred
to as the injustices of the past which cannot now be rendered right.(65)
In its justification of the
provisions of the amended NTA which validated intermediate period acts
the government sought to draw an analogy with the validation provisions
in the original NTA. However, the bases of the enactment of each of
these sets of provisions were quite different. One of the effects of
the High Court rejecting terra nullius in Mabo (No.2) as a past discriminatory
practice, and recognising native title as a pre-existing right was that
acts of dispossession which failed to recognise the procedural or substantive
rights of native title holders were, after the implementation of the
Racial Discrimination Act (Cth) (RDA) in 1975, unlawful. The purpose
of the validation provisions in the original NTA was to validate these
otherwise unlawful acts. Far from being a recognition that past injustices
cannot be undone, the validation provisions were a response to the discontinuity
which is created when injustices of the past are, for the first time,
legally recognised as such.The validation
of intermediate period acts in the amended NTA took place in very different
circumstances. The failure of states and territories to observe the
substantive and procedural rights of native title holders between 1994
and 1996 cannot be seen as an anomaly created by the belated denunciation
of past injustice. In granting mining tenements on pastoral leaseholds
without negotiating with native title holders, states knowingly took
a risk that these acts would be unlawful if the High Court found (as
it did) that native title co-existed on pastoral leasehold land.(66)
The Committee did not accept that acts that took place between 1994
and 1996 could conveniently be dismissed as 'actions of the past'.The Government's
argument that the confirmation provisions comply with the standards
of the common law was also considered to be unacceptable to the Committee.
The importance of acknowledging the historical treatment of Indigenous
people as unjust was influential to the Committee in this regard. As
the Australian Country Rapporteur noted:
Since. European settlement.
the native land rights of Aboriginal peoples have been systematically
undermined. (Terra nullius) completely discounted the cultural value
of Aborigines traditional and complex land distribution system.Because much
of the government's argument is that its actions have been justified
because they meet the standard of the common law, it is important
to note that the common law itself is racially discriminatory.As defined by
the High Court in the Mabo decision, under common law, native title
is a vulnerable property right, it is inferior to sovereign title
which has the power to extinguish native title without notice, consent
or compensation.(67)
As indicated above the Committee rejected the argument that
the common law is the standard against which actions by Government should
be judged as discriminatory or non-discriminatory. The common law cannot
constitute a benchmark of equality where it fails to meet Australia's
obligations under the Convention. As discussed previously s47B of the
amended NTA is an example of a provision which does seek to undo the discriminatory
practices, upheld by the common law, of the past extinguishment of native
title by inconsistent acts of the Crown. The issue is not whether past
discriminatory practices can be undone but whether the measures taken
to do this in the amended NTA are sufficient to meet our international
obligations. The Committee's decision was that the amended NTA does not
provide sufficient protective measures to ensure that native title interests
are equal to those of non-Indigenous interests.
ii) The principle of effective
participation of Indigenous peoples
In determining whether
the amendments to the NTA were discriminatory the Committee was not only
concerned with the standards of equality and non-discrimination contained
in the Convention, but also with the procedure by which the amendments
were settled. In this regard the Committee asked whether Indigenous people
had participated in the formulation of the amendments and whether the
amendments were acceptable to the Indigenous people whose rights are directly
affected by them. The unequivocal answer to these questions was that Indigenous
people did not give their consent to the amendments and that their participation
in the process 'had not been given the legitimacy by the Australian Government
that [they] expected'.(68) This was made quite clear
by the National Indigenous Working Group the day before the legislation
passed through Federal Parliament on 8 July 1998:(69)
We confirm that we have not
been consulted in relation to the contents of the Bill, particularly
in regard to the agreement negotiated between the Prime Minister and
Senator Harradine, and that we have not given consent to the Bill in
any form which might be construed as sanction to its passage into Australian
law. We have endeavoured to contribute during the past two years to
the public deliberations of Native Title entitlements in Australian
law.Our participation
has not been given the legitimacy by the Australian Government that
we expected, and we remain disadvantaged and aggrieved by the failure
of the Australian Government to properly integrate our expert counsel
into the lawmaking procedures of government.(70)
In finding that
Australia had not allowed effective participation by Indigenous people
in the formulation of the amendments to the NTA, the Committee was concerned
that the power to approve or disapprove of the legislation was not appropriately
located with Indigenous people whose rights were directly affected by
it. Even the Committee could not usurp the final responsibility which
Indigenous representatives had in deciding whether their people could
live with the amendments. In 1993 the Committee's decision to support
the original NTA was largely as a result of the consent of Indigenous
representatives. In 1999 it was obvious to the Committee that this consent
had been withdrawn.
