International Review of Indigenous issues in 2000: Australia - 2. The fight against racism: Principles of non-discrimination and equality

International Review of Indigenous issues in 2000: Australia

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2. The fight
against racism: Principles of non-discrimination and equality

The Principle of Non-Discrimination

The international
human rights norms against which practices of racism and discrimination
against Indigenous people must be judged are the guarantees of equality
before the law and racial non-discrimination. These norms are recognised
in every major international human rights treaty, convention and declaration.
They are recognised and protected in the following instruments to which
Australia is a party.

• International
  Covenant on Civil and Political Rights (ICCPR), Article 2 & 26;
  
• International
  Covenant on the Elimination of All Forms of Racial Discrimination (CERD),
  
  
  Article 2;
  
• Convention on
  the Rights of the Child, Article 2;
  
• International
  Covenant on Economic, Social and Cultural Rights (ICESCR), Article 2.

The principle of
racial non-discrimination has also reached the status of customary international
law [1]. More significantly, the prohibition of systemic
racial discrimination has attained the highest status of international
law, jus cogens. [2] Principles that have reached
the status of jus cogens are 'peremptory norm(s) of international law
from which no derogation is permitted.[3] The principle
of racial non-discrimination thus exists independently of the obligations
in instruments mentioned above, and cannot be displaced.

CERD defines racial
discrimination in Article 1(1) in terms of its purpose or effect.

... any distinction,
exclusion, restriction or preference based on race, colour, descent
or national or ethnic origin which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.

The international
definition of racial discrimination is generally considered to have two
elements.

• First, 'a distinction,
  exclusion, restriction or preference based on race, colour, descent
  or national or ethnic origin' is required.
• Second, the distinction
  based on race must nullify or impair 'the recognition, enjoyment or
  exercise, on an equal footing, of human rights and fundamental freedoms
  in the political, economic, social, cultural or any other field of public
  life.' This second element is generally taken to require that, to be
  considered discriminatory, any racially specific measure must be able
  to be characterised as detrimental to the racial group in question.

Thus it can be seen
that the standard of equality protected at international law is a substantive
equality standard. This substantive equality standard is recognised in
the principles of equality and non-discrimination elaborated upon by treaty-based
Committees and international courts and can be reduced to the following
four key propositions. [4]

1. Equality does not necessarily
mean treating everybody in an identical manner.

The promotion of
equality does not necessitate the rejection of difference. In the decision
of the International Court of Justice in the South West Africa Case, Judge
Tanaka stated:

The principle
of equality before the law does not mean the absolute equality, namely
the equal treatment of men without regard to individual, concrete
circumstances, but it means the relative equality, namely the principle
to treat equally what are equal and unequally what are unequal...
To treat unequal matters differently according to their inequality
is not only permitted but required. [5]

This passage identifies
the salient features of the two legal models of equality - namely, formal
and substantive equality.

A formal equality
approach relies on the notion that all people should be treated identically
regardless of such differences. However, an approach "which relies
on the notion that all people should be treated the same, denies the differences
which exist between individuals and promotes the idea that the state is
a neutral entity free from systemic discrimination. In reality '[t]he
fact that… Aborigines… have been subjected to appalling inequalities
demonstrates that formal equality is compatible with the grossest injustice."
[6]

A substantive equality
model, such as that adopted by Judge Tanaka, takes into account 'individual,
concrete circumstances'. It acknowledges that racially specific aspects
of discrimination such as cultural difference, socio-economic disadvantage
and historical subordination must be taken into account in order to redress
inequality in fact.

The international
legal approach to equality is one of substantive rather than formal equality.
[7] The Human Rights Committee, which oversees the implementation
of the ICCPR, has adopted a substantive equality approach to the meaning
of non-discrimination. The Human Rights Committee has indicated that equality
'does not mean identical treatment in every instance', and that the Committee
is concerned with 'problems of discrimination in fact' not just discrimination
in law. [8]

2. A differentiation of treatment
will not constitute discrimination if the criteria for its adoption is
objective, reasonable and pursues a legitimate aim.

