Appendix 2
Information concerning native title provided by the Human Rights and Equal Opportunity Commission to United Nations Committees in 2000
The following is an extract of the information on native title provided to:
1) Committee on the Elimination of All Forms of Racial Discrimination (CERD): additional information to Australia's 10 th , 11 th and 12 th periodic reports under CERD, March 2000;
2) Human Rights Committee: additional information to Australia's third and fourth periodic reports, for consideration during the 69 th session, July 2000; and
3) Committee on Economic, Social and Cultural Rights: information in relation to consideration of Australia, August 2000.
All information was brought to the attention of the Australian government through a range of HREOC publications and submissions.
1. Native Title
Summary of Issue
- Native title is the legal recognition given to the traditional laws acknowledged by, and the traditional customs observed by, Indigenous people. The High Court of Australia has also recognised the power of the State to extinguish native title.
- The common law is developing a construction of native title that makes it vulnerable to permanent extinguishment. This construction is referred to as a bundle of rights approach to native title. Rather than the relationship between these rights being perceived as a system of rights, native title is seen as a set of traditional practices that will only be protected by the law if they continue to be practised as they were by the original inhabitants.
- Amendments to
the following aspects of the Native Title Act prefer non-Indigenous
title to land over Indigenous title to land:
(i) The validation provisions;
(ii) The confirmation provisions;
(iii) The future act provisions; and
(iv) The right to negotiate. - In each of these instances, Indigenous interests are either extinguished or impaired in order to ensure the full enjoyment of non-Indigenous interests in land where there is any inconsistency between Indigenous and non-Indigenous interests.(1)
- Native title holders are relevantly different to other persons vested with interests in land, given their level of dispossession and disadvantage. It is fitting that native title should be given particular protection consistent with the internationally recognised rights to enjoy one's culture and not be arbitrarily deprived of property.(2)
Relevance to the ICERD
- Articles 1(1): A distinction based on race which has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing;
- Article 2(1)(a): States not to engage in discrimination;
- Article 2(1)(c): States to repeal all discriminatory laws;
- Article 5: Equality before the law; and
- Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination.
The amendments to the Native Title Act and their relevance to ICERD: Decision 2(54) of the CERD noted that the validation, confirmation and primary production upgrade provisions, and restrictions and exceptions to the right to negotiate discriminate against native title holders. Since August 1999, state and territory native title legislation continues to be considered or has been enacted under the authority of the above discriminatory provisions. The Commonwealth legislation's authorisation of state and territory native title regimes also denies Indigenous peoples 'effective protection and remedies' against acts of racial discrimination that violate their human rights and fundamental freedoms, as required under Article 6.
- Validation' provisions: Generally states and Territories have been unwilling to negotiate an alternative to blanket validation legislation. The validation of intermediate period acts deprives native title holders of procedural rights to engage in decisions about land, substituting a compensation scheme for rights removed.
- 'Confirmation' provisions: All states and Territories except Tasmania have introduced confirmation legislation. Since August 1999, Western Australia has passed legislation confirming extinguishment on further titles.
- 'Right to negotiate' provisions: In paragraph 7 of Decision 2(54) the CERD expressed its concern that provisions within the NTA that place 'restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses' are discriminatory. Most states and territories have introduced legislation that contains provisions that restrict the ability of native title holders to negotiate over non-Indigenous land uses.
- Failure of the amended Native Title Act to incorporate the principles of equality: In order to restitute the principles of equality and non-discrimination in state legislation it would be necessary to amend the Commonwealth Native Title Act so as to make it consistent with the RDA.
- Lack of consultation and informed consent for the amendments: The failure of the government to enter into negotiations with native title holders to amend the Native Title Act also places Australia in breach of its obligations under the Convention.
Relevance to the ICCPR
- Articles 1 and 27: Self-determination and the rights of minorities; and
- Articles 2 and 26: Non-discrimination and equality.