Significantly, the original
1993 Act was the subject of extensive negotiations with indigenous groups
and attracted the support from key members of some of those groups.Indigenous groups
have made it clear that they would not have supported the discriminatory
provisions of the Act relating to the past, had the Act not been balanced
by the beneficial provisions of the freehold standard and the right
to negotiate in the future.The original 1993
Act was considered in Australia's periodic report in 1993.The Committee accepted
that the original Act was compatible with the Convention.Let me say again
that in raising these questions concerning the application of the amended
Act, it is also important to evaluate the overall effect of these amendments
in light of the initial compromises that were reached in the original
1993 Act between the rights of Native title holders and the rights of
non-Native Title holders.(71)
The Committee's decision
concerning the native title amendments criticises both the exercise of
the Government's power in removing native title rights and the location
of that power within the non-Indigenous arena. The Committee made it clear
that unless the legislative regimes which affect native title are negotiated
with Indigenous people the Committee will continue to criticise and scrutinise
State Parties at an international level.
The Committee also
expressed its concern that Australia had not complied with Article 5(c)
of the Convention and General Recommendation XXIII concerning Indigenous
Peoples:
The lack of effective participation by indigenous communities
in the formulation of the amendments also raises concerns with respect
to the State Party's compliance with its obligations under Article 5(c)
of the Convention. Calling upon States Parties to "recognise and protect
the rights of indigenous peoples to own, develop, control and use their
common lands, territories and resources", the Committee, in its General
Recommendation XXIII, stressed the importance of ensuring "that members
of indigenous peoples have equal rights in respect of effective participation
in public life, and that no decisions directly relating to their rights
and interests are taken without their informed consent".(72)
The government representatives
presented a very different view of what was required of State Parties
under the Convention in ensuring that Indigenous representatives participated
in the formulation of legislation and policies which directly affect them:
I note also that the CERD's general recommendation in Paragraph
4d goes on to say that no decisions directly relating to the rights of
Indigenous People are to be taken without their informed consent. This
is a higher level of responsibility, a higher level of obligation than
simply providing equal rights. This is a requirement to provide for the
informed consent of Native Title holders. Australia admits that the informed
consent of Native Title holders and Indigenous Peoples was not obtained
in the Native Title Amendment Act. Australia regrets this. As I said at
the beginning on Friday, the government attempted to obtain a consensus
with regard to the Act but despite a lengthy process, that consensus was
not possible and in the end the parliament had to make the laws which
it judged were appropriate. In this case, much of the Native Title Amendment
Act is concerned with balancing rights, balancing rights of Native Title
holders with pastoral lessees and others. As I also said on Friday there
was no consent to these provisions neither from Indigenous People nor
from pastoralists and miners. Australia regards this requirement essentially
as aspirational and it tried to meet and aspire to this requirement but
it admits honestly before this Committee that the requirement was not
met.(73)
The Committee disagreed
with this interpretation of the Convention:
(I)n our general recommendation 23, we referred to the informed
consent. it was said that this requirement of informed consent is only
aspirational. Now it is not understood by this committee in that sense.
I think there we tend to disagree.(74)
In mediating an
outcome in native title the Government claims to have given Indigenous
interests the same weight as the interests of other stakeholders such
as miners, pastoralists, governments and other industries. So long as
the balancing exercise has an 'objectively justifiable aim' and adopts
'proportionate means', then, in the Government's view, the Convention
is not contravened. The outcome of such an approach is that Indigenous
interests will always be overwhelmed by the combined force of non-Indigenous
interests who, on the whole, seek to contain native title.
The responsibility
of a government undertaking this 'balancing exercise' does not extend
to ensuring that the native title legislation, which so fundamentally
affects Indigenous people is directly negotiated with and agreed to by
Indigenous people.
The Committee's response
to the government's position on the extent of their obligations under
CERD is reflected in paragraph 6 of the decision. The Convention requires
that State Parties balance the rights of different groups identifiable
by race.(75) An appropriate balance based on the
notion of equality is not between miners, pastoralists, fishing interests,
governments and Indigenous people, but between the rights - civil, political,
economic, cultural and social - of Indigenous and non-Indigenous titleholders.
