Native Title Report 2000: Chapter 1: Nation in dialogue

Chapter 1: Nation in dialogue

The application of human rights principles to native title has been the subject of an ongoing dialogue taking place both nationally and internationally in the reporting period. This dialogue has occurred between the Australian government and and two UN treaty committees, on the Elimination of Racial Discrimination (August 1999 and March 2000) and the Human Rights Committee (HRC) (July 2000); between Indigenous non-government organizations and UN committees on each of these occasions; between the government and Indigenous and non-Indigenous representatives before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Fund (PJC) in February and March ߐ and, at a broader level, among Australian citizens and a range of institutions, as part of a continuing debate about the meaning of reconciliation.

While this discourse has elevated the overall level of understanding within the community and within government of the meaning of equality in relation to Indigenous people, it has not resulted in amendments to remove the discrimination within the NTA. The NTA continues to authorise discriminatory state legislation; case law continues to confirm the inadequate protection extended by the NTA to native title holders; native title agreements continue to reflect the inadequate bargaining power offered Indigenous people under the NTA in relation to the management of their land; and Indigenous culture continues to be eroded throughout Australia. The inevitable consequences of the present legislative regime governing native title throughout Australia if left unamended are documented in Chapter 5 of this report.

Yet, despite this persisting discrimination, it is my conviction that over time the dialogue on equality and human rights will produce tangible results for Indigenous people. Through this process the notion of equality is informed by a range of views that are tested against each other. Gradually positions change as their proponents come to understand the impact of their 'logic' on others. Apart from these internal mechanisms for modifying and testing ideas and opinions, the context in which the dialogue takes place can have a significant effect on the positions adopted and the arguments put. This contextual effect was illustrated by the striking contrast between the arguments put to the electorate by the government in the domestic arena to justify the proposed amendments to the NTA in 1998 and its arguments in the international arena as to why these amendments meet international standards of equality under the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) and the International Convention on Civil and Political Rights (ICCPR). In the domestic arena, the notion of equality was used to justify the winding back of procedural and substantive protections in the NTA on the basis that other landholders were not given these same rights. In the international arena it was accepted by the government that, because of its unique nature, native title required particular protection. The government conceded that the appropriate standard of equality to be applied to the amendments was one which permitted different treatment where the distinct characteristics of the group justified this. It then argued that the amended NTA met this international standard of equality.

The inquiry by the PJC into the sustainability of the CERD Committee's decision (1) was, in effect, a re-hearing of what had already been argued before the CERD Committee in Geneva one year earlier. The context of this re-hearing however was a domestic one in which the politics of 'balancing' interests, fought out during the amendment debate, were to re-emerge.

The result was an attempt in the majority report on the inquiry (2) to conflate these two contexts, the domestic and the international, such that human rights standards could be seen to justify past political deeds. The CERD Committee's decision, on the other hand, emphasised the need to separate human rights from political imperatives, seeking instead to distil the non-derogable principles which must proscribe political will.

It is my view that the survival of Indigenous culture within the broader Australian society depends, not only on maintaining this separation, but in persuading others that such a separation is fundamental to a civil society. If the power of interests is to determine the basis of Australian society then Indigenous people, as a small minority group, will continue to lose their culture, their land, and their language to the will of the non-Indigenous majority. If however human rights are given a heightened position within civil society, acting as a brake on any one interest dominating and destroying the interests of others, then Indigenous people will enjoy their unique culture while still participating in the broader society. This is where I hope the dialogue that others and I have been engaged in over the past year will take us. While the immediate impact has not been felt, particularly in relation to the NTA, the longer-term goal is to bring about this shift in thinking.

The dialogue with the Parliamentary Joint Committee on Native Title

As indicated above, the inquiry by the PJC into the CERD Committee decision that the amended NTA did not meet Australia's obligations under the ICERD was an opportunity to reappraise within a domestic setting the arguments raised by both the government and Indigenous representatives before the CERD Committee. As in the international arena, the PJC inquiry dealt with the fundamental assumptions underlying the amendments to the NTA and evaluated these against the standard of equality. Such a dialogue is invaluable, particularly at a stage where the Act has been in operation for two years and is having an impact on Indigenous communities throughout Australia.

Placing the international law debate within a domestic setting also served a broader purpose. It provided an opportunity to many groups with an interest in the native title legislation, including the National Farmers' Federation and the Minerals Council of Australia, to participate in the process of reconciling their position with a human rights approach. Their participation broadened the dialogue, giving it a distinctive character, quite different to that which took place in Geneva one year before. As indicated, this process of maintaining a domestic dialogue around human rights assists the development of a civil society whose fundamental assumptions extend beyond self-interest.

Some of the important issues that arose out of the PJC inquiry are now discussed.

Treating differences differently

An acceptance in the majority PJC report that the standard of equality at international law incorporates substantive equality distinguished the dialogue with the PJC from public debate during the amendments to the NTA in 1998.

Equality, as the term is now understood under customary international law, incorporates the idea that differences in treatment are permissible, in order to achieve real or substantive equality. (3)

What this means is that the government, in line with international human rights definitions, accepts that racial equality is not always achieved merely by treating individuals or groups of particular ethnic origin the same as those who do not originate from that background. Different treatment is permitted, and in many circumstances required, in order to achieve equality.

Judge Tanaka of the International Court of Justice in the South West Africa Case, stated the principle succinctly:

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. (4)

Having accepted that substantive equality is an appropriate standard at international law, the PJC was left to grapple with the question of what differences should be treated differently in order to achieve real or substantive equality.

In evaluating the PJC's response to this question it is important to bear in mind that from a human rights perspective, the fundamental concern is that individuals or groups are not discriminated against on the basis of their race. That is, that they do not suffer disadvantage or invidious treatment because of their racial origin. Differential treatment that does this is a breach of international law. No rationale can justify or excuse such treatment.

Not all differential treatment based on race has a negative, discriminatory effect. Some differential treatment, such as measures to redress past discrimination, or to protect the culture and language of a particular ethnic group, is aimed at ensuring that the recipients of this treatment enjoy their human rights to the same extent as others. This differential treatment is not discriminatory and is the basis of a substantive equality approach.

It is also consistent with the Committee's General Recommendation XIV which excludes differential treatment consistent with the objectives and purposes of the Convention from the definition of discrimination.

A differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes judged against the objectives and purposes judged against the objectives and purposes judged against the objectives and purposes judged against the objectives and purposes of the Convention of the Convention of the Convention of the Convention 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. (5) (emphasis added)

Far from such treatment being outlawed by international law, there are occasions when such differential treatment is required by conventions such as ICERD, in order to achieve equality. The recognition and protection of native title illustrates this point.

The recognition of native title in the Mabo decision (6) is a recognition of the distinct culture of Indigenous people. It is a title to land that only Indigenous people can enjoy.

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. (7)

The failure to recognise and protect the distinct relationship Indigenous people have with their land is a failure to give Indigenous culture the same respect that is given to non-Indigenous culture. The High Court made it clear in Mabo that the failure to recognise native title was discriminatory:

The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. (8)

The obligation to recognise and protect the Indigenous relationship to land must be understood in terms of a substantive equality obligation to treat differences differently. The level of protection required to ensure native title holders are given the same security in the enjoyment of their title as non-Indigenous title holders must also be gauged from this same understanding. Equal protection does not mean that native title holders are treated exactly the same as non-Indigenous title holders. The protection must be directed towards the enjoyment of the unique character of the title. My submission to the PJC (Appendix 1) sets out in more detail how the amendments to the NTA fail to provide the required level of protection measured against an equality standard.

The PJC majority report

The majority report of the PJC concedes the relevance of substantive equality to Australia's obligations under ICERD, and then seeks to explain what substantive equality requires of States at international law, and how the amended NTA meets this standard.

Its approach to this task is to distinguish substantive equality from formal equality, the essential distinction being the treatment of difference. Substantive equality permits different treatment on the basis of race in order to achieve equality whereas formal equality requires racial groups be treated the same. (9)

The next stage is to determine what different treatment is permitted under substantive equality. It is at this point that some confusion arises as to what principles justify the adoption of differential treatment. Early in the majority report the principle is pronounced to be:

Equality, as the term is now understood under customary international law, incorporates the idea that differences in treatment are permissible, in order to achieve real or substantive equality. The State must be able to show that any such difference in the treatment of groups or individuals is not arbitrary, and can be reasonably and objectively justified by reference to the distinctive characteristics of the group or individual. The term 'discrimination' is now understood as meaning only unjustified or invidious distinctions. (10)

This definition is consistent with the fundamental concern of a human rights approach that people or groups do not suffer disadvantage or invidious treatment because of their racial origin. It is also consistent with the obligation that underlies the recognition of native title - to give equal respect to the cultural identity of people or groups.

The principle, that differential treatment must not be invidious and must be justified by reference to the distinct characteristics of the group or individual, is significantly modified in a restatement of the principle later in the report:

To be justified as a substantive equality measure, the different treatment must be based on relevant or justifiable distinctions, and must be appropriately adapted to the distinctive characteristics of the group or individual. (11)

Significantly the requirement that the treatment must not be invidious is not mentioned. The justification by reference to the distinctive characteristics of the group is now only one arm of the test which also permits 'relevant or justifiable distinctions', without stipulating the criteria by which relevance or justifiability is to be measured.

This shift in the test is important because it raises the possibility that differential treatment that has a detrimental effect on an already disadvantaged racial group might be permitted through the substantive equality door even though such treatment would not be permitted under a formal equality approach.

What was only a possibility at this stage in the report becomes reality in the third manifestation of the principle which is applied to the four sets of provisions found by the CERD Committee in March 1999 to be discriminatory; the validation provisions, the confirmation provisions, the primary production upgrade provisions and the changes to the right to negotiate provisions. (12) In considering each of these provisions the differential treatment of native title holders, whose interests are subordinate to the interests of non-Indigenous title holders, is permitted under a substantive equality test, if the objectives of the provisions are 'legitimate'. It can be seen from an examination of the application of this test to the amendments to the NTA that the criteria against which legitimacy is measured are not human rights principles but political considerations. (13)

Applying the test of 'legitimacy' to the NTA amendments

Validation provisions : In relation to the validation provisions, the majority of the PJC argued that the legitimate objective of the differential treatment of native title holders whose interests are either extinguished or impaired, is to provide certainty. It is argued that the assumption that native title was extinguished by a pastoral leasehold prior to the Wik (14) decision was reasonable in all the circumstances and that the validation of acts performed as a result of this assumption is reasonable.

