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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.