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A Human Rights Approach to Native Title Agreements

Presentation given on 30 August 2001 to the Representative Bodies Conference at Townsville from 28 August to 30 August 2001 by Margaret Donaldson.

I wish to pay my respects to the traditional owners and thank them for permitting me to speak on their land.

This conference has confirmed that native title agreements are emerging as an important tool in defining the rights of native title holders over their land.

As suggested by David Bennett Q.C. and others in the course of this conference, agreements are not negotiated in a vacuum but are taking place against a background of rather confused and uncertain legal principles contained primarily in the Native Title Act. Indeed some would suggest that it is because of the uncertainty of these principles that so many native title agreements are taking place at this time.

The concern from a human rights perspective is that the legal principles contained in the Native Title Act which currently form the benchmark for agreements making are inconsistent with Australia's international human rights obligations.

Last year the Native Title Act was considered by 3 international human rights committees. The UN human rights committees oversee the performance of signatory States under particular treaties and consider, at a meeting in Geneva where States attend to put oral submissions, the periodic reports submitted by States regarding their obligations under the treaty. NGO's and National Human Rights Institutions, including HREOC may attend this meeting as observers and provide information to the committee informally but do not have speaking rights.

Most people will be aware of the decision of the Committee on the Elimination of Racial Discrimination in March 1999 which found significant sections of the amended NTA to be discriminatory; in particular the validation, confirmation and primary production upgrade provisions as well as the winding back of the right to negotiate.

This same Committee met 12 months later in March 2000 to consider Australia's periodic report for the six preceding years. In their Concluding Observations the Committee stated;

Concern is expressed at the unsatisfactory response to decisions 2 (54) (March 1999) and 2 (55) (August 1999) of the Committee and at the continuing risk of further impairment of the rights of Australia's Indigenous communities. The Committee reaffirms all aspects of its decisions 2 (54) and 2 (55) and reiterates its recommendation that the State party should 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 securing the "informed consent" of indigenous peoples. The Committee recommends to the State party to provide full information on this issue in the next periodic report.

The CERD Committee reiterated the finding that the amended NTA is discriminatory:

The Committee notes that, after its renewed examination in August 1999 of the provisions of the NTA as amended in 1998, the devolution of power to legislate on the "future acts" regime has resulted in the drafting of state and territory legislation to establish detailed "future acts" regimes which contain provisions further reducing the protection of the rights of native title claimants that is available under Commonwealth legislation. Noting that the Commonwealth Senate on 31 August 1999 rejected one such regime, the Committee recommends that similarly close scrutiny continue to be given to any other proposed state and territory legislation to ensure that protection of the rights of indigenous peoples will not be reduced further.

Four months later in July 2000 Australia's performance under the International Covenant on Civil and Political Rights was considered by the Human Rights Committee which said;

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 (art. 1, para. 2).

The Committee is concerned, despite positive developments towards recognizing the land rights of the Aboriginals and Torres Strait Islanders through judicial decisions (Mabo, 1992; Wik, 1996) and enactment of the Native Title Act of 1993, as well as actual demarcation of considerable areas of land, that in many areas native title rights and interests remain unresolved and that the Native Title Amendments of 1998 in some respects limit the rights of indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands.

One month later, in September 2000 the Committee on Economic Social and Cultural Rights, considering Australia's performance under that Covenant also commented on the Native Title Act.

The Committee notes with regret that the amendments to the 1993 Native Title Act have affected the reconciliation process between the State party and the indigenous populations, who view these amendments as regressive.

In the past two years all three UN Committees that monitor the major human rights treaties have expressed their concern that the amended Native Title Act does not meet Australia's obligations at international law.

While the Federal Government has not acted upon the recommendations of these UN Committees by amending the Act, the international dialogue around native title has produced some significant developments.

It is now accepted by the Federal Government that the standard of equality at international law is a substantive one. That is, that the recognition and protection of cultural identity by differential treatment is permitted and, at times, required by the notion of equality at international law. It is certainly not an act of discrimination. This can be contrasted to a formal equality approach in which any differential treatment, no matter what its purpose, is discriminatory and requires everyone be treated the same.

While the Aboriginal and Torres Strait Islander Social Justice Commissioner has some concerns about the type of differential treatment that the government's definition of substantive equality permits, he welcomes the move away from the idea that racial equality is no more than identical treatment. [1]

I would suggest that a major factor in the Federal government's acceptance that the international law standard of equality is a substantive one is that the subject of the dialogue concerning equality is native title. It is hard to maintain a formal equality approach to native title. Native title is a unique interest that only Aboriginal people can enjoy. A formal equality approach would find that the recognition and protection of an interest that can only be enjoyed by one race would itself be discriminatory.

Nor can native title be classified a special measure; an act of beneficence extended for a limited period of time by the government to Indigenous people to overcome their historical disadvantage. Native title is a right inherent to the culture Indigenous people.

It can be seen from what Sarah Pritchard and Bret Walker Q.C. said yesterday that international law has been and should be influential in developing the domestic law on native title. What I am suggesting is that Indigenous people, by taking their struggle to an international forum, have been significant in shaping that international law, especially the concepts of equality and self-determination.

In view of the current international dialogue around native title and human rights, and the acceptance of the obligation to recognise and protect Indigenous culture, native title agreement making should occur in the context of the following human rights principles;

(a) Non-extinguishment principle. Native title parties should not be required to give up native title in order to access or enjoy the benefits that arise from negotiation.

(b) Effective Participation. International human rights principles recognise that Indigenous people have a right to effective participation in decision affecting their traditional lands. In relation to the negotiation of native title agreements this right should lead to;

(c) Native title is a group right. Under the principle of self-identification (see General Recommendation VIII of CERD Committee) the group itself should determine its own membership. Compensation should also be based on the inter-generational nature of the right.

How then can native title agreements be framed by these principles?

Firstly the Native Title Act should, after negotiation with Indigenous People and with their informed consent, be amended consistently with Australia's international human rights obligations. The Lardil decision, discussed yesterday by Andrew Chalk, has thrown up an area of the Act where amendment is urgently needed.

Secondly, the Aboriginal and Torres Strait Islander Social Justice Commissioner has advocated, in his submission to the Inquiry into Agreements, conducted by the Parliamentary Joint Committee on Native Title, that state and territory governments, together with peak bodies, enter into negotiations (not merely consultations) with native title holders to agree upon frameworks on either a regional or state-wide level which establish a human rights basis for site specific or project specific agreements.

These framework agreements should;

If native title agreements are framed by these principles they will form a stable and enduring basis for the long-term co-existence of interests on country.

If, on the other hand, native title agreements are based on legal principles that are discriminatory then they will always be contingent upon the eradication of these principles.

1. The Aboriginal and Torres Strait Islander Social Justice Commissioner's concerns are explained in his Native Title Report 2000, chapter one.

Last updated 1 December 2001