Native Title and the Racial Discrimination Act
Speech by Zita Antonios, Race Discrimination Commissioner, Ethnic Community Council’s Forum on Native Title, 30 October 1997; 19 November 1997
Native title is a complex issue. It raises many important questions for Australian society and we should not underestimate the complexity of the issues involved. Critically, racial discrimination law provides important standards and parameters that I believe can be used as a guide in achieving a result that benefits all Australians.
One matter that needs to be acknowledged from the outset is that the recognition of Indigenous peoples’ right to land is critical to their survival. The ability of Indigenous people to preserve their distinct identity is closely related to their ability to gain recognition of their rights to land. Land provides a basis for all Indigenous societies.
Additionally it needs to be acknowledged that Indigenous Australians are the most disadvantaged members of Australian society. Indigenous people are disadvantaged today because of their history of dispossession. It needs to be remember that until relatively recently, the official attitude towards Indigenous people was that they were a dying race and that their best opportunity lay in assimilation. Aboriginal people were segregated on mission settlements and deliberately taken away from their traditional lands.
They lost languages, culture, religion and all of this is tied to their loss of land. Recognition of Indigenous peoples right to land is one very important way that their current disadvantage can be addressed.
This process of dispossession is not ancient history. The policy of assimilation by which Indigenous children were removed from their parents was operating up to the 1970s. This was part of the pattern of dispossession that has characterised the relationship of Indigenous people with the rest of Australian society.
The recognition of native title by The High Court in the Mabo decision in 1992 was a real turning point.
Racial discrimination law is important because it provides the only real bench mark with which to assess policies affecting native title holders and other owners of land in Australia.
Racial discrimination law is not about preferring one racial group over another. It is about according different racial groups’ rights full respect. This is the main message that racial discrimination law gives government in the current debate over Wik and the ten point plan. Indigenous Australians do not want preferential treatment but they do demand equal respect for their property rights. Respect for the rights of Indigenous people has important consequences for us all.
The principle of racial non-discrimination is a significant legal principle. It is federal law in Australia and a basic principle of international law.
The Racial Discrimination Act became law in 1975. It was the first commonwealth law dealing with human rights and, in many ways, is the most comprehensive. It implements Australia’s obligations under the International Convention on the Elimination of all Forms of Racial Discrimination. The Act is a product of its time and the emerging consciousness of the problem of racial discrimination. In 1971, it was the United Nations Year Against Racism and also the year in which violent protests took place in Australia and New Zealand against the all white South African Springbok rugby team. Attitudes to race were also changing due to post war migration. The existence of large communities of non-English speaking backgrounds people fundamentally changed people’s perception of what was acceptable in terms of race. There was also a growing awareness of the injustice of the treatment of Indigenous Australians. In many ways, the Racial Discrimination Act came about as a result of the development of a multicultural society in Australia.
As mentioned earlier, the International Convention on the Elimination of all Forms of Racial Discrimination deals with racial non-discrimination. The existence of a specific human rights treaty dealing with racial discrimination reflects the importance of the prohibition against racial discrimination among the international community. The International Covenant on Civil and Political Rights also expressly prohibits discrimination.
The Commonwealth has a good record in this area, it signed the International Convention on the Elimination of all Forms of Racial Discrimination within 6 months of it being open for signature. The Racial Discrimination Act implements into Australian domestic law the main principles of the Convention. The Commonwealth has also signed the International Covenant on Civil and Political Rights.
A common criticism of international law and human rights law is that it is soft law. That it is the statement of grand general principles and is not practical. I do not accept this criticism. To take this approach in relation to the principle of non-discrimination is extremely unwise for a number of reasons.
The Commonwealth of Australia is internationally accountable for discrimination, including by state or territory governments. It has accepted the jurisdiction of the United Nations Human Rights Committee to consider complaints concerning whether Australian law complies with the standards of the International Covenant on Civil and Political Rights. Australia has also recognised the jurisdiction of the Committee on the Elimination of Racial Discrimination. This committee can hear complaints about racial discrimination.