Paragraph 6 states:
While the original Native Title Act was delicately balanced
between the rights of indigenous and non-indigenous title holders, the
amended Act appears to create legal certainty for government and third
parties at the expense of indigenous title.
The justification
for making a commitment towards a negotiated outcome with Indigenous people
is the recognition that the relationship between Indigenous and non-Indigenous
people should be an equal one. A relationship of equality is not one in
which Indigenous people take their place, as just another interest group,
among the vast range of non-Indigenous interest groups with a stake in
native title. Rather, it is one where Indigenous interests are equal to
the combined force of non-Indigenous interests, in all their forms and
manifestations. A legislative regime which is imposed rather than negotiated
with the Indigenous people it directly affects is not based on a relationship
of equality.
The Chairman of the
Committee pointed out the implications for Indigenous people of the Government
seeing its role as the mediator of interest groups, rather than as a negotiator
with Indigenous people who had equal bargaining power in the negotiation
process.
We were told that consultations
took place. Alright, the first point that you were under pressure. By
who? Consultations took place. Wonderful. That proves that the government
is doing a wonderful job. We were told about equal rights. There was
no spelling out of which rights we are talking about. Can the government
say that there are equal rights on every human right which exists -
all five of them - social, political, etc. All the five sets of rights?Mr Van Boven spoke
about substantive right and I'm not going to elaborate on this. Then
we were told that we were not able to achieve consensus. So? The parliament
acted. That means what in lay man's words? That the point of view of
the Indigenous population was not accepted? No consensus was achieved.
So the parliament which is the white man again took the matter into
their hands and they decided and they imposed on the indigenous people,
so what consensus resulted? You put it in such a way, in a legal way
as a good lawyer, but as someone who is working in the field of human
rights the conclusion that I achieve is that the Indigenous population's
point of view is not taken into consideration. The pressure was not
felt. Consultation with them did not achieve anything, of course, why
should it achieve anything? Equal rights were mentioned. Few rights
and not all rights we were not told about that. Consensus was not achieved
so parliament imposed whatever they want to impose. I must say that
this is a little bit of an alarming picture.(76)
The Committee's decision
concerning the native title amendments criticises both the exercise of
the Government's power in removing native title rights and the location
of that power within the non-Indigenous arena. The Committee made it clear
that unless the legislative regimes which affect native title are negotiated
with Indigenous people the Committee will continue to criticise and scrutinise
State parties at an international level.
(b) Amendments to the Act
Consultation and
negotiation with Indigenous representatives and native title representative
bodies is the most essential component of establishing legislation which
meets Australia's obligations under CERD.(77) The
importance of informed consent to ensure effective participation by Indigenous
people is recognised in international human rights standards. Domestically,
a recent review of the operation of Northern Territory land rights legislation
named informed consent as the most effective means of decision-making
concerning land use issues.(78)
Standards for consultation,
the first step in negotiation, are set out in the document prepared by
the Social Justice Commissioner for the Australian Heritage Commission
appended to this submission, and provided to this Committee at the Public
Hearing. This document deals specifically with heritage issues, however,
the standards are consistent with those set out by the CERD.
Without pre-empting
the outcome of negotiations with Indigenous representatives, amendments
which require most urgent attention are those identified by the CERD Committee
as discriminatory.
(c) Dialogue with the CERD
Committee
The CERD Committee
members could have an invaluable role in assisting in such a dialogue.
They would certainly benefit from first hand experience and knowledge
of the situation in Australia. The first priority however, is to establish
a better informed basis for amendment through consultation and negotiation
with Indigenous people.
Question taken on Notice
Senator Ferris addressed
the following question to the Social Justice Commissioner when he appeared
before the Committee on 22 February 2000.
CHAIR - Dr. Jonas, we had some evidence last Thursday night
from ATSIC in which they called for a scrapping of the Native Title Act
and suggested that we should start again. Clearly, that is not your position,
but would you like to comment on the suggestion that we should abandon
the current Native Title Act and begin again? How would you see that operating
in the Australian community if it were to occur?
In answering this
question it is important to understand that, in meeting its international
obligations a State party is required to ensure that the rights of indigenous
people are equal to the rights of non-indigenous people. Where the common
law does not adequately protect Indigenous interests then the legislature
is under a duty to rectify any discrimination that exists. What has happened
in relation to the NTA is that the legislature has failed to provide the
additional protection that would bring about equality between Indigenous
and non-indigenous interests in land.