Differential treatment
is permitted under the principle of equality so long as the purpose of
the treatment is to achieve equality between racial groups.

The Human Rights
Committee and the CERD Committee have indicated that there are two types
of differential treatment that are permitted under the ICCPR and CERD.
These are actions that constitute a legitimate differentiation of treatment
('reasonable differentiation'), and affirmative action ('special measures').
A differentiation of treatment does not necessarily have to be characterised
as a special measure for it to be permissible:

[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 or fall within the scope of Article
1, paragraph 4 (special measures)… In seeking to determine whether
an action has an effect contrary to the Convention, it will look to
see whether that action has an unjustifiable, disparate impact upon
a group distinguished by race, colour, descent, or national or ethnic
origin. [9]

Whether a differentiation
of treatment is legitimate or not legitimate will depend upon the purpose
of the differentiation. Oppressive distinctions for the purpose of justifying
the reduction of rights are not legitimate. Differential treatment that
aims to preserve minority cultures may be legitimate. Differential treatment
is only legitimate if the distinction is 'appropriately adapted to the
distinctive characteristics of the group or individual' and there is a
reasonable, objective and proportionate nexus between the relevant difference
and the Convention's objective to achieve equality between racial groups.
As the Human rights Committee stated:

… not every
differentiation of treatment will constitute discrimination, if the
criteria for such differentiation are reasonable and objective and
if the aim is to achieve a purpose which is legitimate under the Covenant.
[10]

In Australia recently,
the question of what constitutes permissible differential treatment under
CERD was debated before the Parliamentary Joint Committee on Native Title
and the Aboriginal and Torres Strait Islander Land Fund (the PJC). [11]
This debate took place in the context of the PJC's Inquiry into the sustainability
of the CERD Committee's decision on 18 March 1999 that the amended Native
Title Act 1993 (Cth) (NTA) was in breach of Australia's onligations under
CERD. The Australian government's interpretation of what constitutes permissible
or legitimate differential treatment under CERD allowed for treatment
that had a detrimental or invidious effect on Indigenous people. The PJC
Report justified the invidious differential treatment of Indigenous people
under the amended NTA on the following bases: [12]

• the objectives
  for the amendments are legitimate in the circumstances;
  
• the amendments
  are reasonable and not arbitrary
  
• the amendments
  are designed to achieve a legitimate objective with little, or no, impact
  on native title;
  
• the amendments
  deal with historical acts and developing law, or attempt to balance
  competing interests, and therefore a margin of appreciation is allowed
  [13]

The 'legitimacy'
of the differential treatment of Indigenous people in the native title
amendments were revealed in the PJC Report to be political considerations
such as the provision of certainty [14] and 'balancing
competing interests, [15] and not the achievement of
the objectives of CERD.

3. Special measures, or affirmative
action, are sometimes required in order to redress inequality and to secure,
for the members of disadvantaged groups, full and equal enjoyment of their
human rights.

Special measures
are a further type of differential treatment that is not discriminatory
but is intended to achieve the objective of CERD; the achievement of equality
between racial groups. Where necessary to ensure the adequate development
and protection of certain racial groups (or individuals belonging to such
groups) states may be required to implement special measures.

Article 2(2) of CERD
requires;

State parties
shall, when circumstances so warrant, take, in the social, economic,
cultural and other fields, special and concrete measures to ensure
the adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing them
the full and equal enjoyment of human rights and fundamental freedoms.
These measures shall in no case entail as a consequence the maintenance
of unequal or separate rights for different racial groups after the
objectives for which they were taken have been achieved.

Article 1(4) of CERD
also provides for special measures:

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 such 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 for different racial groups and that they shall not be continued
after the objectives for which they ere taken have been achieved.

Section 8 of Australia's
domestic legislation, the Racial Discrimination Act 1975 directly incorporates
article 1(4) of CERD.

While in some circumstances
they may be required, the features of special measures are strictly defined.
Their main features, as outlined in Article 1(4) of CERD, are that special
measures must be for the sole purpose of securing the advancement of a
particular group; such advancement must be necessary; it must not lead
to the maintenance of separate rights for different racial groups; and
they shall not be continued once the objective of the measure has been
achieved.

