Appendix 2

Information concerning
native title provided by the Human Rights and Equal Opportunity Commission
to United Nations Committees in 2000

The following is
an extract of the information on native title provided to:

1) Committee on
the Elimination of All Forms of Racial Discrimination (CERD): additional
information to Australia's 10 th , 11 th and 12 th periodic reports
under CERD, March 2000;

2) Human Rights Committee: additional information to Australia's third
and fourth periodic reports, for consideration during the 69 th session,
July 2000; and

3) Committee on Economic, Social and Cultural Rights: information in
relation to consideration of Australia, August 2000.

All information was
brought to the attention of the Australian government through a range
of HREOC publications and submissions.

1. Native Title

Summary of Issue

• Native title is
  the legal recognition given to the traditional laws acknowledged by,
  and the traditional customs observed by, Indigenous people. The High
  Court of Australia has also recognised the power of the State to extinguish
  native title.
• The common law
  is developing a construction of native title that makes it vulnerable
  to permanent extinguishment. This construction is referred to as a bundle
  of rights approach to native title. Rather than the relationship between
  these rights being perceived as a system of rights, native title is
  seen as a set of traditional practices that will only be protected by
  the law if they continue to be practised as they were by the original
  inhabitants.
• Amendments to
  the following aspects of the Native Title Act prefer non-Indigenous
  title to land over Indigenous title to land:

  (i) The validation
  provisions;
  
  (ii) The confirmation provisions;
  
  (iii) The future act provisions; and
  
  (iv) The right to negotiate.

• In each of these
  instances, Indigenous interests are either extinguished or impaired
  in order to ensure the full enjoyment of non-Indigenous interests in
  land where there is any inconsistency between Indigenous and non-Indigenous
  interests.(1)
• Native title holders
  are relevantly different to other persons vested with interests in land,
  given their level of dispossession and disadvantage. It is fitting that
  native title should be given particular protection consistent with the
  internationally recognised rights to enjoy one's culture and not be
  arbitrarily deprived of property.(2)

Relevance to the ICERD

• Articles 1(1):
  A distinction based on race which has the purpose of nullifying or impairing
  the recognition, enjoyment or exercise of rights on an equal footing;
• Article 2(1)(a):
  States not to engage in discrimination;
• Article 2(1)(c):
  States to repeal all discriminatory laws;
• Article 5: Equality
  before the law; and
• Article 6: States
  to assure to everyone effective protection and remedies against acts
  of racial discrimination.

The amendments
to the Native Title Act and their relevance to ICERD:
Decision 2(54) of the CERD noted that the validation, confirmation and
primary production upgrade provisions, and restrictions and exceptions
to the right to negotiate discriminate against native title holders. Since
August 1999, state and territory native title legislation continues to
be considered or has been enacted under the authority of the above discriminatory
provisions. The Commonwealth legislation's authorisation of state and
territory native title regimes also denies Indigenous peoples 'effective
protection and remedies' against acts of racial discrimination that violate
their human rights and fundamental freedoms, as required under Article
6.

• Validation' provisions:
  Generally states and Territories have been unwilling to negotiate an
  alternative to blanket validation legislation. The validation of intermediate
  period acts deprives native title holders of procedural rights to engage
  in decisions about land, substituting a compensation scheme for rights
  removed.
• 'Confirmation'
  provisions: All states and Territories except Tasmania have introduced
  confirmation legislation. Since August 1999, Western Australia has passed
  legislation confirming extinguishment on further titles.
• 'Right to negotiate'
  provisions: In paragraph 7 of Decision 2(54) the CERD expressed its
  concern that provisions within the NTA that place 'restrictions concerning
  the right of indigenous title holders to negotiate non-indigenous land
  uses' are discriminatory. Most states and territories have introduced
  legislation that contains provisions that restrict the ability of native
  title holders to negotiate over non-Indigenous land uses.
• Failure of the
  amended Native Title Act to incorporate the principles of equality:
  In order to restitute the principles of equality and non-discrimination
  in state legislation it would be necessary to amend the Commonwealth
  Native Title Act so as to make it consistent with the RDA.
• Lack of consultation
  and informed consent for the amendments: The failure of the government
  to enter into negotiations with native title holders to amend the Native
  Title Act also places Australia in breach of its obligations under the
  Convention.

Relevance to the ICCPR

• Articles 1 and
  27: Self-determination and the rights of minorities; and
• Articles 2 and
  26: Non-discrimination and equality.