If the amended NTA
were 'scrapped' then the rights of Indigenous people would be left to
the common law. The common law of native title is still in a stage of
development. The High Court has not resolved the nature of native title,
nor the circumstances in which it is able to be extinguished. Until these
matters are resolved it is impossible to tell whether the rights of Indigenous
people are better protected under the common law compared with the legislature.
What is important at this stage is that as a result of consultation and
negotiation with Indigenous representatives, the Native Title Act be further
amended so as to conform with the principles of equality and non-discrimination.(79)
Amendment of those provisions would require a process which could be referred
to as "unravelling"(80) but this does not require
"scrapping of the Act".
Footnotes
1.
Native Title Report, July 1996 - June 1997, Chapter 5.
2.
Native Title Report, July 1995 - June 1996, p18.
3.
International Convention on the Elimination of All Forms of Racial Discrimination
(Herein CERD), Article 8(1).
4.
The terminology of CERD refers to States Parties, or States. States in
this sense refers to nation states, ie the nation state of Australia,
and not to internal states and territories within a nation.
6.
The convention entered into force in Australia on 30 October 1975. For
an overview of the Committee's functions and procedures see United Nations
High Commissioner for Human Rights, Fact Sheet No 12: The Committee on
the Elimination of Racial Discrimination, http:// www.unhchr.ch/html/menu6/2/fs12.htm.
7.
Security Council Summit, 31 January 1992, cited in Committee on the Elimination
of Racial Discrimination, Annual Report of the Committee on the Elimination
of Racial Discrimination, UN Doc A/48/18 (1993), Annex 3, para 1.
8.
Secretary-General of the United Nations, An agenda for peace, cited in
the CERD Committee's Annual Report of the Committee on the Elimination
of Racial Discrimination, op.cit., Annex 3, paras 2-4.
9.
Committee on the Elimination of Racial Discrimination, Decision 1(53)
concerning Australia, 11 August 1998. UN Doc CERD/C/53/Misc.17/Rev.2.
10. Committee member
Mr Wulfrum, in Committee on the Elimination of Racial Discrimination,
Summary record of the 1287 th meeting (53 rd session),14 August 1998,
UN Doc CERD/C/ SR.1287, para 32. See also comments by Mr Van Boven, Ms
McDougall and Mr Garvalov at paras 29, 38 and 42 respectively.
11.
Mr Garvalov, Summary record of the 1287 th meeting (53 rd session), op
cit, para 42.
12.
Committee on the Elimination of Racial Discrimination, Decision 2(54)
on Australia, 18 March 1999, UN Ref: CERD/C/54/Misc.40/Rev.2 (Herein CERD
Decision 2(54)). The decision can be accessed through the FAIRA webpage,
see note 1 above.
15.
CERD Decision, para 8. For an analysis of these obligations see Acting
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 1998, HREOC, Sydney, 1999, pp30-51.
20.
CERD/C/55/Misc.31.Rev.3, 16 August 1999, para 2.
22.
The meaning of these principles has been considered in detail in previous
Native Title reports: Acting Aboriginal and Social Justice Commissioner,
Native Title Report 1998, op.cit., Chapter 2; Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 1996- 97, HREOC,
Sydney, 1997, Chapter 6; and in the HREOC CERD Submission, paras 92 -
126 www.hreoc.gov.au
23.
Committee on the Elimination of Racial Discrimination, General Recommendation
XX on Article 5, UN Doc CERD/48/Misc.6/Rev.2 15/03/96, para 2 and Committee
on the Elimination of Racial Discrimination, General Recommendation XIV
- Definition of discrimination, 19/03/93, para 2.
24.
Proof Committee Hansard, Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund, Renee Leon, 9 March 2000, p154
25.
Committee on the Elimination of Racial Discrimination, General Recommendation
XIV - Definition of discrimination, 19/03/93, para 2. See Acting Aboriginal
and Social Justice Commissioner, Native Title Report 1998, op.cit pp32-34.
27.
HREOC CERD Submission, op.cit para 110. A copy of this submission is on
the HREOC web page at www.hreoc.gov.au
28.
Attorney General's Submission to the Parliamentary Joint Committee on
Native Title and the Aboriginal and Torres Strait Islander Land Fund,
Submission No: CERD 24, paragraphs 55 & 56, 29 February 2000
29.
Committee on the Elimination of Racial Discrimination, General Recommendation
XXIII - Indigenous Peoples, 18 August 1997, Un Doc CERD/C/51/Misc.13/Rev.4,
para 3.
32.