Thus, the validation provisions in the 1998 amendments were enacted for the legitimate purpose of providing certainty and to respond to an unforeseen legal problem. (15)

The interest groups that gain as a result of the validation provisions are expressed to be both pastoralists:

... most of those who 'benefited' from the grant of potentially invalid acts in the intermediate period were not governments but farmers and pastoralists, who acted in good faith and relied on the statements of governments. (16)

and mining interests:

The validation provisions only apply on pastoral leasehold land. Furthermore, the most common interests granted in the intermediate period without complying with the provisions of the Native Title Act were mining leases, which do not extinguish native title because the non-extinguishment principle applies. Therefore, if there has been any extinguishment of native title as a result of the validation provisions, it is likely to have been minimal. (17)

The identification of winners as a result of the validation of intermediate period acts implies that there must also be losers. Clearly, native title holders belong to this class. Certainty has been provided to one group at the expense of another group. The interests of pastoralists and miners have prevailed over the interests of native title holders. The 'legitimation' of the validation provisions by the majority of the PJC is a political justification for discriminatory acts rather than a human rights approach to differential treatment.

Having identified the winners, the majority report then argues that the impact on the native title holders, is minimal. (18) It identifies counterveiling provisions such as, the provision for governments and native title holders to agree to change the effect of the validation provisions; the provisions which reinstate native title where the holders are in possession and the land is vacant crown land; and the provision of compensation where native title is affected by the validation of intermediate period acts. (19)

I comment upon these countervailing provisions in my submission to the PJCt (Appendix 1). (20) In summary, these provisions are inadequate to compensate for the discrimination that has occurred as a result of the validation of intermediate period acts. Their effect is to lessen the impact of the validation provisions rather than offset their discriminatory impact. In relation to validated mining interests, granted over pastoral leaseholds during the intermediate period, native title holders are denied the right to negotiate. Ironically the right to negotiate was introduced into the original NTA in order to offset the discriminatory impact of the validation of past acts. No such countervailing measures were provided to offset the validation provisions of the amended NTA. Indeed the right to negotiate provisions were wound back in the amended NTA. In contrast to the countervailing measures provided under the original NTA to offset the discriminatory validation provisions, the amendments, both discriminatory and countervailing, were not enacted with the agreement of Indigenous people.

Confirmation provisions ; The justification in the majority report for the differential treatment of native title holders which occurs through the confirmation provisions of the amended NTA are also certainty and workability. (21) Native title is extinguished where exclusive possession titles have been granted. If the extinguishment of native title were to be left to the common law to resolve, the Committee argues, this would result in time consuming and costly litigation. (22) In the meantime land holders would be uncertain as to whether native title coexists on their land. For these purposes the extinguishment of native title for the benefit of non-Indigenous title holders is a differential treatment that is justified by reference to these purposes. Accordingly, it is argued, it is not discriminatory. (23) In addition it is argued that the impact of these extinguishments on native title holders is minimal because it merely confirms the common law in relation to extinguishment. (24) There are two responses to these arguments.

First, there is an inconsistency in the propositions underlying the Committee's argument that, on the one hand, the impact of the confirmation provisions are minimal in that they merely confirm the common law position, and on the other hand, that the confirmation provisions are necessary to provide certainty where the position is otherwise unclear.

Any confirmation that restricts itself to matters upon which the existing law is utterly clear and free from doubt will serve little useful purpose. Confirmation provisions that go beyond this (and enact what is, in effect, no more than a best estimate of what the law is) will result in an added measure of certainty. (25)

And two paragraphs later, under the heading 'Limited Effect on Native Title and the Margin of Appreciation', the Committee contradicts its previous proposition,

The Government argues that these provisions do not effect any further extinguishment of native title rights or interests. The titles that are confirmed to have extinguished native title, including all of the Schedule 1 interests, were included because it was assessed that they conferred exclusive possession and had therefore extinguished native title. (26)

It cannot be logically argued that the confirmation provisions merely confirm the common law if the justification for the confirmation provisions is to provide certainty where the common law position on extinguishment is unclear. Secondly, even if the confirmation provisions are a restatement of the common law position, the impact of these provisions on native title holders cannot be classified as minimal. As I argued in my submission to the PJC, the government is not permitted to breach its international obligations because it is 'merely' confirming the common law. (27) Far from exonerating the legislature, where the common law has a discriminatory operation then it is incumbent on the legislature to rectify such discrimination, not enshrine it in legislation. The government's international obligations in respect of the discriminatory impact of recent developments in the common law principles of extinguishment are discussed in Chapters 2 and 3 of this report.

Certainty is provided to non-Indigenous title holders at the expense of native title holders. Such differential treatment is invidious and disadvantages Indigenous people on the basis of their race. Under a human rights approach this differential treatment cannot be justified as meeting either a formal or a substantive equality standard.

Primary production upgrade provisions ; The justification for the amendments that permit pastoral leaseholders to carry out a range of activities (in addition to those authorised by their lease) without negotiating with native title holders whose rights might be affected by these additional activities (28) is that the provisions strike a reasonable balance between the competing rights of native title holders and pastoral lessees. (29) This balance involves the subjugation of native title interests to those of pastoral leaseholders developing the land.

The CERD Committee responded to a similar argument put to it by the government representatives in March 1999 by pointing out, in paragraph 6 of its decision, that the Convention requires that State Parties balance the rights of different groups identifiable by race. (30) 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. The CERD Committee's decision 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. (31)

The PJC's understanding of substantive equality allows invidious differentiation on the basis of race where the government is of the view that the interests of the various stakeholders are balanced. This is not differentiation which is justified by reference to the distinct characteristics of Indigenous people, it is differentiation based on the political exercise of balancing interests.

The right to negotiate

There are two purposes which the majority report cites as justifying the amendments which wind back the right to negotiate, particularly where native title coexists on pastoral leasehold land. First, the right to negotiate is an impediment to resource and commercial development. (32) Second, where native title coexists on pastoral leasehold land, native title is of a more limited character and the right to negotiate should be pegged back to reflect this more limited right. (33) In any case, it is argued, the amendments cannot be discriminatory because the right to negotiate is a special measure and limiting its operation does not offend the principle of substantive equality. (34)

In relation to the first basis, the amendments have the effect of realigning interests so that commercial interests are preferred over the protection of native title. This approach cannot be justified within a human rights framework.

In relation to the second basis, the 'limited' nature of native title as a coexisting right does not legitimate moderating its protection. Indeed, where native title is vulnerable, as it is on pastoral leasehold land, a human rights approach would require the law to provide more protection in order to ensure equal respect for Indigenous customs and traditions.

The argument that the right to negotiate is a special measure and therefore its removal or amendment does not constitute discrimination, was commonly relied on during the parliamentary debate in 1998 to justify the amendments to the right to negotiate. The argument in the majority report is slightly different to that of 1998 in which the government characterised special measures as an optional extra to their formal equality obligation. (35) In the majority report special measures are still an optional extra but in this case they augment, not formal equality, but substantive equality. This is a novel argument.

As stated in the Native title report 1998, the right to negotiate is not a special measure. (36) This follows, as discussed above, from the nature of the rights that the right to negotiate is designed to protect, rights based on the traditions and culture of Indigenous people, not rights bequeathed by a benevolent government. Yet even if it were a special measure, its categorisation as an optional extra is erroneous. As stated in the Native Title report 1998, (37) there are two categories of differential treatment protected within a human rights framework. The first is the right to express one's cultural identity. The second is the provision of special measures aimed at facilitating the advancement of certain racial groups who historically have been disadvantaged by past discriminatory policies. Both these categories are justified by their objective of ensuring the genuine, substantive enjoyment of human rights.

Special measures are not in a category of their own belonging to neither a formal equality approach or a substantive equality approach; an optional extra which government can choose to provide or withdraw at will, without offending the concept, either substantive or formal, of equality. This position is inconsistent with Article 2(2) of ICERD which requires that where human rights are not enjoyed equally, then the provision of special measures are required to ensure equality is achieved between racial groups. In addition the basis for withdrawing a special measure is clearly set out in Article 1(4) of ICERD

...they shall not be continued after the objectives for which they were taken have been achieved. (38)

The justification for the withdrawal of special measures is that they have done their job; they have broken the cycle of discrimination and the target group is no longer in need of special treatment; substantial equality has been achieved. The removal of the full right to negotiate on pastoral leasehold land cannot be justified by reference to these criteria.

The PJC's analysis of the four sets of provisions by reference to a substantive equality approach reveals that the majority of the PJC have sought to justify differential treatment which prefers non-Indigenous interests over Indigenous interests, so long as the purposes are 'legitimate'. Legitimate purposes can include providing certainty to particular interest groups, saving the expense of time consuming litigation, validating mistaken assumptions about future developments in the common law, striking a balance between interest groups and ensuring unimpeded commercial development.

The principle by which differential treatment is found to have met a substantive equality standard has, by the end of the majority report, degenerated from a test which protects Indigenous people against invidious treatment but recognises their distinct characteristics, to one which justifies invidious treatment whose purpose can, nevertheless, be legitimated as politically reasonable. The result is that, on the reasoning of the majority report, substantive equality provides a lower standard than formal equality which would not permit the discriminatory differentiation of Indigenous and non-Indigenous title holders.

This result, that substantive equality permits invidious differentiation on the basis of race, is inconsistent with a human rights approach. The hallmark of substantive equality is that it moves beyond the reductionist approach of applying a single rule against differential treatment to a contextual approach that recognises the historical and social determinants of discrimination. It aims to deal with the substance of discrimination, not just its form. It should not be used as a tool to increase the leeway that governments have in meeting their human rights obligation to ensure equality on the basis of race.

The dialogue with the CERD Committee, March 2000

Arguments very similar to those put by the government to the PJC in relation to native title were also put to the CERD Committee when Australia's periodic report was considered in Geneva on 21 and 22 March 2000. (39) The reception of these arguments by the CERD Committee was quite different to that analysed above in the majority report of the PJC. Clearly the CERD Committee was dissatisfied with the government's response to the CERD Committee's concerns as expressed in Decision 2(54) and to its recommendation that the government renew negotiations with Indigenous people in order to rectify the situation. The CERD Committee's concerns are twofold. First the amended NTA fails to meet the standard of equality required under the Convention. Second, the requirement under Article 5(c) of the Convention, emphasised in Decision 2(54), that Indigenous people give their informed consent to decisions that affect them, was disputed and ignored by the Australian government in relation to the enactment of the amended NTA.