Articles 1 and 27: Self-determination and the rights of minorities
The extinguishment or impairment of native title is a breach of Articles 1 and 27 of the ICCPR, which require the state to protect the culture of Indigenous peoples. The HRC has confirmed that Indigenous peoples are minorities for the purposes of Article 27 in a number of cases, such as in Kitok v Sweden (197/85), Ominayak v Canada (167/87), and the Länsman cases (511/92 and 671/95). The HRC has also recognised the special place of land rights within Indigenous cultures, and that this 'does not prejudice the sovereignty and territorial integrity of a State party'.(3)
The following provisions of the amended NTA and developments in the common law subordinate Indigenous interests to those of non-Indigenous interests:
- Future act provisions: The absolute protection of future acts on native title land means that native-title holders do not have any meaningful right to participate in the decision of whether the act will be performed. In this regard, the 'future acts' and especially the 'primary production' breach Articles 1 and 27 of the ICCPR; the 'upgrade' provisions also breach Australia's positive duties to protect native title under Article 1.
- Right to negotiate: Diminution of the right to negotiate diminishes Article 1 rights of self-determination, as interpreted by UN treaty bodies, by rolling back opportunities for Indigenous peoples to participate in the management of their land and resources.(4) Denial of native title holders' right to negotiate also amounts to denial of a minority's exercise of cultural rights, which constitutes a breach of Article 27.
- 'Validation' and 'confirmation' provisions: The validation provisions, which retrospectively validate all land grants issued in contravention of native title rights, and the confirmation provisions, which wholly extinguish native title rights, or authorise such extinguishment, and therefore wholly deny cultural rights associated with affected land, to a breach of Article 27 rights.
- Lack of consultation and informed consent for the amendments: The failure to consult constitutes a breach of Article 27. In particular, General Comment 23 states, at paragraph 7: 'The enjoyment of [cultural] rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them'.
- Common law of native title: Article 27 of the ICCPR protects minority contemporary cultural practices as well as traditional practices.(5) Under the 'bundle of rights' approach, each particular native title right can be extinguished on the basis of inconsistency with the exercise of rights pursuant to an act of the Crown.
- Where the common law is developing in a direction contrary to Australia's obligations under ICCPR it is incumbent on Australia to legislate to ensure that appropriate protection is extended to Indigenous people.
Articles 2 and 26: Non-discrimination and equality
Articles 2 and 26 of ICCPR require the State to protect Indigenous rights to land to the same extent that non-Indigenous interests in land are protected. The priority given to non-Indigenous interests in land over Indigenous interests in land is a breach of these Articles.
The following provisions of the NTA breach these articles:
- 'Validation', 'confirmation' and future act provisions: These provisions diminish the property rights of native title holders and increase the property rights of non-native title holders. Although property is not a protected ICCPR right, Article 26 prohibits discrimination in relation to the exercise of all human rights, including non-ICCPR rights.(6)
- Right to Negotiate: Even if the 'right to negotiate' is classified as a 'special measure', it cannot be said to have exhausted its purpose. There is no evidence that Indigenous people no longer suffer the effect of past discrimination on pastoral leasehold land.(7) Such positive measures must also respect the provisions of both Articles 2(1) and 26 of the Covenant as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population.
- Failure of the amended Native Title Act to incorporate the principles of equality: The Racial Discrimination Act 1975 (Cth) embodies Australia's domestic implementation of its obligations under CERD.(8) It makes discrimination on the basis of race, colour, descent or national or ethnic origin unlawful. It binds both state and federal governments. The recent amendments to the NTA (9) provided an opportunity to apply the RDA unequivocally. As amended, section 7 of the NTA does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA.
Relevance to the ICESCR
- Article 1: Self-determination;
- Article 2.1: Progressive realisation of rights;
- Article 2.2: Native title rights to be enjoyed on a non-discriminatory basis; and
- Article 15: Native title and cultural rights.
Article 1: Self-determination
There are two bases on which the protection of native title is required in order to meet the obligation under Article 1 in relation to the right to self-determination.