Criticism of Australia from such United Nations committees will seriously impair our credibility as a racially tolerant society. Other nations will make an assessment of the sort of place Australia is in view of how these committees judge us.
Many people have asked me how the Federal Government can get away with bringing in laws that breach the Racial Discrimination Act. The answer is that it is a feature of federal law that more recent laws, if inconsistent, override earlier laws. Legislation passed after the Racial Discrimination Act has the power to override the RDA.
Generally, the Parliament has been very cautious not to pass legislation that might be considered racially discriminatory. As you may remember, there was some concern that the legislation implementing the two year social security waiting period for newly arrived residents had a racially discriminatory effect. This concern was probably unfounded but the political and parliamentary debates around the waiting period legislation showed that racial non-discrimination was considered an extremely important principle of public policy. There was real concern by all sides of politics that the principle of racial non-discrimination should be complied with.
The current proposed amendments to the native title act prompted by the Wik decision are significant. Last night, the House of Representatives debated the so called Wik Bill. One of the main issues was whether the bill complies with the racial discrimination act. Many respected people have described some of the measures proposed as racially discriminatory. The government has not produced any legal advice to contradict the numerous QC’s opinions that state that the bill is racially discriminatory and will breach Australia’s human rights obligations. The main sense in which the bill is said to breach the RDA is in the manner in which it advantages one group, pastoralists, at the disadvantage of Indigenous land owners.
If the Parliament proceeds with these measures there is a very real possibility that it will breach the principles enshrined in the Racial Discrimination Act and Australia’s international obligations. This deliberate breach of the principle of racial non-discrimination will significantly lessen the respect that the principle of racial non-discrimination has enjoyed.
You should all be aware that the prohibition against racial discrimination provides an important safeguard that constrains government in its treatment of ethnic groups. The debate surrounding the waiting period legislation shows that the Act provides an important constraint on government in implementing policies that reduce the entitlements of otherwise politically vulnerable groups. The implementation of the ten point plan will water down the RDA. Australia’s ethnic communities should be concerned about what is occurring with native title.
One of the difficulties posed by native title is that it involves one racial group possessing an interest in land that the rest of society cannot. Some people have described native title as racially discriminatory. This view is wrong and misinterprets some basic concerns of non-discrimination law.
The principle of non-discrimination is not about treating all racial groups equally. Equality is achieved when different groups with different needs are treated in a way that respects those differences rather than ignores them. We all know that different ethnic groups require different treatment which respects their cultures, language and traditions if they are to be equal with other Australians.
This understanding of equality is reflected in the International Convention and the RDA. Both contain a provision that allows special measures. Special measures permit action to be taken that assists disadvantaged racial groups. Special measures recognise that historical patterns of racism entrench disadvantage and that the prohibition of racial discrimination alone is not enough to overcome racial inequality.
The current debate over native title is really about extinguishment. This is where the protection that racial discrimination law provides comes into play. Extinguishment of native title needs to be understood for what it is. The extinguishment of native title is the taking away of a person’s property rights because they belong to a particular racial group.
The native title act provides a way to recognise native title by our legal system. The Native Title Act does not create native title. It is a common law right that exists due to an Indigenous group’s continuous traditional association with their land.
The current legislative arrangements for the recognition of native title are not unbalanced in favour of native title claimants. While the Act does contain provisions that benefit native title claimants such as the right to negotiate. It also contains a comprehensive validation regime, that guarantees many non-Indigenous peoples’ land titles and in effect extinguishes large amounts of native title.
Contrary to some people’s view, there has been in place clear and certain procedures that all governments and stakeholders could use when dealing with land where native title exists. As long as governments complied with the procedures in the Native Title Act, they were not restricted in their dealings in land.
The Wik judgment contains an important principle for reconciliation between Indigenous and non-Indigenous people. The Court’s judgment outlined the possibility of co-existence. Namely that a pastoralist’s interest and a native title holder’s interest in land could co-exist together. This is the approach that I think we need to take, and will ultimately have to adopt, in order to have true reconciliation.
Last updated 1 December 2001