Articles 1 and 27: Self-determination
and the rights of minorities

The extinguishment
or impairment of native title is a breach of Articles 1 and 27 of the
ICCPR, which require the state to protect the culture of Indigenous peoples.
The HRC has confirmed that Indigenous peoples are minorities for the purposes
of Article 27 in a number of cases, such as in Kitok v Sweden (197/85),
Ominayak v Canada (167/87), and the Länsman cases (511/92 and 671/95).
The HRC has also recognised the special place of land rights within Indigenous
cultures, and that this 'does not prejudice the sovereignty and territorial
integrity of a State party'.(3)

The following provisions
of the amended NTA and developments in the common law subordinate Indigenous
interests to those of non-Indigenous interests:

• Future act provisions:
  The absolute protection of future acts on native title land means that
  native-title holders do not have any meaningful right to participate
  in the decision of whether the act will be performed. In this regard,
  the 'future acts' and especially the 'primary production' breach Articles
  1 and 27 of the ICCPR; the 'upgrade' provisions also breach Australia's
  positive duties to protect native title under Article 1.
• Right to negotiate:
  Diminution of the right to negotiate diminishes Article 1 rights of
  self-determination, as interpreted by UN treaty bodies, by rolling back
  opportunities for Indigenous peoples to participate in the management
  of their land and resources.(4) Denial of native
  title holders' right to negotiate also amounts to denial of a minority's
  exercise of cultural rights, which constitutes a breach of Article 27.
• 'Validation' and
  'confirmation' provisions: The validation provisions, which retrospectively
  validate all land grants issued in contravention of native title rights,
  and the confirmation provisions, which wholly extinguish native title
  rights, or authorise such extinguishment, and therefore wholly deny
  cultural rights associated with affected land, to a breach of Article
  27 rights.
• Lack of consultation
  and informed consent for the amendments: The failure to consult constitutes
  a breach of Article 27. In particular, General Comment 23 states, at
  paragraph 7: 'The enjoyment of [cultural] rights may require positive
  legal measures of protection and measures to ensure the effective participation
  of members of minority communities in decisions which affect them'.
• Common law of
  native title: Article 27 of the ICCPR protects minority contemporary
  cultural practices as well as traditional practices.(5)
  Under the 'bundle of rights' approach, each particular native title
  right can be extinguished on the basis of inconsistency with the exercise
  of rights pursuant to an act of the Crown.
• Where the common
  law is developing in a direction contrary to Australia's obligations
  under ICCPR it is incumbent on Australia to legislate to ensure that
  appropriate protection is extended to Indigenous people.

Articles 2 and 26: Non-discrimination
and equality

Articles 2 and 26
of ICCPR require the State to protect Indigenous rights to land to the
same extent that non-Indigenous interests in land are protected. The priority
given to non-Indigenous interests in land over Indigenous interests in
land is a breach of these Articles.

The following provisions
of the NTA breach these articles:

• 'Validation',
  'confirmation' and future act provisions: These provisions diminish
  the property rights of native title holders and increase the property
  rights of non-native title holders. Although property is not a protected
  ICCPR right, Article 26 prohibits discrimination in relation to the
  exercise of all human rights, including non-ICCPR rights.(6)
  
• Right to Negotiate:
  Even if the 'right to negotiate' is classified as a 'special measure',
  it cannot be said to have exhausted its purpose. There is no evidence
  that Indigenous people no longer suffer the effect of past discrimination
  on pastoral leasehold land.(7) Such positive measures
  must also respect the provisions of both Articles 2(1) and 26 of the
  Covenant as regards the treatment between different minorities and the
  treatment between the persons belonging to them and the remaining part
  of the population.
• Failure of the
  amended Native Title Act to incorporate the principles of equality:
  The Racial Discrimination Act 1975 (Cth) embodies Australia's domestic
  implementation of its obligations under CERD.(8)
  It makes discrimination on the basis of race, colour, descent or national
  or ethnic origin unlawful. It binds both state and federal governments.
  The recent amendments to the NTA (9) provided an
  opportunity to apply the RDA unequivocally. As amended, section 7 of
  the NTA does not ensure the protection of native title by the general
  standards of equality and non-discrimination enshrined in the RDA.

Relevance to the ICESCR

• Article 1: Self-determination;
• Article 2.1: Progressive
  realisation of rights;
• Article 2.2: Native
  title rights to be enjoyed on a non-discriminatory basis; and
• Article 15: Native
  title and cultural rights.

Article 1: Self-determination

There are two bases
on which the protection of native title is required in order to meet the
obligation under Article 1 in relation to the right to self-determination.