Article 2(1) of the
International Covenant on Economic, Social and Cultural Rights provides
another basis at international law for governments to take special measures
where the enjoyment of human rights is impaired:

Each State Party
to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic
and technical, to the maximisation of its available resources, with
a view to achieving progressively the full realization of the rights
recognised in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures.

These paragraphs
show that the aim of special measures is to achieve substantive equality
and to ensure the equal enjoyment of rights. The rationale for allowing
'special measures' is that historical patterns of racism entrench disadvantage
and more than the prohibition of racial discrimination is required to
overcome the resulting racial inequality. [16]

Any attempt to redress
Indigenous disadvantage through special measures must acknowledge that:

• Indigenous disadvantage
  is the result of systemic discrimination;
  
• The appropriate
  benchmark by which to measure progress is one of equality between Indigenous
  and non-Indigenous Australians;
  
• The government
  is obligated to take sufficient steps (or special measures) to achieve
  such equality;
  
• There must be
  adequate monitoring and evaluation of progress, including measuring
  effectiveness through benchmarking and standard setting; and
  
• Real progress
  requires the effective participation of Indigenous people in decision
  making

4. Rights that recognise the
distinct cultural identity of minority groups are consistent with and
sometimes required by the notion of equality.

Specific rights that
recognise the distinct cultural identity of minority groups are consistent
with a substantive approach to equality. Indeed, it has largely been in
the context of the protection of minority groups that the meaning of non-discrimination
and equality has been elaborated.

The purpose of particular
measures for the protection of minorities is to enable minorities to maintain
basic characteristics that distinguish them from the majority of the population,
and hence institute factual equality between members of the minority group
and other individuals.

In 1935 the Permanent
Court of International Justice produced an advisory opinion on Minority
Schools in Albania in which they considered the aims of the Minorities
Treaties adopted by the League of Nations at the end of the First World
War. The Court found that the aim of the treaties was to secure for minorities
the ability to live peaceably in society, while preserving their own characteristics.
In order to do this, the following factors were required:

The first was
to ensure that members of racial, religious or linguistic minorities
should be placed in every respect on a footing of perfect equality
with the other nationals of the State.

The second was
to ensure for the minority elements suitable means for the preservation
of their own characteristics and traditions…

These two requirements
are indeed closely interlocked, for there would be no true equality
between a majority and a minority if the latter were deprived of its
institutions, and were consequently compelled to renounce that which
constitutes the very essence of its being as a minority. [17]

Judge Tanaka in the
South West Africa Case also commented that the protection of minority
groups, as a relevant difference, would justify a differentiation in treatment:

a minority group
shall be guaranteed the exercise of their own religious and education
activities. This guarantee is conferred on the members of a minority
group, for the purpose of protection of their interests and not from
the motive of discrimination itself. By reason of protection of the
minority this protection cannot be imposed upon members of minority
groups, and consequently they have the choice to accept it or not.
[18]

Indigenous people,
as a special kind of minority, have the right to maintain the basic characteristics
that distinguish them from non-Indigenous people. The human rights treaty
committee bodies have elaborated the requirements to enable Indigenous
people to maintain their distinctive cultures. These requirements form
part of states' obligations to guarantee equality and non-discrimination
before the law.

The Committee on
the Elimination of Racial Discrimination has confirmed that in their application
to Indigenous peoples, the Convention's obligations require States inter
alia to:

(a) recognise and
respect Indigenous distinct culture, history and 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
origin or identity;

(c) provide Indigenous
peoples with conditions allowing for a sustainable economic and social
development compatible with their cultural characteristics;

(d) ensure that
no decisions directly relating to the rights and interests of Indigenous
peoples are taken without their informed consent;

(e) ensure that
Indigenous communities can exercise their rights to practise and revitalise
their cultural traditions and customs, to preserve and practise their
languages; and