The standard of equality under ICERD

In its Concluding Observations (40) the CERD Committee reiterated the finding that the amended NTA is discriminatory:

The Committee notes that, after the renewed examination in August 1999 of the provisions of the Native Title Act as amended in 1998, the devolution of power to legislate over the 'future acts' regime has resulted in the drafting of state and territory legislation to establish detained 'future acts' regimes which contain provisions reducing further the protection of the rights of native title claimants that is available under Commonwealth legislation. Noting that the Commonwealth Senate rejected on 31 August 1999 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.

The dialogue between the government and the Committee about the international standard of equality under ICERD was led by Country Rapporteur, Ms Gay McDougall. (41)

First of all, is it the view of the state party that the Convention establishes a legal duty to ensure formal equality with respect to the rights of historically disadvantaged racial and ethnic groups that still suffer from those inequalities, or is it substantive equality that is the obligation, and what are your definitions and where do you place special measures within that framework? (42)

The Australian delegation answered this question about their understanding of the standard of equality established at international law in the following terms:

Australia regards its obligations under the Convention as requiring equality between racial groups. This equality can be achieved by formal equality and special measures, where appropriate, or by substantive equality which recognizes that differential treatment is not necessarily discriminatory if it is legitimate, recognizing legitimate difference or distinct rights. (43)

The Country-Rapporteur responded:

I'm also very pleased to hear your delegation confirm that it is the position of the state party that the Convention establishes an obligation to ensure substantive equality, not mere formal equality, in situations like those that prevail in Australia today. (44)

The delegation responded further to this as follows:

Ms McDougall. made the point. that Australia had confirmed that substantive equality is required. I just wanted to make a little comment about that, and the issue. about whether Australia regarded formal equality as sufficient for the purposes of the Convention. I think the Australian Government does not argue that the Convention only requires formal equality, and this point was certainly made to the Committee members when the Australian delegation appeared in March last year. (45) I suppose that the way the Australian Government would see its obligations under the Convention is that the equality required by the Convention can be achieved in a number of ways - that equality is equality between racial groups - and those ways include by formal equality and special measures where appropriate, and by substantive equality which recognises differential treatment, that differential treatment is not necessarily discriminatory. (46)

The government has clearly sought to keep its options open on whether its treatment of Indigenous people has met its obligations under the Convention. It contends the Convention can be met by a combination of measures that provide either formal equality, substantive equality or, in a category of its own, the adoption of special measures. It argues the arbiter of what particular standards should be aimed for in any particular situation is the Parliament.

A similar position was expressed by the government to the Human Rights Committee (HRC), when Australia's periodic report under the ICCPR was considered in July 2000. Before the HRC, the government delegation stated:

Concerning Article 26 dealing with equality before the law and the prohibition of discrimination, I would note first that international law admits of both a formal and a substantive standard for assessing equality. Traditionally, racial equality was conceived of in terms of formal equality and, in that respect, the spirit of equality would lie in sameness and identical treatment, however, international law recognises that in some circumstances, positive discrimination towards certain racial groups may be necessary. This would be the case where in instances of underlying disadvantage, temporary affirmative action or special measures are allowed in order to hasten equal enjoyment of rights for all racial groups.

Since that time, the interpretation of the concept of equality has broadened to include substantive equality in that Governments may treat like things alike and different things differently. However, this alternative way of defining equality does not preclude the one originally conceived of in international law. The two approaches to the issue of equality coexist in international law. (47)

The flaw in this argument, that presents equality as a range of options from which a government may choose to dispense its treatment, is demonstrated by applying it to the obligation to recognise and protect native title. As indicated, the recognition of native title is a recognition of the distinct culture of Indigenous people. It is a title to land that only Indigenous people can enjoy. A formal equality approach, treating Indigenous people exactly the same as non-Indigenous people, would result either in the discriminatory non-recognition of native title or inadequate protection. The High Court made it clear in Mabo that the failure to recognise this unique relationship to land on the basis that it does not equate to non-Indigenous property concepts, is discriminatory.

The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. (48)

The obligation to recognise an Indigenous relationship to land is an obligation to recognise and give equal respect to cultural difference. There is no formal equality option. Formal equality is a failure to recognise difference. Such a failure is discriminatory.

Once it is accepted that the recognition of native title relies on a substantive equality approach it follows that the level of protection required to ensure that native title holders are given the same security in the enjoyment of their title as non-Indigenous title holders cannot be met by formal equality. The measures aimed at providing this protection must be appropriate to the unique characteristics of the title. A formal equality approach to protection, that native title holders' rights are protected by adopting the exact same measures used to protect non-Indigenous title holders, would not be adequate to ensure equal enjoyment of the right and would be contrary to Australia's international obligations under ICERD.

The requirement of effective participation

While the CERD Committee was concerned to ensure that Australia met the international standard of equality, it was also concerned to ensure that Indigenous people are equal partners in negotiating the amendments. The requirement of effective participation is particularly important where certain amendments have the effect of winding back previously enjoyed rights. The CERD Committee confirmed the government's obligation to ensure that Indigenous people give their informed consent to the NTA prior to its enactment.

The government's position in relation to the principle of effective participation is that Parliament is the appropriate body to decide whether particular legislation is discriminatory of or for the benefit of Indigenous people. (49) In reaching its decision in relation to native title legislation the government argues that its obligation is not to negotiate an outcome with Indigenous people but to balance the interests of all the stakeholders. This can be achieved through consultation.

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. (50)

In 1993 the CERD 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 CERD Committee that this consent had been withdrawn. The Committee reiterated this view in March 2000:

When this Committee first looked at the Native Title Act - and I admit I was not on the Committee then - it was not my impression from reading the record that the Committee based its decision on an acceptance of 200 years of white settlement as a sort of fait accompli that was then the basis for moving forward. I don't think so. My sense was that the Committee based its decision to accept the discriminatory aspects of the Native Title Act because there was sufficient evidence that it was the product of genuine negotiations with the indigenous populations, and it was on that basis, on the basis that it was the product of genuine negotiations. Not that it wasn't discriminatory, and not from a sort of arbitrary decision by the Committee that 200 years must be accepted. I come back to this because I think that this question of negotiating with the indigenous populations is central and it perhaps is not seen so by the delegation.

I note that you have challenged our position that in situations regarding land rights of indigenous peoples, if there is a deviation from the rights established under the Convention, it must be with the informed consent of the indigenous people. That is what's said in our General Recommendation. I must admit to not being able to see that as such an extraordinary standard. You know, if someone wants to purchase or divest me of land that I own, they must have my informed consent. (51) (emphasis added)

The CERD Committee's commitment to the principle of effective participation is encapsulated in General Recommendation XXIII, which calls on governments to:

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. (52)

In finding that Australia had not allowed effective participation by Indigenous people in the formulation of the amendments to the NTA, the CERD 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.

The dialogue with the Human Rights Committee, July 2000

On 20 and 21 July 2000 the UN Human Rights Committee (HRC) met for its 69 th session to consider Australia's third and fourth periodic reports regarding Australia's compliance with the provisions of the International Covenant on Civil

and Political Rights (ICCPR) (53) and "the measures [it] has adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights." (54) The two reports submitted by Australia covered the period 1986 to 1996. (55) Contemporary issues were also reported upon and considered by the HRC.

The HRC is constituted in accordance with Article 28 of the Covenant. It is made up of eighteen members (56) who are "nationals of the State Parties to the present Covenant who shall be persons of high moral character and recognised competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.The members of the Committee shall be elected and shall serve in their personal capacity." (57)

The purpose of the examination is to allow the HRC and the representatives of the State Party to enter into a constructive dialogue over the obligations which the State has voluntarily agreed to meet, and their performance of those obligations over the reporting period.

The procedure of studying the State reports is principally oriented along the principle of constructive dialogue with the State Party. The Committee has consistently stressed that it is not a court that is required to decide on violations of the Covenant in the reporting period and before which the State concerned must defend itself. On the contrary, it has stated that its function is to support the States Parties in promoting and protecting Covenant rights and thus contribute to mutual understanding and peaceful friendly relations among States. (58)

The HRC's observations and recommendations in relation to native title

The HRC's concerns in relation to native title and the amendments to the NTA were based on Australia's obligations under Articles 1 and 27 of the Covenant. Article 1 protects the right of self-determination, and provides;

1. All people 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 without prejudice to any obligations arising out of international economic co-operation, based on the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The State Parties to the present Covenant, including those having responsibility for the administration of non-Self-Governing and Trust Territories, shall promote the realization of the right to self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

The HRC made it clear that self-determination is a right to which Indigenous people are entitled. Its observation on Australia with respect to this right was;

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. (59)

In relation to Article 1 the Committee recommended that:

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. (60)

The Committee's concerns in relation to Article 1 of the Covenant add weight to similar findings by the CERD Committee discussed above, that Indigenous people have been denied effective participation in decisions which affect them, and in particular in respect of their control over traditional lands and resources. (61)

Also of concern to the Human Rights Committee was Australia's failure to appreciate, with respect to the rights of Indigenous people, its obligations under Article 27 of the Covenant. Article 27 provides;

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Committee observed that;

... despite positive developments towards recognising 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 limits 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. (62)

On the basis of this observation the Committee made the following recommendation.

... that the State party take further steps in order to secure the rights of its indigenous population under Article 27 of the Covenant. The high level of the exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns. (63)

This recommendation is a clear indication of the Committee's concerns in relation to the amended NTA and Australia's failure to meet its human rights obligations under Articles 1 and 27 of ICCPR.

The dialogue between the Human Rights Committee and the Australian government

The focus of the dialogue on native title between the HRC members and the Australian government delegation was the government's obligations under Article 27. Rather than assume a responsibility to address the vulnerability, both historically and legally, of Indigenous title to land, the government perceives its obligations under the Covenant as conditional upon these limitations.

Extinguishment refers to the situation when the law can no longer recognise Native Title as existing over a particular piece of land. This recognises the historical facts that the land was settled and that portions of it have been handed over for residential purposes, for farms, for cities, for roads, commercial purposes, public works, and so forth.

Recognising the vulnerability of Native Title to extinguishment, the Government thought it necessary to enact legislation that would ensure the protection of native title and also its interaction into Australian law and land management.