• The first is the
  strong link established in international law between the right of self-determination
  for Indigenous peoples and control over their lands and resources.(10)
• The second basis
  for the protection of native title encompasses political participation
  rights, including the right to be consulted and to give or withhold
  consent on an informed basis in respect of decisions that will directly
  affect Indigenous peoples. The right of effective participation applies
  to the decision to enact and amend legislation in respect of native
  title.
• The fact that
  traditionally Aboriginal and Torres Strait Islander people used their
  land as a resource for the sustenance and well being of their community
  is not, under the amended NTA, translated into a right to participate
  in the modern management of their land. Native title rights are isolated
  from the day-to-day lives of the communities that observe and integrate
  their traditions into the texture of contemporary life. In this way
  native title is quarantined from the broader principle of self-determination.

Article 2.1: Progressive realisation
of rights

• Article 2.1 of
  ICESCR requires States to take steps to achieve progressively the full
  realisation of the rights recognised by the Covenant. Where the common
  law is developing in a direction contrary to Australia's obligations
  under ICESCR it is incumbent on Australia to legislate to ensure that
  appropriate protection is extended to Indigenous people.
• The amended NTA
  does not overcome the inadequate protection extended to native title
  by the common law. Indeed the confirmation provisions seek to confirm,
  and at times go beyond, the extinguishments permitted by the common
  law.
• The NTA also displaces,
  to the extent of any inconsistency, the only explicit protection against
  the discriminatory exercise of sovereign power against the Indigenous
  inhabitants, the Racial Discrimination Act 1975 (Commonwealth) (RDA).
• Significant aspects
  of the amended NTA are discriminatory and thus inconsistent with the
  RDA. Without any constitutional entrenchment of either non-discrimination
  norms or Indigenous rights in Australia, through a Bill of Rights, there
  is no domestic mechanism to ensure that the cultural and economic rights
  of Indigenous people are protected.

Article 2.2: Native title
rights to be enjoyed on a non-discriminatory basis

• Article 2.2 of
  ICESCR requires that the rights conferred by the Convention be enjoyed
  on a non-discriminatory basis.
• The CERD's March
  1999 decision under its early warning and urgent action procedures in
  respect of Australia's compliance with its obligations under the ICERD
  found that the amended NTA was discriminatory in that it preferred non-Indigenous
  interests over Indigenous ones.
• The CERD's analysis
  supports the conclusion that there is a contravention of the non-discrimination
  requirements of ICESCR as reflected in Article 2.2.

Article 15: Native title and
cultural rights

• Article 15 provides
  for the right of everyone to take part in cultural life (15(a)). Accordingly,
  any diminution of native title rights is a derogation from the right
  of Indigenous people to take part in and enjoy their cultural life.
  The amendments to the NTA will make it more difficult to protect important
  cultural and sacred sites from mining and other developments, to undertake
  ceremonies, to instruct children in culture and law and to carry out
  traditional activities such as camping, hunting and fishing.

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1
The Committee on the Elimination of Racial Discrimination (the CERD) has
observed that the amended Act appears to create legal certainty for governments
and third parties at the expense of native title holders. They also noted
that the process by which the NTA amendments of 1998 were enacted did
not involve the informed consent of Indigenous people or their representatives,
nor were the amendments acceptable to the Indigenous people whose rights
are directly affected by them. Committee on the Elimination of Racial
Discrimination, On Australia, paragraphs 6 & 9. 18 March 1999, UN Doc
CERD/C/54/Misc.40/Rev.2.

2
Acting Aboriginal and Torres Strait Islander Social Justice Commissioner,
Native title report 1998, HREOC, Sydney, 1999, p105. The HRC has confirmed
that different rights for vulnerable and disadvantaged groups are permissible
under the ICCPR at paragraph 10 of General Comment 18.

3
HRC, General Comment 23 at paragraphs 3.2 and 7.

4
Acting Aboriginal and Torres Strait Islander Social Justice Commissioner,
op cit, p62.

5
See Länsman v Finland (511/92).

6
See HRC definition of discrimination in General Comment 18 at paragraph
7.

7
Acting Aboriginal and Torres Strait Islander Social Justice Commissioner,
op cit, p114.

8
The preamble to the Racial Discrimination Act 1975 (Cth) states that the
purpose of the Act is 'to make provision for giving effect to the Convention'
(ie. CERD).

9
The amendments were passed on 8 July 1998 and most came into effect from
30 September 1998.

10
See for example the 1990 case of Chief Ominayak v Canada UN Doc A/47/40
(1992).