(f) recognise and
protect the rights of Indigenous peoples to own, develop, control and
use their communal lands and territories and resources and, where they
have been deprived of their lands and territories traditionally used
or otherwise inhabited or used without their free and informed consent,
to take steps to return these land and territories. Only where this
is for factual reasons not possible, the right to restitution should
be substituted by the right to just, fair and prompt compensation. Such
compensation should as far as possible take the form of lands and territories.
[19]

The CERD Committee's
General Recommendation on Indigenous Peoples includes the recommendation
at (d) above that states ensure that no decisions directly relating to
the rights and interests of Indigenous peoples are taken without their
informed consent. Thus substantive equality is not just about equal outcomes
for Indigenous people but requires the effective participation of Indigenous
people in the process of determining such outcomes.

The Human Rights
Committee has provided further guidance on the application of the equality
standard under Article 27 of the ICCPR [20] to the situation
of Indigenous peoples. In several cases considered by the Human Rights
Committee under the First Optional Protocol to the ICCPR the Committee
has established the following principles:

• For it to be
  valid and not breach Article 27, a restriction upon the right of an
  individual member of a minority must be shown to have a reasonable and
  objective justification and to be necessary for the continued viability
  and welfare of the minority as a whole. [21]
  
• The right of a
  member of a minority group to enjoy their own culture must be considered
  within the relevant socio-economic context. Economic activities may
  come within the ambit of Article 27 where they are an essential element
  of the culture of the group. [22]
  
• In considering
  whether the economic activities of the minority group are being interfered
  with in such a way as to threaten the way of life and culture of the
  community, the Committee will take into account historical inequities
  in treatment. [23]
  
• The types of economic
  activities of the minority group that are relevant are not limited to
  activities that support a traditional means of livelihood. They may
  be adapted to modern practices. [24]
  
• A countervailing
  consideration will be the role of the State in encouraging development
  and economic activity. [25] In doing so, the State
  is under an obligation to ensure that such activity has, at most, only
  a 'limited impact on the way of life of persons belonging to a minority.'
  [26] Such a 'limited impact' would not necessarily
  amount to a 'denial' of the rights under Article 27. [27]
  
• The Committee
  will consider whether the State has weighed up the interests of the
  complainant with the benefits of the proposed economic activity. Large
  scale activities, particularly involving the exploitation of natural
  resources, could constitute a violation of Article 27. [28]
  
• In assessing activities
  in the light of Article 27, State parties must take into account the
  cumulative impact of past and current activities on the minority group
  in question. Whereas 'different activities in themselves may not constitute
  a violation of this Article, such activities, taken together, may erode
  the rights of (a group) to enjoy their own culture.' [29]
  
• The Committee
  will consider whether the State has undertaken measures to ensure the
  'effective participation' of members of minority communities in decisions
  that affect them. [30]

The CERD Committee
recently highlighted the connection between ensuring compliance with the
non-discrimination principle and ensuring the survival of the cultural
identity of Indigenous peoples.

In many regions of
the world 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 to colonists,
commercial companies and State enterprises. Consequently, the preservation
of their culture and their historical identity has been and still is jeopardised.
[31]

The Committee called
on State Parties to take all appropriate means to combat and eliminate
discrimination against Indigenous people, including by recognising and
protecting their cultural identity.

Participation
rights

The second set of
international human rights standards relevant to Indigenous groups is
those rights which require the participation of Indigenous people in decisions
that affect them. These are enshrined in:

• Article 1 of
  the ICCPR; and
  
• Article 1 of the
  ICESCR. [32]

The broad principle
underlying these rights is that of self-determination. Article 1 of the
ICCPR and ICESCR states,

1. All peoples
have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development.

2 All peoples
may, for their own ends, freely dispose of their natural wealth and
resources… In no case may a people be deprived of its own means
of subsistence.

3. The State
parties to the present Covenant… shall promote the realisation
of the right of self-determination, and shall respect that right,
in conformity with the Charter of the United Nations.

The right of self-determination
has its origins in the process of decolonisation. It has generally been
applied to effect a transfer of power from colonial powers who have existed
as a minority of a population to a local majority. [33]
However, based on the General Comments of both the CERD Committee and
the Human Rights Committee, there is little doubt that self-determination
is a right which Indigenous Peoples are entitled to exercise.