- The first is the strong link established in international law between the right of self-determination for Indigenous peoples and control over their lands and resources.(10)
- The second basis for the protection of native title encompasses political participation rights, including the right to be consulted and to give or withhold consent on an informed basis in respect of decisions that will directly affect Indigenous peoples. The right of effective participation applies to the decision to enact and amend legislation in respect of native title.
- The fact that traditionally Aboriginal and Torres Strait Islander people used their land as a resource for the sustenance and well being of their community is not, under the amended NTA, translated into a right to participate in the modern management of their land. Native title rights are isolated from the day-to-day lives of the communities that observe and integrate their traditions into the texture of contemporary life. In this way native title is quarantined from the broader principle of self-determination.
Article 2.1: Progressive realisation of rights
- Article 2.1 of ICESCR requires States to take steps to achieve progressively the full realisation of the rights recognised by the Covenant. Where the common law is developing in a direction contrary to Australia's obligations under ICESCR it is incumbent on Australia to legislate to ensure that appropriate protection is extended to Indigenous people.
- The amended NTA does not overcome the inadequate protection extended to native title by the common law. Indeed the confirmation provisions seek to confirm, and at times go beyond, the extinguishments permitted by the common law.
- The NTA also displaces, to the extent of any inconsistency, the only explicit protection against the discriminatory exercise of sovereign power against the Indigenous inhabitants, the Racial Discrimination Act 1975 (Commonwealth) (RDA).
- Significant aspects of the amended NTA are discriminatory and thus inconsistent with the RDA. Without any constitutional entrenchment of either non-discrimination norms or Indigenous rights in Australia, through a Bill of Rights, there is no domestic mechanism to ensure that the cultural and economic rights of Indigenous people are protected.
Article 2.2: Native title rights to be enjoyed on a non-discriminatory basis
- Article 2.2 of ICESCR requires that the rights conferred by the Convention be enjoyed on a non-discriminatory basis.
- The CERD's March 1999 decision under its early warning and urgent action procedures in respect of Australia's compliance with its obligations under the ICERD found that the amended NTA was discriminatory in that it preferred non-Indigenous interests over Indigenous ones.
- The CERD's analysis supports the conclusion that there is a contravention of the non-discrimination requirements of ICESCR as reflected in Article 2.2.
Article 15: Native title and cultural rights
- Article 15 provides for the right of everyone to take part in cultural life (15(a)). Accordingly, any diminution of native title rights is a derogation from the right of Indigenous people to take part in and enjoy their cultural life. The amendments to the NTA will make it more difficult to protect important cultural and sacred sites from mining and other developments, to undertake ceremonies, to instruct children in culture and law and to carry out traditional activities such as camping, hunting and fishing.
1 The Committee on the Elimination of Racial Discrimination (the CERD) has observed that the amended Act appears to create legal certainty for governments and third parties at the expense of native title holders. They also noted that the process by which the NTA amendments of 1998 were enacted did not involve the informed consent of Indigenous people or their representatives, nor were the amendments acceptable to the Indigenous people whose rights are directly affected by them. Committee on the Elimination of Racial Discrimination, On Australia, paragraphs 6 & 9. 18 March 1999, UN Doc CERD/C/54/Misc.40/Rev.2.
2 Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, HREOC, Sydney, 1999, p105. The HRC has confirmed that different rights for vulnerable and disadvantaged groups are permissible under the ICCPR at paragraph 10 of General Comment 18.
3 HRC, General Comment 23 at paragraphs 3.2 and 7.
4 Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit, p62.
5 See Länsman v Finland (511/92).
6 See HRC definition of discrimination in General Comment 18 at paragraph 7.
7 Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit, p114.
8 The preamble to the Racial Discrimination Act 1975 (Cth) states that the purpose of the Act is 'to make provision for giving effect to the Convention' (ie. CERD).
9 The amendments were passed on 8 July 1998 and most came into effect from 30 September 1998.
10 See for example the 1990 case of Chief Ominayak v Canada UN Doc A/47/40 (1992).