The fundamental goals of the Native Title Act are: to protect and recognise Native Title, to make certain the extent to which Governments can act in relation to Native Title rights and interests, and to provide a balance between the rights and interests of all Australians. These goals have not been altered by the need to reflect recent developments in the law. (64)

The 'developments in the law' referred to relate to the extinguishment of native title. The government is effectively arguing that it has no obligation to rectify the historical and legal construction of native title that has made it vulnerable to extinguishment but is entitled to 'reflect' these 'developments' in the amendments to the NTA. The extinguishment of native title through the confirmation provisions were sought to be justified in this way. The common law was posited as a benchmark against which the confirmation provisions can be evaluated.

The Government believes that these confirmation provisions have caused no divestment of Native Title rights. They simply represent a recognition of the historical position that Native Title had been extinguished by grants of freehold and some forms of leasehold in Australia over the past 200 years on approximately 20 percent of the Australian land mass.

Leaving the status of such tenures to the Courts to confirm would have required extensive litigation, wasted resources of both indigenous and non-indigenous parties, and produced unsuccessful outcomes for all. The Government did not consider such an objective to be legitimate. (65)

The justification for the winding back of the right to negotiate provisions also relied on accepting the vulnerable construction given to native title by the courts.

The object of these amendments therefore was to ensure that the right available more closely reflected the nature of native title rights that were likely to exist on pastoral leases and similar tenures. Furthermore, practice had shown that the right to negotiate procedures impede resource and commercial development without giving indigenous peoples substantial benefits in return. (66)

In response to this presentation, Mr Shinan of the Committee perceived a difficulty with this reliance on the legal construction of native title. From the point of view of Article 27 of the covenant, the obligation of State parties is to secure the sustainability of indigenous economic and traditional life.

I see a certain problem here which is that maybe the domestic discussion which concentrates around the legal notion of native title is somewhat misleading in order to approach the issues of rights under Article 27 because Article 27 speaks about the rights to enjoy one's culture in community with other members of the group.

Concentrating on native title may lead to decades of litigation in order to clarify the fundamental legal issues, which are at the background of course of use of land and resources, and which are at the background also of the possibility of Aboriginal peoples in Australia to enjoy their culture in the future. But I would like to have more information about the current situation and what steps are being taken to secure the sustainability, the continuance of the way of life of Aboriginal communities today - while the long term issue of native title is subject to legislation and re-legislation, which continue and may continue for decades.

For instance the committee has on other occasions identified that, in particular, in relation to indigenous peoples, hunting and fishing and other traditional forms of economic life do fall under the notion of culture and require special protection. I think that concentrating on the native title issues in the report has resulted in insufficient information as to steps taken to secure the sustainability of forms of indigenous economic life in relation to competing use of land and resources in relation to forms of modernisation. (67)

The government representative did not accept the Committee member's view that Article 27 gives rise to a positive obligation on States to protect the right of minorities to enjoy their culture.

The first question which was asked by Mr Shinan and some other Committee members also, relates to the protection of indigenous cultures and way of life. In particular, it was asked what Australia is doing in response to Article 27 to ensure that these cultures and ways of life were preserved.

Just at the outset, I would like to say that Article 27 of the Covenant requires that States not deny ethnic, religious, or linguistic minorities the right to enjoy their own culture protect their own religion, or use their own language. The article does not, however, require States to enact legislation to guarantee these rights. As indicated by my colleague, Mr Campbell, States may implement these obligations under the Covenant by legislative or other measures. (68)

The conflict between the government and the Committee deepened in relation to their respective understandings of a States obligations under Article 27 of the Covenant and its relationship to the right to equality as encapsulated in Article 26.

The government's position, that a State will meet its international obligations in relation to equality either by a substantive or formal equality approach is at odds with the Committee's approach. The government's position was stated as follows;

Concerning Article 26 dealing with equality before the law and the prohibition of discrimination, I would note first that international law admits of both a formal and substantive standard for assessing equality. Traditionally, racial equality was conceived of in terms of equality and, in that respect, the spirit of equality would lie in sameness and identical treatment, however, international law recognises that in some circumstances, positive discrimination towards certain racial groups may be necessary. This would be the case where in instances of underlying disadvantage, temporary affirmative action or special measures are allowed in order to hasten equal enjoyment of rights for all racial groups.

Since that time, the interpretation of the concept of equality has broadened to include substantive equality in that governments may treat like things alike and different things differently. However, this alternative way of defining equality does not preclude the one originally conceived of in international law. The two approaches to the issue of equality coexist in international law. (69)

As discussed above the problem with this approach of seeing formal and substantive equality as complementary standards that coexist at international law, is that, at times, a substantive approach to equality does preclude a formal equality approach. This is discussed above in relation to native title. The potential inconsistency between these two approaches is made clear by an understanding of the effect of Article 27 on a State's obligations in relation to equality. This is explained by the Committee as follows.

Now, Article 27 is kind of a unique article among the whole provisions of the Covenant. I don't have to explain to you that the Universal Declaration adopted in 1948 was based on an assumption that if you do not discriminate among individuals, and if you set common standard of human rights, then everybody should be as happy as anyone else.

This assimilation or integration assumption has come to be proven not 100 percent justified. As a result, perhaps our Covenant has come to have Article 27 which is the right of minorities. (70)

The right of minorities to enjoy their culture under Article 27 has the effect that a State cannot meet its obligation under ICCPR through a formal equality approach. To do so would deny a minority group enjoyment of its cultural identity.

The dialogue between the Committee members and the government representatives in relation to Australia's obligations under the Convention has clarified the issues on which Australia and the Committee agree and those on which they differ. Similar issues were considered by the CERD Committee in March 2000. Subsequently, the Committee on Economic Social and Cultural Rights has considered Australia under its Convention. (71) Before all of these Committees, the meaning of equality at international law and its application to Indigenous people have been central issues. The weight of international opinion recognises the impact that past discrimination has had upon Indigenous people throughout the world and the urgency with which their valuable cultures need to be protected. Australia's engagement with this body of opinion is necessary to develop domestic policies and legislation which are in keeping with an international perspective.

Maintaining the dialogue on human rights

Within a week of the CERD Committee releasing its Concluding Observations in March 2000, the government announced a review of Australia's participation in the treaty committee system. A press release issued by the Minister for Foreign Affairs at the time indicated the depth of resentment felt by the government in relation to the CERD remarks.

In this context, the Government was appalled at the blatantly political and partisan approach taken by the UN's Committee on the Elimination of Racial Discrimination (CERD) when it examined Australia's periodic reports in Geneva last week. The Committee's response was disappointing in the extreme. It largely ignored the significant progress made in Australia across the full spectrum of indigenous issues. The Committee's observations are little more than a polemical attack on the Government's Indigenous policies. They are based on an uncritical acceptance of the claims of domestic political lobbies and take little account of the considered reports submitted by the Government (72) .

there are serious systemic problems in this reporting process and the resources needed for them to play their role effectively are not allocated to the treaty bodies. As a result, the outcomes of the system are not always fair and accurate assessments of state's performances. This wasthe case for Australia recently in relation to our implementation of the Convention Against Racial Discrimination. (73)

The decision to conduct a review was based on the following concerns;

the suggestion that the committees were running political agendas and were straying beyond their mandate under the Convention. (74)

Australia requested the following comments be included in the annual report of the Committee to the United Nations General Assembly:

The Australian Government has carefully considered the Committee's concluding observations on Australia's tenth, eleventh and twelfth periodic reports issued on 24 March 2000. While noting some positive commentary, the overall thrust is unduly negative. The Australian Government rejects these comments. It approached the CERD meeting in good faith and sent a high-level delegation, led by the Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, the Hon. Phillip Ruddock MP. Australia provided extensive written and oral information in order to engage constructively with the Committee.

The Australian Government is very disappointed that the Committee's concluding observations ignored the progress Australia has made in addressing indigenous issues, gave undue weight to NGO submissions, and strayed from its legitimate mandate. The Australian Government is also deeply concerned about the lack of consideration the Committee accorded to its views, and to its outstanding record of commitment to international human rights obligations.

Following the issue of the Committee's concluding observations, the Government in March 2000 initiated a review of its engagement with United Nations treaty bodies, which will involve, inter alia, consideration of the working procedures of CERD. The Government will announce the conclusions of the review in due course. (75)

My concerns about the government's response to the Committee's concluding observations are set out in detail in the Social Justice Report at pages 79-83. The Human Rights and Equal Opportunity Commission has also expressed its concern to the Attorney-General about the government's response to the CERD decision.

My perspective was that of a witness and participant in the dialogue that occurred on three separate occasions throughout 2000 before three UN human rights Committees: the CERD Committee, the Human Rights Committee, and the Committee on Economic Social and Cultural Rights.

What I witnessed on those occasions was not a process that sought to judge, let alone embarrass Australia on the international stage. Rather I observed and participated in a constructive dialogue in which government representatives, non-government organisations and national institutions debated the human rights significance of a range of important issues and policies including mandatory sentencing, native title, Aboriginal heritage, the stolen generations, Aboriginal poverty and disadvantage.

While this debate does occur on a domestic level, a range of other interests, especially economic interests, often dilutes the human rights significance of these issues. It is only by reference to our obligations under human rights treaties that the impact of particular policies on the human rights of Indigenous and non-Indigenous people can be separated and brought into sharp focus. Under this light it can be seen that human rights principles are often compromised for more expedient ends.

The right of an accused person to be sentenced proportionally to the crime committed is a principle that a human rights committee does not easily overturn in order to assuage a popular demand for tough criminal sanctions. Such a committee cannot be easily persuaded that the right of Indigenous titleholders to equal protection of their title by the law should be compromised in order to achieve certainty for other stakeholders. For example, the interests of water skiers would never outweigh the interests of traditional owners to protect their sacred sites on a lake or lagoon - as has been the case at Boobera Lagoon in the far north of New South Wales. In fact the balance of interests is not the concern of a human rights dialogue. Rather it is whether there is sufficient value placed upon fundamental and universal human rights despite the economic or political expediencies.

The CERD Committee made this point to the government in relation to native title issues in 1999. In that context, the government had argued that it had struck an appropriate balance between the interests of miners, pastoralists, and Indigenous people in the native title amendments. The Committee responded that the balance is not between domestic political interests but between the enjoyment of rights by different racial groups in society. The native title amendments did not provide an appropriate balance in this regard. (76)

Australia has voluntarily applied the standards set by human rights treaties to the policies and legislation that govern our domestic arena. Our obligations under these treaties represent an undertaking on behalf of the government to its citizens that the tools of government will be exercised fairly and in accordance with universal human rights principles.