The CERD Committee
strengthened the notion of political participation in its General Comment
on Indigenous peoples. Noting that for Indigenous people, culture, historical
identity and the right to their lands and resources have been, and remain,
jeopardised through histories of colonisation and exploitation, the Committee
has called on States parties to (among other things)

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. [34]

The Human Rights
Committee also elaborated on this issue of political participation in
its General Comment on Article 27 of the ICCPR in relation to minority
group or cultural rights. In its discussion of the need to protect the
particular cultural relationship of minority groups to the use of land
resources (particularly in the case of Indigenous peoples) the Committee
stated that the enjoyment of culture may require:

measures to ensure
the effective participation of members of minority communities in
decisions which affect them. [35]

Both these Commmittees
recently made observations about Australia's failure to accord Indigenous
people their right to effective participation in the decisions that affect
them. The CERD Committee's decision in March 2000 reflects its dissatisfaction
with the Government's response to Decision 2(54) which urged the government
to renew its negotiations with Indigenous people in order to rectify the
erosion of rights under the amended NTA.

Concern is expressed
at the unsatisfactory response to Committee Decisions 2(54) (March
1999) and 2(55) and at the continuing risk of further impairment of
the rights of Australia's Indigenous communities. The Committee reaffirms
all aspects of its Decision 2(54) and 2(55) and reiterates its recommendation
that the State party ensure effective participation by indigenous
communities in decisions affecting their land rights, as required
under article 5(c) of the Convention and General Recommendation XXIII
of the Committee, which stresses the importance of the ensuring the
'informed consent' of indigenous peoples. The Committee recommends
the State party to provide full information on this issue in the next
periodic report. [36]

On 28 July 2000 the
Human Rights Committee also made concluding observations, specifically
on the rights of Indigenous people under the principle of self-determination
(Article 1 of ICCPR) to control their land and their resources.

9. With respect
to article 1 of the Covenant, the Committee takes note of the explanation
given by the delegation that rather than the term "self-determination"
the Government of the State party prefers terms such as "self-management"
and "self-empowerment" to express domestically the principle
of indigenous peoples exercising meaningful control over their affairs.
The Committee is concerned that sufficient action has not been taken
in that regard.

The State party should
take the necessary steps in order to secure for the indigenous inhabitants
a stronger role in decision-making over their traditional lands and
natural resources (article 1, para 2). [37]

The application of
the principle of self-determination to Indigenous Peoples at international
law challenges the notion that the non-Indigenous state has exclusive
jurisdiction over traditional land; not by replacing it with exclusive
Indigenous jurisdiction, but by challenging the foundations on which the
assertion of paramount control by one group to the exclusion of all others
rests. James Anaya criticizes the theories articulated by Vattel and Hobbes,
which acknowledge and assign rights to only two entities: the state and
the individual. [38] The foundation of international
law in the nation state whose social organisations are characterised by
exclusive territory and centralised and hierarchical authority, means
that Indigenous people, organised through tribal or kinship ties, decentralised
political structures and overlapping territorial spheres, will never benefit
from the international law of nations and its characterisation of states
as 'free, independent and equal':

Vattel thus articulated
the foundation for the doctrine of state sovereignty, which, with
its corollaries of exclusive jurisdiction, territorial integrity,
and non-intervention in domestic affairs, developed into a central
precept of international law. [39]

This approach to
international law legitimised the subjugation of Indigenous people. As
Erica-Irene Daes notes:

…it is of
critical importance to underscore the cultural biases that contributed
to the conceptual framework constructed to legitimize colonization
and the various methods used to dispossess indigenous people and expropriate
their lands, territories and resources. It is safe to say that the
attitudes, doctrines and policies developed to justify the taking
of lands from indigenous peoples were and continue to be largely driven
by the economic agendas of States. [40]

And later:

International
law remains primarily concerned with the rights and duties of European
and similarly 'civilised' States and has its source principally in
the positive, consensual acts of those States. [41]

The principle of
self-determination challenges the assumptions of an international law
based on exclusive territorial jurisdiction. The assertion by Indigenous
people of this right as a collective right also challenges the notion
that the only recognisable entities at international law are the state
and the individual.

