1999 Native Title Report: Summary

1999 Native Title Report: Summary



Overview

The report considers the implications of the March 1999 decision of the Committee on the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which found that the Federal Government's 1998 amendments to the Native Title Act 1993 are in breach of Australia's obligations under the Convention.

The Committee considered the amendments according to the two fundamental requirements of the Convention:

1. to treat all people equally and in a non-discriminatory manner, and

2. to ensure the "effective participation" of Indigenous people in decisions which affect them.

The Committee found that the amendments to the Native Title Act are discriminatory and implemented without the informed consent of Indigenous people.

The Report looks at these two fundamental principles in relation to the following areas:

a. the adequacy of the minimum standards which are applied to state governments in their management of native title regimes;

b. the impact of the registration test on native title claims;

c. the impact of the amendments to the Native Title Act in relation to native title representative bodies on the capacity of Indigenous people to participate in and determine the outcomes of the decisions which affect them.

The report concludes that the guiding principle of equality and effective participation have been eroded by the Government's amendments to the Native Title Act and diluted by an ever-xpanding labyrinth of state legislation.

The report urges an end to the divisive approach to Indigenous issues and calls for an acknowledgment that Indigenous people have a right to enjoy their cultural identity.

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Chapter 1: Introduction

While the High Court's decision in the Mabo case rectified the failure of Australian society to legally recognise Indigenous culture and law, the issue which remains to be resolved is the meaning and value that contemporary Australian society will give to Indigenous culture. The introduction critically examines this issue by reviewing native title legislation and common law decisions during the reporting period. In these two areas the trend has been to place native title in a subservient position to the interests and cultural values of non-Indigenous people. The reconciliation process is also evaluated by its stance on native title and the willingness of Australian citizens to give equal respect to Indigenous culture.

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Chapter 2: International scrutiny of the amended Native Title Act 1993

The report examines the implications of the findings of the 1999 decision of the Committee on the Convention on the Elimination of All Forms of Racial Discrimination (CERD) that the amendments to the Native Title Act breached Australian's obligations under CERD by discriminating against Indigenous people.

CERD findings

Articles 2 and 5 of CERD have two fundamental requirements:

i. To treat all people equally in a non-discriminatory manner

The Committee's understanding of equality requires that the history of dispossession of Indigenous Australians be redressed and that the unique relationship between land and the traditions and cultural practices of Indigenous Australians be recognised and protected (p28). This approach to equality is often referred to as substantive equality and can be contrasted to contrasted to a "formal equality" underlying the amendments to the Native Title Act which requires that everyone be treated the same regardless of cultural difference or historical disadvantage (pp28-29).

Native title is a non-discriminatory recognition of Indigenous culture. Under the CERD Australia has an obligation to recognise and protect this culture. Significant amendments to the Native Title Act withdrew the protection which the original Act extended to native title holders. The Committee found these amendments to be discriminatory.

ii. To ensure the "effective participation" of Indigenous peoples in decisions that affect them

In determining that the amendments to the Native Title Act were discriminatory, the CERD Committee looked at the level of participation of Indigenous people in the formulation of the amendments, and whether the informed consent of Indigenous people was given. The report concludes, consistently with the CERD decision, that Indigenous people did not consent to the amendments.

The dialogue between the Committee and representatives of Australian government

An examination of the dialogue between the Committee members and representatives of the government reveals the reasoning which led the Committee to conclude that the amendments were discriminatory on the basis of race. It also reveals the reasoning which justified the Government's amendments to the Act.

The Australian Government sought to justify the amendments by arguing that:

  • past discrimination cannot be undone,
  • the amendments do no more than validate past discrimination and so are not discriminatory in themselves, and
  • the human rights obligation on effective participation is limited to consultation with Indigenous groups and does not require informed consent (pp2-43).

The Committee responded that:

  • it is an obligation under CERD that past discrimination be redressed - in other words, equality must be given substance, it must be achieved in fact, and
  • merely to consult with Indigenous groups as interested stakeholders does not meet the standard of effective participation which applies to issues, such as native title, which affect Indigenous people at a fundamental level. The Committee made it clear that unless the legislative regimes which affect native title are negotiated with Indigenous people the Committee will continue to scrutinise and criticise State parties at an international level.

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Chapter 3: State regimes

Minimum standards and state governments native title regimes

In this chapter the Aboriginal and Torres Strait Islander Commissioner, Dr Bill Jonas expresses concern that the minimum standards which the Commonwealth presently applies to state-based native title regimes do not incorporate the human rights of Indigenous people as expressed through the principles of equality and effective participation (p49).

The CERD Committee noted three groups of provisions that allow states to pass legislation which discriminates against Indigenous titleholders. These are "validation" provisions, "confirmation" provisions and alternatives to the right to negotiate provisions. The committee made it clear that these provisions are discriminatory in that the interests of non-Indigenous title holders are preferred over the interests of Indigenous title holders (p49).

The Committee has scrutinised the application of these provisions and notes that the amendments fail to observe the principles of equality and effective participation as discussed in Chapter 2.

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Chapter 4: The registration test

This chapter examines the impact of the amendments to the registration test to be applied to most native title claims lodged since the inception of the NTA in 1994. The report states that the principle of equality requires that legislation protects native title from the destructive impact of mining and other developments (p71). The level of protection is unacceptable if it exceeds conditions which are required to satisfy, on a prima facie basis, a claim to native title at common law.

The report concludes that the conditions of registration exceed those that, on a prima facie basis, satisfy a claim to native title at common law. The test is contrary to the principles of equality and effective participation established by the CERD Committee as the cornerstones of Australia's international obligations to Indigenous people.

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Chapter 5: Native title representative bodies

The amendments to the NTA have significantly altered the identity and functions of representative bodies in their ability to apply or reapply for recognition as a representative body.

Jurisdictional boundaries and eligibility criteria have been substantially amended and accountability requirements significantly changed. The range of functions for representative bodies has been greatly expanded. This chapter examines the overall effect of the amendments from a human rights perspective and asks whether the amendments improve the capacity of Indigenous people to participate in and determine the outcome of the decision which affect them (p91).

The chapter concludes that the emphasis for representative bodies is now on organisational transparency and accountability. The need to support and to develop appropriate organisational mechanisms is stressed but not at the expense of meaningful Indigenous participation at local national and international level (p107).

Last updated 7 October 2003.