All parties to human rights treaties are brought to account by the UN committee system. What is important in this system is that a dialogue is established between those who draft and apply policies and legislation and those whose human rights are affected by such policies and legislation. The involvement of NGOs in the Committee's consideration of the periodic reports of member States is instrumental in ensuring that those whose human rights are affected by domestic policies and legislation are involved in the dialogue. Mr Henkin, a member of the Human Rights Committee, explained the Committee's role to Australia when it was before it in July, as follows:

Most of us have seen the reports in the newspapers that the Australian Cabinet has had some unhappiness with the work of treaty bodies. They didn't make any exception for this particular treaty body, although I don't suppose they should have too much trouble with this treaty body since they haven't appeared before us as now in some 14 years.

I would like to suggest that perhaps the Government of Australia, like the Governments of other countries, ought to see this Committee as it sees itself. We see our work as an important contribution to your compliance with the obligations which you voluntarily assumed; in fact, eagerly assumed. And that is true not only about the protocol, but also about the Covenant itself.

So we don't see ourselves really, despite the tone of some of our questions, as sitting in judgment but as helping State Parties carry out the obligations which you voluntarily assumed, and wish to assume. Of course, that requires cooperation by the States Parties. It does not help to read, therefore, questions about the work of the treaty bodies, and even on communications it does not help to see Governments - and I don't refer only to Australia - somehow resist the judgments or the final views of this Committee.

Therefore, I can only close by saying that we cannot help Governments comply with the obligations which you voluntarily assumed unless there is cooperation between your Government and the Committees, both in regard to the reports which you filed and we hope you will file more frequently, and the response to our views. (77)

The dialogue around reconciliation

The international and domestic dialogue discussed thus far has put Indigenous people as its object. In the process of reconciliation however Indigenous people should be equal partners in an extensive dialogue that has taken place and will continue to occur over many years. The overriding purpose of this process is to resolve the many conflicts between Indigenous and non-Indigenous people in colonial and post colonial Australia so that a more equitable relationship based on mutual respect can develop in the future. The Council for Aboriginal Reconciliation (CAR) describes the process in this way.

Reconciliation between Australia's Indigenous peoples and all other Australians is about building bridges. It is about respecting our differences. It is about giving everybody a fair go. It is about building on the strengths of common ground. (78)

CAR also recognises that an important step towards reconciliation is an acknowledgement and understanding of the past and its impact on the present relationship between Indigenous and non-Indigenous people today.

Our nation must have the courage to own the truth, to heal the wounds of its past so that we can move on together at peace with ourselves. (79)

In this section I will discuss the effect of the Mabo decision of the High Court in 1992 on the way in which important conflicts between Indigenous and non-Indigenous people in the colonial and post-colonial period have been perceived and thus the way in which they might be resolved. I will also discuss how the court's inability to resolve the fundamental contradictions in our nation's history has affected judicial and legislative developments in native title.

'Our nation must have the courage to own the truth' (80)

The recognition of native title came from acknowledgement of important truths about our past and seeking to reconcile these truths with contemporary notions of justice. Mabo brought to the fore a fundamental conflict arising at the time of the establishment of Australia as a colony and remaining unresolved today. That is the conflict between the assertion on the one hand that the settlement of Australia gave rise to exclusive territorial jurisdiction by the colonial power and, on the other hand, the denial that this claim to exclusive jurisdiction has ever been conceded to or surrendered by Indigenous people who coexist on the same territory. CAR also recognizes in the Declaration Towards Reconciliation the significance of this absence of consent to the establishment of the colony.

We recognize this land and its waters were settled as colonies without treaty or consent. (81)

Indigenous people in Australia continue to assert that their deep spiritual economic and social connection to the land is inconsistent with that same land being under the sole political control of non-Indigenous people. James Tully describes the contradiction at the heart of the establishment of colonial power as follows:

The problematic, unresolved contradiction and constant provocation at the foundation of internal colonization, therefore, is that the dominant society coexists on and exercises exclusive jurisdiction over the territories and jurisdiction that the indigenous peoples refuse to surrender. (82)

Because of the link between the recognition of Indigenous land rights and the foundations of Australia as a nation both within and beyond the colonial era, the Mabo decision brings to the fore this fundamental contradiction.

Enlarged notion of terra nullius

Mabo is not only a case about whether the common law recognises Indigenous people's relationship to their land. It is also a case about the legal foundations of Australia as a nation. Indeed its significance lies in the link between the domestic law on Indigenous land rights and the way in which sovereignty was acquired by the colonial power. In order to recognise native title, the High Court had to review the juridical tools used to justify the acquisition of sovereignty over the colony of New South Wales by Britain over two hundred years ago. This link between the recognition of native title and the overturning of terra nullius is fundamental to the way in which native title has developed through the common law. It is also fundamental to the resolution of the conflict referred to above between Indigenous and non-Indigenous people at the establishment of the colony.

According to Blackstone, the juridical tools that were available under international law to colonial powers seeking to acquire sovereignty over foreign lands in the 18 th Century were threefold; conquest or treaty (cession) where the land was occupied; or occupation where the land was uninhabited.

Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. (83)

The juridical tools used to justify the acquisition of sovereignty were important because the way in which sovereignty was acquired determined the laws that applied within the colony:

Although the question of whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. Accordingly, the municipal courts must determine the body of law which is in force in the new territory. By the common law, the law in force in a newly acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown. (84)

In summary, if a territory is acquired through occupation of uninhabited land then, so long as it is applicable to the colony, English law is in force, while in the case of acquisition through treaty or conquest, the 'ancient' laws remain until they are changed.

The armory of juridical tools used to justify the colonial ambition was supplemented by a theory that enabled already inhabited land to be annexed through occupation alone. No treaty was required. The 'enlarged notion of terra nullius' was applied to 'backward peoples' where 'the indigenous inhabitants were not organized in a society that was united permanently for political action'. (85)

The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a 'desert uninhabited' country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called 'settled colonies'. Ex hypothesi, the indigenous people of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization. (86)

To these territories, 'without settled inhabitants or settled law', (87) the laws of England applied without the consent of the Indigenous inhabitants.

Overturning terra nullius

There are many reasons why the notion of terra nullius no longer holds legitimacy as a basis for the establishment of a colony already inhabited by Indigenous people. The High Court canvassed some of these. The International Court of Justice has also discarded terra nullius as a legitimate means of acquiring sovereignty. (88) Recent reports from the UN have provided further analysis which leads to a rejection of terra nullius as a legitimate basis for the acquisition of territory. (89)

In Mabo the High Court rejected terra nullius as a basis for colonisation in Australia on three grounds;

• Terra nullius no longer accords with 'present knowledge and appreciation of the facts' (90) with regard to Aboriginal society. The proposition that Aboriginal people were 'without laws, without sovereign and primitive in their social organisation' (91) can not be sustained in the light of present knowledge about the complex and elaborate system by which Indigenous society was governed at the time of colonisation.

• Terra nullius no longer accords with the values of contemporary society. In particular terra nullius is a discriminatory denigration of Indigenous society which was considered 'so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.' (92) The notion of equality relied on by the Court to reject terra nullius was one that recognised and gave equal respect to the distinctive characteristics of Indigenous society. This aspect of the High Court's decision is discussed in Chapter 2 of this report at pp65-67.

• Terra nullius is out of step with modern international law, particularly in relation to the human rights of equality and self-determination. This aspect of the decision is also discussed further at Chapter 2 pages 70-73.

Finally the Court was influenced by the decision of the International Court of Justice in its Advisory Opinion of Western Sahara (1975) ICJR that rejected terra nullius as the basis for Spanish sovereignty in Western Sahara.

Two United Nations' reports that support and expand upon the reasoning of the High Court in rejecting terra nullius have recently been tabled at the United Nations. The first report, Study on treaties, agreements and other constructive arrangements between States and indigenous populations , (93) prepared by the Special Rapporteur, Miguel Alfonso Martinez, came out of a recommendation of the monumental Study of the Problem of Discrimination against Indigenous Populations , (94) produced by Martinez Cobo in 1986. The second report that critically appraises terra nullius as a discriminatory instrument of colonization is the final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes entitled, Indigenous peoples and their relationship to land . (95) Both these reports have been produced as a result of resolutions of the Sub-Commission on the Promotion and Protection of Human Rights. (96)

While reinforcing the reasoning of the High Court, the UN reports add a further basis on which to discard terra nullius, namely, that terra nullius removed Indigenous people from the sphere of international law and into the sphere of the domestic law of the colonial power.

Martinez' rejection of terra nullius stems from an overriding objection to the ambitions of colonialism generally. He sums up his objections as follows:

Despite the surfeit of pious excuses that has been found to justify ethically the launching of this overseas colonial enterprise, and the pseudo-juridical (sometimes even openly anti-juridical) reasoning which has attempted to defend it 'legally' there is irrefutable evidence that its clearly defined goals had nothing either 'humanitarian' or 'civilising' about them. Its first raison d'etre was to guarantee a permanent presence of the overseas power, either settler population or mere trading posts, in territories inhabited by other people. Secondly, the overseas power sought to acquire the rights to exploit the natural resources existing there and to secure these new markets for the import and export needs. Thirdly, it coveted those new strongholds to strengthen its position in the struggle with other European powers. Finally, it sought to safeguard what had been acquired by imposing its political, social and economic institutions and modalities on the peoples inhabiting the lands.

Those goals were to be accomplished at any cost, even - should it be necessary and possible - that of the destruction of often highly advanced cultures, socio-political institutions and traditional economic models developed over centuries by the indigenous peoples. (97)

International law legitimised the colonial ambition of annexing land in the new world. Erica-Irene Daes notes

The doctrines of dispossession which emerged in the subsequent development of modern international law, particularly 'terra nullius' and 'discovery', have had well known adverse effects on indigenous peoples. The doctrine of terra nullius as it is applied to indigenous peoples holds that indigenous lands are legally unoccupied until the arrival of a colonial presence, and can therefore become the property of the colonizing power through effective occupation. Strictly speaking, in the seventeenth, eighteenth, and nineteenth centuries, the doctrine of 'discovery' gave to a discovering State of lands previously unknown to it, an inchoate title that could be perfected through effective occupation within a reasonable time. The doctrine, as it has come to be applied by States with little or no support in international law, gives to the 'discovering' colonial power free title to indigenous land subject only to indigenous use and occupancy, sometimes referred to as aboriginal title. Only recently has the international community begun to understand that such doctrines are illegitimate and racist. (98)

One of the intended effects of colonial domination was to deny Indigenous people their status as subjects of international law. Referring to a second phase of the colonisation process Martinez reports;

Thus began the process that the Special Rapporteur has preferred to call (without any claim to originality) the 'domestication' of the 'indigenous question', that is to say, the process by which the entire problematique was removed from the sphere of international law and placed squarely under the exclusive competence of the internal jurisdiction of the non-indigenous States. In particular, although not exclusively, this applied to everything related to juridical documents already agreed to (or negotiated later) by the original colonizer States and/or their successors and indigenous peoples. (99)

The 'domestication of the Indigenous question' is certainly inherent in the notion of terra nullius. Whereas the premise of a treaty was that the Indigenous people already had sovereignty in the territory sought to be acquired, terra nullius contained no such assumption. As indicated by the High Court, terra nullius was a denial of the sovereignty of Indigenous people. (100) Following from this, Indigenous people colonised through terra nullius were, from the outset, denied any status as subjects of international law.