Any conception
of self-determination that does not take into account the multiple
patterns of human association and interdependency is at best incomplete
and more likely distorted. The values of freedom and equality implicit
in the concept of self-determination have meaning for the multiple
and overlapping spheres of human association and political ordering
that characterize humanity. Properly understood, the principle of
self-determination, commensurate in the values it incorporates, benefits
groups - that is, 'peoples' in the ordinary sense of the term - throughout
the spectrum of humanity's complex web of interrelationships and loyalties,
and not just peoples defined by existing or perceived sovereign boundaries.
[42]

Not only does the
principle of self-determination challenge the assumptions on which the
sovereign state relies, it is particularly confronting to those states
whose assumptions depend on the annexation of Indigenous people's territory
without their consent. Thus in the Western Sahara case, [43]
the International Court of Justice refused to give weight to the legal
theory on which the land was acquired and preferred instead to 'give precedence
to the present-day aspirations of aggrieved peoples over historical institutions'.
[44]

Acknowledging the
challenge that self-determination poses to the sovereign state as the
foundation of international law assists in understanding the response
of governments to international criticism over their failure to accord
this right to Indigenous people. The Australian Government's recent review
of international treaties can be understood as a response to the challenge
that human rights obligations, and in particular the right to self-determination
pose to State power. It also casts light on the change in government policy
on Indigenous matters which resulted in the withdrawal of the term 'self-determination'
in relation to Indigenous policy. In its place the Government prefers
to use a more individualistic notion such as 'self-empowerment' or 'self-management'.
These terms do not challenge the state/individual dichotomy on which state
power is based.

The right to self-determination
forms the basis on which Indigenous people may share power within the
existing state. It gives Aboriginal people the right to choose how they
will be governed. Yet the obligation placed on Australia at international
law to accord this right to Indigenous people has not been effective in
ensuring Indigenous people have control over their land, their resources
and the form of governance which determines the nature of this control.

---

1
McKean, W., Equality and Discrimination under International Law,
Clarendon Press, Oxford, 1983, pp271-277.

2 Brownlie, I., Principles of Public International
Law, 3rd edition, Clarendon Press, Oxford, 1979, pp. 596-598.

3 Triggs, G., 'Australia's Indigenous Peoples: Evolving
International Law', Unpublished Article, 1998, p3. See also Harris, DJ.,
Cases and Materials on International Law, 4th edition, Sweet and
Maxwell, London, 1991, pp790-792.

4 S Pritchard 'Special Measures' in Race Discrimination
Commissioner Racial Discrimination Act

1975 - A Review, Human Rights and Equal Opportunity Commission,
Sydney, 1995, pp189-190. See also Bayefsky, A., 'The Principle of Equality
or Non-Discrimination in international Law' (1990) 11 Human Rights
Law Journal 1, p27.

5 South West Africa Case (Second Phase) {1966}
ICJ Rep 6, pp303-304, p305.

6 Race Discrimination Commissioner, Alcohol Report, HREOC,
Sydney, p25 quoting Thornton, M., The Liberal Promise: Anti-Discrimination
Legislation in Australia, Oxford University Press, Melbourne 1990,
p16.

7 W McKean, "The Meaning of Discrimination in International
and Municipal Law" (1970) 44 British Yearbook of International
Law 178 at 185-186; G Triggs, "Australia's Indigenous Peoples
and International Law" (1999) 23 Melbourne University Law Review
372 at 379-381; also Australian Law Reform Commission, Recognition
of Aboriginal Customary Laws, Report No 31(1986) paras 150, 158.

8 Human Rights Committee, General Comment XVIII, Non-discrimination
(1989), paras 8, 9, in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1,
p26.

9 Committee on the Elimination of Racial Discrimination,
General Recommendation XIV on Article 1 (1993), para 2, in Compilation
of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, ibid. at 67. (Bold added). See also: Human Rights Committee,
General Comment XVIII, Non-discrimination (1989), paras 10 &
13, ibid. p26.