Ms Ali, in FAIRA, CERD Transcript, p19; Ms McDougall, op cit, p 60.
33.
Mr Diaconu in CERD Summary Record, para 45.
34.
Proof Committee Hansard, Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund, Ms Horner, 9 March 2000, p156
35.
For reasons why the Acting Social Justice Commissioner had argued to the
Committee that the validation, confirmation, primary production upgrade
and the amendments to the right to negotiate provisions are discriminatory
see: HREOC CERD submission, paras 43-90. An analysis of these provisions
and their application by State and Territory governments is also contained
in the Native Title Report 1999, pp49-67.
37.
Proof Committee Hansard, Ms Horner, op cit, p156.
40.
Transcript of Australia's Hearing before the CERD Committee, Mr Orr, Australian
representative in FAIRA, CERD Transcript, pp21-22.
42.
Proof Committee Hansard, Ms Horner, op cit, p156. The range of measures
referred to by the government can be found at Submission No 24(b), op
cit, pp2-4.
43.
Submission No 24(b), op cit, p2.
46.
ibid, points 4,5 and 6, p3.
49.
Report by Ms G. McDougall, Country Rapporteur, to the 1323 rd meeting
of the Committee in the Elimination of Racial Discrimination, 12 March
1999.
50.
Submission No 24(b), op cit, point 5, p2.
51.
That is, grants which are included in the Schedule to the Act as a result
of the 1998 Amendment Act.
52.
Section 47B(1)(a) and (b), NTA.
54.
Australian Country Rapporteur, op cit, Opening Remarks, pp4-5.
55.
Communication No 511/1992: Finland. Ilmari Lansman et al. 08/11/94. CCPR/C/52/D/511/
1992.
56.
Mr Van Boven in FAIRA, CERD Transcript, op cit, p43.
57.
FAIRA, CERD Transcript, op cit, Mr Orrp 21.
61.
ibid, p33. See also Australia's written report: Committee on the Elimination
of Racial Discrimination, Additional information pursuant to Committee
Decision: Australia, op cit, para 37.
62.
The Country Rapporteur is the committee member who leads the Committee
in its consideration and questioning of the country.
63.
FAIRA, CERD Transcript, op cit, Ms McDougall, p60.
64.
Ms McDougall in FAIRA, CERD Transcript, op cit, p60.
66.
Prior to the High Court's decision in Wik v Queensland(1996) 187 CLR 1,
(Wik), state governments carried out many acts on pastoral leasehold land
without negotiating with native title holders. As a result of the Wik
decision, which found that native title co-existed on pastoral leasehold
land, these acts were invalid. The amended NTA validated these invalid
acts, called intermediate period acts (Part 2 Division 2A). The effect
of the validation of intermediate period acts depended on whether they
were category A, B, or C intermediate period acts (see ss 203A-232E).
The grant of a freehold or exclusive leasehold had the effect of extinguishing
native title. The grant of a non-exclusive lease has the effect of extinguishing
native title to the extent of the inconsistency. The grant of a mining
lease does not extinguish native title.
67.
Australian Country Rapporteur, Opening Remarks, op cit, pp4-5.
68.
Hansard, Senate, 7 July 1998, p4352.
71.
Australian Country Rapporteur, Report, op cit, pp5-8.
73.
FAIRA, CERD Transcript, op cit, Mr Orr, p38.
74.
FAIRA, CERD Transcript, op cit, Mr Van Boven, p43.
75.
See also Mr Aboul-Nasr, in FAIRA, CERD Transcript, op cit, p44.
76
FAIRA, CERD, op cit, The Chairman, p44.
77.
Committee on the Elimination of Racial Discrimination General Recommendation
XXIII - Concerning Indigenous Peoples, 18 August 1997, UN Doc CERD/C/51/Misc.13/Rev.4,para
4(d).
78.
House of Representatives Standing Committee on Aboriginal and Torres Strait
Islander Affairs "Unlocking the Future" August 1999, para 1.29.
79.
Committee on Elimination of Racial Discrimination. Decision 2(54) on Australia:
Australia 18/ 3/99 CERD/C/54/Misc.40/Rev.2 para 7.
80.
Mr Geoff Clark, Chairman of ATSIC suggested that the amendments could
be "unravelled" rather than "scrapped". Proof Committee Hansard. Joint
Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund. Consistency of the Native Title Amendment Act 1998 with Australia's
international obligations under the Convention on the Elimination of all
Forms of Racial Discrimination, Thursday February 2000, Canberra page
NT 10-11.