Filling the Gap

The High Court's decision to overturn terra nullius brought Australia in line with an international rejection of the discriminatory methods by which colonialism performed its task of annexing other people's territory. Yet many questions remain to be answered. What will fill the gap, at the foundations of our nation, created by the overturning of terra nullius? What has replaced terra nullius as a legitimate explanation for the establishment of what is now the Australian nation? What impact does the rejection of terra nullius have on the relationship between Indigenous and non-Indigenous people? Does this rejection offer new solutions to the fundamental conflict between Indigenous and non-Indigenous people stated above as the assertion of exclusive jurisdiction by non-Indigenous people over traditional lands that have never been surrendered?

Having rejected the distinction between inhabited territories that were considered terra nullius and those that were not considered terra nullius based on the customs of their Indigenous inhabitants, the common law was liberated to recognise and give protection to the relationship that Indigenous people continue to have with their land through the concept of native title.

It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too. Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition. (101)

The rejection of terra nullius was a rejection of the assertion that Indigenous people were not socially or politically constituted. The promise of native title was that terra nullius would be replaced, not by another value judgment by the non-Indigenous legal system about what Aboriginal society was thought to be, but rather by the laws acknowledged and the customs observed by the Indigenous people reclaiming their land.

Native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty. It is a problem that did not arise in the case of a settled colony so long as the fictions were maintained that customary rights could not be reconciled 'with the institutions or the legal ideas of civilized society' that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown. (102)

This shift in thinking was important because it heralded a new approach to redressing historical dispossession based, not on the belated generosity of the State that had benefited from it, but rather as a matter of right, based on the distinct identity of Indigenous people, their laws and customs. Yet the promise that, with the overturning of terra nullius the common law might form the basis of a new relationship between Indigenous and non-Indigenous people has not been fulfilled. The fundamental conflict about the assertion of exclusive jurisdiction by non-Indigenous people over traditional Aboriginal lands is not solved by the recognition of native title.

The State as supreme sovereign power

The direction in which the concept of native title has developed within the common law is shaped by the distinction that the court makes between terra nullius as a means of acquiring sovereignty and the fact of sovereignty itself. The review of terra nullius was not directed towards the fact of sovereignty, but only to the means by which sovereignty was acquired. The supreme power of the sovereign state is an uncontested and uncontestable premise of the court's decision to recognise native title. Relying on the principle that '[T]he acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged controlled or interfered with by the Courts of that state' (103) Justice Brennan went on to state in Mabo:

Although the question whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. Accordingly, the municipal courts, must determine the body of law which is in force in the new territory. By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown. (104)

While sovereignty is uncontestable at law, as a result of the overturning of terra nullius, it is also without justification or legitimacy. Its assertion is simply an act of power.

The assertion in Mabo of sovereign power has determined the development of native title in three significant ways. First the recognition of native title at common law fails to identify Indigenous people as subjects of international law. The determination of Indigenous rights to land takes place squarely within the frame of domestic law. Second it results in an acceptance of and a basis for the state's power to extinguish native title. Third, it has resulted in the development of a construction of native title in which the characteristics of Indigenous sovereignty have been erased. Reference to native title as a bundle of rights rather than a system of laws can be seen as exemplifying this construction.

Indigenous people as subjects of domestic, not international law

In overturning terra nullius the High Court has not overturned the effect terra nullius had of denying Indigenous people their status as subjects of international law. Indeed it has reinforced and entrenched this denial. Even though terra nullius is an international law concept which had to be overturned in order to recognize Indigenous people's relationship to land, native title is a common law concept belonging squarely within municipal or domestic law. What the court has recognised through native title is the proprietary title of Indigenous people to their land not the jurisdiction of Indigenous people over their territory.

There is a distinction between the Crown's title to a colony and the Crown's ownership of land in the colony.The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law. The distinction between the Crown's title to territory and the Crown's ownership of land within a territory is made as well by the common law as by international law..The general rule of the common law was that ownership could not be acquired by occupying land that was already occupied by another. (105)

The absence, at the establishment of colonial power in Australia, of any recognition of the pre-existing sovereignty of Indigenous people over the same territory is not overcome by a concept which belongs solely to the common law of the colonial power.

Extinguishment

The power of the state to extinguish native title and the continuing exercise of this sovereign power underlies the development of native title at common law. First, in the recognition stage of a native title determination, the court will only recognise claims where there has been an ongoing connection between the claimants and the land.

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an Indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown. (106)

Thus, legislative or executive acts, or other unauthorised (including illegal) acts that dispossessed Aboriginal people of their land and conferred a concomitant benefit to non-Indigenous people using and exploiting the same lands, will be confirmed in the native title process.

Second, even if the claimants' relationship to their land withstands this historical dispossession, the court will, as a matter of law, determine whether the title has in any case been extinguished by the creation of non-Indigenous interests (whether current or expired) over the same land. Thus the creation of a mining lease or a national park on the same land may, as a matter of law, extinguish native title.

Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory. It follows that, on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power. (107)

The common law test for extinguishment is discussed at Chapter 2 of this report. The court's approach to the extinguishment of native title has not been finally determined by the court. In general there is agreement by the High Court judges that native title will be extinguished where the legislation evinces a clear and plain intention to do so. While the statutes which create non-Indigenous interests, such as mining leases or pastoral leases, do not expressly extinguish Indigenous interests in land, there being no recognition that Indigenous interests existed at that time, the courts are willing to infer such extinguishment where an inconsistency exists between the statute creating the new non-Indigenous interest and the exercise of the pre-existing Indigenous interest. What the High Court has not not not not not decided is whether, in some cases an inconsistency between the Indigenous interest and the non-Indigenous interest amounts to a suspension rather than an extinguishment of the Indigenous interest. In either case non-Indigenous interests will always prevail over the pre-existing Indigenous interests.

At Chapter 2 the discriminatory effect of recognising non-Indigenous interests over Indigenous interests so as to extinguish forever the Indigenous interest is discussed. Earlier in this chapter the criticism by international human rights committees of the extinguishment of Indigenous interests in land for the benefit of non-Indigenous people was discussed. Special Rapporteur Erica-Irene Daes also recognizes that the Courts have failed to accord appropriate protection to native title (or 'aboriginal title') compared with that accorded to non-Indigenous interests in land.

Where aboriginal title is recognized, indigenous peoples have at least some legal right that can be asserted in the domestic legal system. However, aboriginal title is often subject to the illegitimate assumption of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of non-Indigenous citizens, other individuals and corporations. This single fact probably accounts for the overwhelming majority of human rights problems affecting indigenous peoples.

In many of the countries that do recognize aboriginal title, it is more limited in its legal character and the rights that appertain to it, and more limited in the legal protection accorded to it, that other land titles. (108)

The common law's capacity to review acts of state which extinguish native title is limited, particularly where such an intention is expressly stated in the legislation. So long as the exercise of the state's power to extinguish Indigenous interests in land is constitutionally authorised then the court is powerless to contain it. Where the intention of the legislature is not expressly stated the court plays a greater role in interpreting the legislation so as to give effect to its purpose. Ambiguity in the legislation may be resolved consistently with international law standards. In general however, the court's influence over the question of extinguishment is limited.

Thus the development of the common law of native title is framed by the incontestability of the power of the sovereign state. Recognising native title has not established a relationship of equality between Indigenous and non-Indigenous people. The non-Indigenous state still maintains exclusive jurisdiction over traditional Aboriginal land. The decision of the state to extinguish native title is incontestable by a court despite its discriminatory character.

Bundle of Rights

In rejecting terra nullius the High Court rejected the discriminatory denigration of Indigenous people as having no social organization, laws or recognised sovereign. The promise of native title was that the traditional systems underlying Indigenous society could be recognized by the common law. Yet recent developments in the common law notion of native title indicate the reluctance of the court to recognise Indigenous laws and governance structures. The extent to which the common law recognises the system of laws on which Indigenous peoples' relationship to their land is built, will be determined by the High Court this year in the Miriuwung Gagerrong and Croker Island appeals. (109)

In Chapters 2 and 3 of this report I outline how the main issue before the court in these cases is whether native title is conceived as a bundle of individuated rights which entitle native title holders to carry out specified activities on their land or whether it is based on a more fundamental relationship between Indigenous people and their ancestral land originating from the traditional system of law and custom. It can be seen, in view of the above discussion, that the characterisation of native title as a bundle of rights, dissociated from the laws which give rise to these rights does not fill the gap created by the court's rejection of terra nullius. Indeed native title as a bundle of rights reinforces terra nullius's depiction of Indigenous people as being 'without laws, without a sovereign and primitive in their social organisation'. (110) It denies the generality and systematisation of rights which characterise all legal systems including traditional Indigenous laws. Constructing native title as atomised and particularised practices denies their origin in a system of laws and customs which underlie Indigenous culture and society.

A Legislative basis

The response of the international community over the last few years to the legislation which currently controls the recognition and protection of native title in Australia (111) makes it clear that this legislation provides an unacceptable basis for the relationship between Indigenous and non-Indigenous people. As noted before both the CERD Committee and the Human Rights Committee made it clear that the current native title legislation is a breach of Australia's human rights obligations to deal with Indigenous people equally, (112) to protect Indigenous culture (113) and to the right of Indigenous people to self-determination. (114) The extinguishment of Indigenous land in the amended NTA constitutes a breach of all three of these human rights obligations.

An important message to Australia from the UN committees was that where legislation is proposed which affects Indigenous people, it should only be enacted with the informed consent of the Indigenous people affected. This requirement arises out of Article 5 of ICERD and from the principle of self-determination under Article 1 of ICCPR. In fact the CERD Committee, meeting in March 1998 to consider the amended NTA under its urgent action procedure, contrasted the process by which the amendments were implemented without the consent of Indigenous people with the process by which the original NTA was implemented with Indigenous consent. It is this process of negotiation and consent that enables Aboriginal people to gain effective control over their ancestral lands.