10 Human Rights Committee, General Comment XVIII,
Non-discrimination (1989), para 13

11 Note, this Committee is dominated by government members.

12 Parliament of the Commonwealth of Australia. Sixteenth Report of
the Parliamentary Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund: on the sustainability of the decision
of the CERD Committee on 18 March 1999, June 2000 (the PJC Report), pp37-58.

13 Ibid, p37

14 Ibid, pp39, 45.

15 Ibid, p49

16 Race Discrimination Commissioner, The CDEP Scheme
and Racial Discrimination, HREOC, Sydney, 1997, p40.

17 Minority Schools in Albania (1935) OCIJ Ser
A/B No 64, p17; See the discussion of the case in Pritchard, S., 'Special
measures', op.cit., p185.

18 South West Africa Case (Second Phase), Op.cit.

19 Committee on the Elimination of Racial Discrimination,
General Recommendation XXIII (51) concerning Indigenous Peoples, adopted
18 August 1997, UN Doc CERD/C/51/Misc 13/Rev 4 (1997) paras 4-5.

20 The First Optional Protocol, which has been acceded
to by Australia, allows people within nations to bring complaints before
the Human Rights Committee alleging breaches of provisions of the ICCPR
by the State.

21 Kitok v. Sweden, Communication No. 197/1985,
UN Doc CCPR/C/33/D/197/1985 (1988), para 9.2.

22 Ibid, para 9.3.

23 Chief Ominayak and the Lubicon Lake Cree Band v
Canada. Communication No 167/1984, Report of the Human Rights Committee,
UN Doc A/45/40 (1990).

24 Lansman et al v Finland No. 1 (24 March 1994)
CCPR/C/49/D/511/1992.

Ibid, para 9.4.

25 Ibid.

26 Ibid

27 In this case the Committee found that the economic
activity proposed was of limited impact and did not operate as a denial
of the cultural rights of the Sami.

28 Lansman et al v Finland No. 2, (25 November
1996) CCPR/C/58/D/671/1995, paras 10.5, 10.7.

29 Ibid, para 10.7.

30 Ibid.

31 CERD Committee, General Recommendation XXIII (51),
Op. cit., para 3.

32 See also Article 1 of the Charter of the United Nations
and the Declaration on the Principles of International Law Concerning
Friendly Relations and Co-Operation Among States, United Nations General
Assembly 2625 (XXV), 24 October 1970, 'The principle of equal rights and
self-determination of peoples'.

33 For an overview of the general legal principles of
self-determination see Steiner, H., and Alston, P., International Human
Rights In Context: Law, Politics, Morality, Clarendon Press, Oxford,
1996, pp972-1020.

34 Committee on the Elimination of Racial Discrimination
General Recommendation XXIII (51) concerning Indigenous Peoples,
op. Cit., para 5.

35 Human Rights Committee General Comment 23 on the
rights of minorities (Article 27) op.cit, para 7.

36 Committee on the Elimination of Racial discrimination,
Concluding Observations by the Committee on the Elimination of Racial
Discrimination: Australia, UN Doc CERD/C/304/Add.101, 19/04/2000.
para 9. (Herein 'CERD Committee, Concluding Observations 2000')

37 Human Rights Committee, Consideration of Reports submitted
under Article 40 - Concluding Observations of the Human Rights Committee
- Australia, (69th session), 28th July 2000, UN Doc CCPR/CO/69/AUS, para
9 (Herein Human Rights Committee, Concluding Observations)

38 Anaya, S. J.,Indigenous Peoples in International
Law, Oxford University Press, New York, 1996, p13.

39 Ibid, p15.

40 Daes, Erica-Irene, Final Report Indigenous Peoples
and Their Relationship to Land, UN Doc E/CN.4/Sub.2/2000/25., para
21.

41 Daes, op cit, para 26.

42 Anaya, op cit, p79.

43 Advisory Opinion on Western Sahara [Western
Sahara Case] [1975] ICJR p12

44 Anaya, op cit, p84.

Last updated 7 October 2003