The comparison made by the CERD Committee between the two approaches taken to legislating on native title also shows the inherent weakness of defining/ building the relationship between Indigenous and non-Indigenous people on legislation alone. That is, as a result of the sovereignty of parliament, legislation can always be amended or repealed by subsequent governments without the consent of Indigenous people.

• A human rights basis

A human rights basis

The overturning of terra nullius and the consequent absence of any legitimate basis for the establishment of non-Indigenous sovereignty over previously occupied territory can be addressed by ensuring that the establishment of a new relationship between Indigenous and non-Indigenous people is based on human rights principles.

The international law principle most relevant to providing the basis for negotiation between Indigenous and non-Indigenous people in relation to the control of traditional Indigenous land is that of self-determination. Article 1 of ICCPR and ICESCR provide;

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 realization of the right of self-determination, and shall respect that right, in conformity with the Charter of the United Nations.

There is little doubt based on the Concluding Observations of the Human Rights Committee and the Committee on Economic Social and Cultural Rights on Australia in July and August 2000 respectively (see: Appendices 3 and 4) that Indigenous people are entitled to enjoy the right of self-determination. Special Rapporteur Miguel Alfonso Martinez also has no doubt in this regard:

The Special Rapporteur also harbors no doubts concerning the much debated issue of the right to self-determination. Indigenous peoples, like all peoples on Earth, are entitled to that inalienable right. (115)

Both the Human Rights Committee and the Economic Social and Cultural Rights Committee directed their observations in relation to the amendments to the NTA to the rights of Indigenous people under the principle of self-determination to control their land and their resources. Both these Committees and the CERD Committee urged Australia to ensure greater participation by Indigenous people in decisions that affect them.

The evolution of the principle of self-determination 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 that acknowledge and assign rights to only two entities, the state and the individual. (116) The foundation of international law in the nation state whose social organisations are characterised by exclusive territory and centralised and hierarchical authority, meant that Indigenous people, organised through tribal or kinship ties, decentralised political structures and overlapping territorial spheres, would never benefit from the international law of nations. The characterisation of states as 'free, independent and equal' provides the basis of modern international law:

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. (117)

Theorists of international law adopted an approach that 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. (118)

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. (119)

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. (120)

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, (121) 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'. (122)

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 present government's recent review of international treaties discussed at pages 26-27 above can be understood as a response to the challenge that human rights obligations, and in particular the right to self-determination poses 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.

The problem with relying solely on the international human rights system as a basis for the establishment of a new relationship between Indigenous and non-Indigenous people is not due to the inadequacy of the principles it espouses but rather, the reluctance of states to implement or enforce them. This is despite the requirement at international law that international human rights obligations be performed in good faith.

In Australia the implementation of human rights obligations relies on the enactment of domestic legislation . There is no automatic mechanism by which human rights obligations are incorporated into the domestic law. Even where legislation is enacted, there may still be no provision for enforcement within domestic courts. Certainly, in relation to the right of Indigenous people to self-determination there is no domestic implementation or enforcement in Australia.

While an international law process for hearing complaints about treaty breaches exists, (123) there are serious limitations on the effectiveness of this process. Firstly, the findings of the international committee hearing the complaint are not enforceable in the domestic sphere. It is only through indirect international pressure or through a willingness on the state to adhere to the committee's findings that action will be taken to rectify the breach. In addition, communications under the Optional Protocol to the ICCPR provides that only individuals can lodge a complaint against a state. Individuals lodging complaints in relation to a collective right to self-determination have no standing to take a representative action on behalf of their people. Consequently, there is no effective remedy for Indigenous people whose right to self-determination has been denied. Antonio Cassese comments on the limitations which deny Indigenous people a means of enforcing their right to self-determination at international law as follows:

The Human Rights Committee has chosen a strict interpretation whereby the 'collective right' set our in Article 1 cannot be indicated by individuals. Under this interpretation only 'individual rights' can be invoked before the Committee.

It follows from this that ultimately, under the Covenants, peoples do not actually possess a veritable right to self-determination. To assert that peoples possess a legal right would be tantamount to asserting the existence of a right that exists in theory only. It is the Contracting States which hold the rights conferred by the Covenants. Peoples are simply the 'beneficiaries' of these State rights and of the corresponding duties incumbent upon each Contracting State. (124)

Thus, while international human rights norms provide a set of principles for establishing a new relationship between Indigenous and non-Indigenous people in Australia these principles must be adopted and incorporated domestically as a result of negotiations in which both Indigenous and non-Indigenous representatives enter freely, willingly and in good faith.

The reconciliation process has made clear the pressing need for Aboriginal peoples to negotiate freely the terms of their continuing relationship with Australia. The above analysis shows that there is also a pressing need for non-Indigenous people to re-establish the foundations of a nation which can no longer justify the means by which its sovereignty was first acquired. This analysis also shows that the recognition of Indigenous people's right to their land and the origins of a nation are inextricably related and that changes to one part of the relationship infer and require changes to the other. Developments in native title law reflect upon the ethical foundations of the nation.

Various avenues by which a new relationship between Indigenous and non-Indigenous people can be established have been discussed. Human rights principles provide a set of norms on which to rebuild this relationship which is so fundamental to the nation. The application of these principles must be negotiated and agreed upon by both parties before a new relationship can emerge. A process must be put in place for continuing negotiations along these lines.

The Council for Reconciliation (CAR) included in its report to Parliament (125) a draft Bill which forms a framework for the ongoing negotiation of unresolved issues between Indigenous and non-Indigenous people. The objects of the draft legislation include;

• To acknowledge the progress towards reconciliation and establish a process for reporting on the nation's future progress;
• To establish processes to identify and resolve the outstanding issues between Indigenous peoples and the Australian community;
• To initiate a negotiation process to resolve reconciliation issues between Indigenous peoples, and the wider community through the Commonwealth government that will result in a Treaty or Agreement.

The underlying assumption of the draft Bill is that reconciliation is an ongoing process in which unresolved issues are squarely raised and processes put in place for their resolution based on the informed consent of both sides. It has been argued in this chapter that an unresolved issue that needs to be negotiated and agreed upon before reconciliation can be achieved is the recognition of Indigenous people's right to land. The resolution of this issue with the informed consent of Indigenous people would exclude the extinguishment of native title. As was stated by the Canadian Royal Commission on Aboriginal Peoples,

[N]othing is more important to treaty nations than their connection with their traditional lands and territories, nothing is more fundamental to their cultures, their identities and their economies. We were told by many witnesses at our hearings that extinguishment is literally inconceivable in treaty nations cultures.

The treaty nations maintain with virtual unanimity that they did not agree to extinguish their rights to their traditional lands and territories but agreed instead to share them in some equitable fashion with the newcomers. (126)

Special Rapporteur Miguel Alfonso Martinez also considers the issue of 'recognition of indigenous peoples' right to their lands and their resources, and to continue engaging, unmolested, in their traditional economic activities on those lands' (127) to be of central importance in establishing a renewed relationship between Indigenous and non-Indigenous people.

This is the paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multi-national societies. Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival. (128)

Martinez, in the conclusions and recommendations of his report supports the process adopted in the draft Bill:

Finally, the Special Rapporteur is strongly convinced that the process of negotiation and seeking consent inherent in treaty-making (in the broadest sense) is the most suitable way not only of securing an effective indigenous contribution to any effort towards the eventual recognition or restitution of their rights and freedoms, but also of establishing much needed practical mechanisms to facilitate the realization and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict resolution of indigenous issues at all levels with indigenous free and educated consent. (129)

Martinez also recommends that agreements negotiated in a treaty-making process such as that envisaged by the draft Bill should maintain their character as 'instruments with international status'. (130) In this way the agreement process is consistent with the human rights principle of self-determination that recognises Indigenous people as a separate and distinct people, capable of negotiating with nations on an equal footing. Yet it is a notion of self-determination that does not seek to replace exclusive jurisdiction by a non-Indigenous state with exclusive Indigenous jurisdiction or sovereignty. Rather the process emphasises the real nature of treaty relationships, sharing and mutual benefit. The mutual benefit to be gained from negotiation based on consent and equality is that what was a contradiction at the foundation of our nation between the conflicting claims of Indigenous and non-Indigenous people to the jurisdiction of traditional lands, becomes an agreement as to the basis of our coexistence.

Footnotes

1. On 9 December 2000 the Senate referred to the PJC for inquiry and report; (a) whether the finding of the Committee on the Elimination of Racial Discrimination (CERD) that the Native Title Amendment Act 1998 is consistent 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 the 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 on the Act would assist in establishing a better informed basis for amendment to the Act.

2. 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: CERD and the Native Title Amendment Act 1999, June 2000 (PJC Report).

3. PJC Report, op cit,, Executive Summary, pix.

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

5. Committee on the Elimination of Racial Discrimination (CERD), General Recommendation XIV - Definition of discrimination, 19/03/93, para 2.

6. Mabo v Queensland (No.2) (1992) 175 CLR 1(the Mabo decision).

7. ibid, p58.

8. ibid, p40.

9. PJC Report, op cit, p10.

10. ibid, Executive Summary, pix.

11. ibid, p10.

12. Committee on the Elimination of Racial Discrimination. Decision (2)54 on Australia, 18 March 1999, UN Doc CERD/C/54/Misc.40/Rev.2. (CERD Decision 2(54)).

13. The four sets of provisions are considered in the Majority Report of the PJC Report at pp37- 58.

14. Wik v Queensland (1996) 187 CLR 1 (the Wik decision).

15. PJC Report, op cit, p42.

16. ibid, p43.

17. ibid, p43.

18. ibid, p45.

19 .ibid, p44.

20. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Inquiry of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund into CERD and the Native Title Amendment Act 1998, May 2000, pp14-17. ATSISJ Commissioner's Submission to the PJC Inquiry into CERD. See: Appendix 1. The submission is also available on the HREOC website: www.hreoc.gov.au .

21. PJC Report, op cit, p45.

22. ibid, p48.

23. ibid, p37. This argument is put generally in relation to the four sets of provisions.

24. ibid, p46.

25. ibid. The majority of the PJC are here quoting from their Tenth Report where they found it appropriate that the Parliament intervene to resolve extinguishment where this is unclear at common law.

26. ibid.

27. ATSISJ Commissioner's Submission to the Inquiry into CERD, op cit, p17.

28. NTA, Division 3, Subdivision G, Part 2, deals with the validation of primary production activities listed under s24GA, including cultivating land; maintaining, breeding or agisting animals; taking or catching fish or shellfish; forest operations; horticultural activities; aquacultural activities; and leaving fallow or de-stocking any land in connection with the doing of any thing that is a primary production activity. NTA s24GE also authorises the taking of natural resources from pastoral leases without negotiating with Indigenous people.

29. PJC Report, op cit, p49.

30. CERD decision 2(54), op cit, para 6. Committee member Mr. Aboul-Nasr discusses this issue when examining Australia. See: Transcript of Australia's Hearing before the CERD Committee, Summary of Record of the 1323 rd meeting, Committee on the Elimination of Racial Discrimination, p44.

31. ibid.

32. PJC Report, op cit, p52.

33. ibid, pp52-54.

34. ibid, pp53-54.

35. See: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, pp73-116 for the Commissioner's response to these arguments.

36. ibid, pp100-105.

37. ibid, p96.

38. ICERD, Article 1(4)

39. The oral appearance of the Australian government delegation before the CERD Committee is documented in two ways: (i) the unofficial, complete transcript of the dialogue by Foundation for Islander Research Action (FAIRA), Transcript of Australia's hearing before the CERD Committee - 1393 rd , 1394 th and 1395 th meetings, 21-22 March 2000, FAIRA, Brisbane 2000, ( FAIRA, CERD Transcript,- 21-22 March 2000), see also www.faira.org.au/cerd/ ; and (ii) the official United Nations summary records: Committee on the Elimination of Racial Discrimination, Summary record - 1393 rd meeting, UN Doc CERD/C/SR.ձ Committee on the Elimination of Racial Discrimination, Summary record - 1394 th meeting, UN Doc CERD/C/SR.1394 (Transcript only available in French); Committee on the Elimination of Racial Discrimination, Summary record - 1395th meeting, UN Doc CERD/C/SR.ճ Committee on the Elimination of Racial Discrimination, Summary record - 1398 th meeting, UN Doc CERD/C/SR.1398. (Transcript only available in French). Reference is also made to the written answers provided by the Australian delegation to the Committee. Copies of the written answers supplied by the government are available from the Secretariat of the CERD or by contacting the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, HREOC.

40. 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, at para 8.

41. Ms McDougall is the Country Rapporteur for Australia. She is also the expert nominated for election to the CERD Committee by the United States of America. The country rapporteur leads the Committee in its consideration and questioning of the State Party.

42. l FAIRA, CERD Transcript, 21-22 March 2000, 1394 th meeting, Part III, pp2-3.

43. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does Australia regard the Convention as requiring formal or substantive equality. See: n42.

44. FAIRA, CERD Transcript, 21-22 March 2000, 1394 th meeting, Part III, p12.

45. Australia's appearance in March 1999 was in relation to the early warning procedure and the native title amendments. For an analysis of the government's explanation of how it believed the native title amendments to be consistent with the Convention see: Native title report 1999, op cit, Chapter Dick, D. and Donaldson, M., The compatibility of the amended Native Title Act 1993 (Cth) with the United Nations Convention on the Elimination of All Forms of Racial Discrimination, Issues Paper 29: Land, rights, laws: Issues of native title, Native Titles Research Unit, AIATSIS Canberra 1999.

46. FAIRA, CERD Transcript, 21-22 March 2000, 1395 th meeting p2.

47. Ms Leon, Foundation for Aboriginal Islander Action (FAIRA), Transcript of Australia's appearance before the Human Rights Committee, 20-21 July 2000, 21 July 2000, FAIRA Brisbane 2000, p19, ( FAIRA, Human Rights Committee Transcript). See: www.faira.org.au/hrc/ . See also Human Rights Committee, Summary record of the 1856 th meeting: Australia, UN Doc CCPR/C/SR.1856, 28/07/ߐ Human Rights Committee, Summary record of the 1858 th meeting: Australia, UN Doc CCPR/C/SR.1858, 28/07/2000.

48. Mabo, op cit, p40.

49. Robert Orr, Q.C. Hansard, Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 23 February 2000, p146.

50. Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia op cit, para 9.

51. Ms McDougall, Concluding Remarks, FAIRA, CERD Transcript, 21-22 March 2000, 1395 th meeting, Part I, p6.

52. Committee on the Elimination of Racial Discrimination, General Recommendation on Indigenous Peoples, UN Doc CERD/C/51/Misc 13/Rev 4 (1997) para 4(c).

53. The hearing of Australia before the Human Rights Committee is documented in Foundation for Islander Research Action (FAIRA), Transcript of Australia's hearing before Human Rights Committee - 69 th session, 20 and 21 July 2000, FAIRA, Brisbane 2000, ( FAIRA, HRC Transcript, 20-21 July 2000). See: www.faira.org.au/hrc .

54. ICCPR, Article 40.

55. UN Doc CCPR/C/AUS/99/3 and 4.

56. ICCPR, Article 28.1.

57. ibid, Article 28.2.

58. Manfred Nowak UN Covenant on Civil and Political Rights ICCPR Commentary 562.

59. UN Doc CCPR/CO/69/AUS, para 9.

60. ibid.

61. See: p19.

62. UN Doc CCPR/CO/69/AUS, op cit, para 10.

63. ibid.

64. FAIRA, HRC Transcript, 20-21 July 2000, 20 July, op cit, p18 of 46.

65. ibid, p20 of 46.

66. ibid, p21 of 46.

67. ibid, pp38-39 of 46

68. ibid, p9 of 51.

69. ibid, p19 of 51.

70. ibid, pp43-44 of 46.

71. Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights; Australia, E/C.12/1/Add.50, 1 September 2000.

72. The Hon A. Downer, Minister for Foreign Affairs, Government to review UN treaty Committees, Press Release, 30 March 2000.

73. The Hon A. Downer, Minister for Foreign Affairs, Australia's hope for the United Nations in the twenty-first century, Speech - 2000 National Youth Conference of the United Nations Youth Association, Melbourne, 3 July 2000.

74. Minister for Foreign Affairs, Government to review UN treaty Committees, Press Release, 30 March 2000.

75. Commonwealth of Australia, Comments of the government of Australia on the concluding observations adopted by the Committee on the Elimination of Racial Discrimination on the tenth, eleventh and twelfth periodic reports of Australia, Annex X in Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination, UN Doc: A/55/18. (Sessional/Annual Report of Committee), 17/10/2000.

76. This point is discussed at length in Chapter 2 of the Native title report 1999 and the ATSISJ Commissioner's Submission to the PJC Inquiry into CERD, op cit.

77. Mr Henkin, FAIRA, HRC Transcript, 20-21 July 2000, op cit, 20 July, pp42-43 of 46.

78. Council for Aboriginal Reconciliation, Corroboree 2000: Towards Reconciliation, Canberra 2000. See: www.reconciliation.org.au/towards/index .

79. Council for Aboriginal Reconciliation, Australian Declaration Towards Reconciliation, Canberra 2000.

80. ibid.

81. ibid.

82.Tully, J., "The Struggles For and Of Freedom", in Political Theory and the Rights of Indigenous Peoples, Duncan I., Patton P. and Sanders W., eds, Cambridge University Press, 2000, pp39-40.

83. Commentaries, Bk1, ch.4, pp106-108, referred to in Mabo. op cit, p34.

84. Mabo, op cit, p32.

85. ibid, relying on Lindley, The Acquisition and Government of Backward Territory in International Law, (1926) Chapters III and IV.

86. ibid, p36.

87. Cooper v Stuart (1889) 14 App Cases 286, p291.

88. Advisory Opinion on Western Sahara [Western Sahara Case] [1975 ] ICJR. 12.

89. Martinez, M., Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/Sub.2/1999/20, 22 June ߏ and Cobo, M., Study of the Problem of Discrimination against Indigenous Populations, E/CN.4/Sub.2/1986/7/Add.4.

90. Mabo, op cit, p38.

91. ibid, p36.

92. In re Southern Rhodesia (60) (1919) AC 211, pp233-234, per Lord Sumner, quoted in Mabo p39.

93. Martinez, op cit.

94. Cobo, M., Study of the Problem of Discrimination against Indigenous Populations, E/CN.4/ Sub. 2/1986/7/Add.4.

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

96. The Sub-Commission on the Promotion and Protection of Human Rights is under the Commission on Human Rights. It is out of this Sub-Commission that the Working Group on Indigenous Populations is convened.

97. Martinez, op cit, paras 172-174.

98. Daes, op cit, para 30.

99. Martinez, op cit, para 192.

100. Mabo, op cit p36.

101. ibid, p45.

102. ibid, p58.

103. New South Wales v Commonwealth (The Sea and Submerged Lands Case) (1975) 135 CLR, p338.

104. Mabo, op cit, p32.

105. ibid, pp44-45.

106. ibid, pp59-60.

107. ibid, p63.

108. Daes, op cit, paras 37-38.

109. Western Australian v Ward (2000) 170 ALR Ÿ and Commonwealth of Australia v Yarmirr (1999) 168 ALR 426.

110. Mabo, op cit, p36.

111. The Native Title Act 1993 as amended by the Native Title Amendment Act 1998.

112. ICERD, Articles 2 and 5.

113. ICCPR, Article 27.

114. ICCPR, Article 1.

115. Martinez, op cit, para 256.

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

117. ibid, p15.

118. Daes, op cit, para 21.

119. Daes, op cit, para 26.

120. Anaya, op cit, p79.

121. Advisory Opinion on Western Sahara [Western Sahara Case] [1975 ] ICJR p12.

122. Anaya, op cit, p84.

123. The Optional Protocol to the ICCPR, to which Australia is a signatory, provides a complaint mechanism by which the Human Rights Committee hears complaints in respect of breaches of ICCPR. Only individuals or other Contracting States can submit communications about the actions of the State. A Committee will not hear a complaint unless all domestic remedies have been exhausted.

124. Cassese, A., Self Determination of Peoples, A legal Appraisal, Cambridge University Press 1995, p143.

125. Council for Aboriginal Reconciliation, Reconciliation, Australia's challenge: final report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament. December 2000.See: www.reconciliation.org.au/finalreport .

126. Report of the Royal Commission on Aboriginal Peoples 1996, Vol 2, Part 1, p44.

127. Martinez, op cit, para 252.

128. ibid, para 252.

129. ibid, para 263.

130. ibid, paras 270 and 271.