Skip to main content

Search

Native Title Report 2002: Discrimination and native title

Chapter
3: Discrimination and native title

Principles of
Discrimination under Australian Law

Application of
the Racial Discrimination Act to the Extinguishment of Native Title

Extinguishment
and Discrimination under the Native Title Act

Extinguishment
of Native Title at International Law

Comparing the
Domestic and International Standard of Equality


The resolution of
the debate as to whether the extinguishment of native title by the common
law and the Native Title Act 1993 (Cwlth) (‘NTA’) is
racially discriminatory, depends upon the interpretation given to its
two essential components: extinguishment and discrimination. The interpretation
that the High Court has given to the extinguishment provisions of the
NTA and its relationship with the common law was the subject of the chapter
2. It is to the second of these components, the meaning of discrimination
as it applies to the extinguishment of native title, that I now turn.

The law of discrimination
is engaged when Indigenous people who hold native title enjoy their human
rights in relation to land to a more limited extent than do other persons.
In order to determine whether the extinguishment of native title is discriminatory
the law has had to develop a response to the specific issues raised by
the recognition of native title, a proprietary interest which is inherent
to a particular racial group only: Indigenous people. The approach to
equality based on a comparison of outcomes between Indigenous people and
non-Indigenous people in relation to employment, home ownership, education
and welfare, cannot be simply applied to native title. The recognition
of a right inherent to a particular racial group requires a different
approach. The courts have had to grapple with the meaning of discrimination
in order to compare the treatment of an inherent and thus culturally unique
property right with the treatment of other property rights.

The High Court’s
decision in Miriuwung Gajerrong [1] provides
an insightful analysis of the Racial Discrimination Act 1975 (Cwlth)
(‘RDA’) as it applies to the extinguishment of native title.
Ironically, in the context of native title law, this analysis goes to
the question of how and in what circumstances the NTA nullifies the effect
of the RDA so as to validate discriminatory laws that would otherwise
be invalid under the RDA. Nevertheless the Court’s consideration
of the application of the RDA to laws that authorise dealings with land
provides a useful guide to how the extinguishment or impairment of native
title by such dealings breaches the RDA and the International Convention
on the Elimination of All Forms of Racial Discrimination
[2]
(‘ICERD’), the treaty from which the RDA derives. While no domestic
legal liability falls on the Government as a result of such a breach,
international law requires Australia to account for its failure to abide
by the human rights standards of equality and non-discrimination. This
may occur through the periodic reporting mechanism (due under ICERD in
October 2000 and expected to be provided in 2003), the individual complaint
procedure, or the Urgent Action procedure. [3]

Principles
of Discrimination under Australian Law

Miriuwung Gajerrong
reiterates the principles which guide the High Court’s interpretation
of whether laws of the Commonwealth, State or Territory are discriminatory
under the RDA, particularly as they apply to legislation which authorises
dealings with land. These principles are based on the High Court’s
decisions in Gerhardy v Brown, [4]
Mabo (No 1), [5] and Western Australia
v The Commonwealth
[6]Native Title Act
Case
’). The key principles are set out below.

1 Section 10 of
the RDA is the most appropriate section for determining whether legislative
or executive acts that authorise dealings with Crown land are discriminatory.
Section 10 provides:

If, by reason
of, or of a provisions of, a law of the Commonwealth or of a State
or Territory, persons of a particular race, colour or national or
ethnic origin, or enjoy a right to a more limited extent than persons
of another race, colour, or national or ethnic origin, then, notwithstanding
anything in that law, persons of the first-mentioned race, colour
or national or ethnic origin shall by force of this section, enjoy
that right to the same extent as persons of that other race, colour
or national or ethnic origin.

It is the application
of section 10 that will determine whether the extinguishment or impairment
of native title by dealings authorised by legislative or executive acts
is discriminatory under Australian domestic law. [7]

2 Section 10 of
the RDA is not merely concerned with matters of form but also with matters
of substance; it is concerned with the enjoyment of rights. It involves
looking at more than just the purpose or intention of the legislation
and requires an analysis of the practical operation and effect of the
legislation. [8] Where the effect of a statute is
the unequal enjoyment of rights between racial groups, then s10 is engaged.

3 The High Court’s
interpretation of the standard of equality required by the RDA is based
on the definition of discrimination in Article 1(1) of ICERD which defines
racial discrimination as:

Any distinction,
exclusion, restriction or preference based on race, colour, descent,
or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public
life.

Significantly,
the High Court in Miriuwung Gajerrong did not limit itself to
Article 1 of ICERD in establishing a substantive approach to equality
and non-discrimination under s10 RDA, but also referred to Article 2
of ICERD which requires a state party to ICERD to take effective measures
to nullify laws which have the effect of creating or perpetuating
racial discrimination. [9]

4 In determining
whether the effect of legislative interference is the unequal enjoyment
of rights, section 10 RDA requires a comparison of rights as defined
in s10(2). This includes, but is not limited to, rights of the kind
referred to in Article 5 of ICERD, such as the right to own property
alone and in association with others, [10] a right
to inherit, [11] and a right to be immune from the
arbitrary deprivation of property (implied in other rights and specifically
referred to in article 17(2) of the Universal Declaration of Human
Rights
[12] (‘UHDR’). [13]
Property includes land and chattels and extends to native title rights
and interests. [14]

5 The effect of
RDA s10 upon discriminatory legislation is twofold. First, where a State
law omits to make enjoyment of rights universal, s10 operates to confer
that right on persons of the particular race deprived of the enjoyment
of that right. The RDA does not invalidate the State law but complements
it by extending rights equally. [15] Second, where
the State law imposes a discriminatory burden or prohibition forbidding
enjoyment of a human right or fundamental freedom enjoyed by persons
of another race, s10 confers a right on the persons prohibited. This
necessarily results in an inconsistency between s10 and the prohibition
contained in the State law. Section 109 of the Commonwealth Constitution
operates to invalidate so much of the State legislation that is inconsistent
with the RDA. [16]

6 The twofold effect
of the RDA on discriminatory State law also applies to discriminatory
Territory laws. In relation to the second effect however this occurs,
not through the invalidating effect of S109 of the Constitution, but
because the Territory does not have the power to repeal Commonwealth
legislation. [17]

7 Section 10 of
the RDA is offended where a law purports to expropriate property held
by a particular racial group for purposes additional to or on less stringent
conditions (including lesser or no compensation) than those laws justifying
expropriation of property held by members of the community generally.
[18] The fact that land is ordinarily only acquired
for a public purpose on payment of just terms sets a benchmark for the
way in which expropriation of property should occur for all racial groups.
[19] Expropriation of property belonging to a particular
racial group for different purposes or on lesser terms is discriminatory.
[20]

The way in which
these domestic law principles are applied to determine whether the extinguishment
or impairment of native title is discriminatory is also demonstrated in
Miriuwung Gajerrong. The key principles on the application
of the RDA to the extinguishment or impairment of native title are noted
below.

8 It is because
native title characteristically is held by members of a particular race,
that interference with the enjoyment of native title is capable of amounting
to discrimination on the basis of race colour or national or ethnic
origin.

9 Native title
is a property right and entitled to the protection of Article 5 of ICERD,
which specifically protects the right to own property alone and in association
with others, [21] a right to inherit, [22]
and a right to be immune from the arbitrary deprivation of property
(implied in other rights and specifically referred to in article 17(2)
of the UDHR). [23]

10 Section 10 of
the RDA is concerned with the equal enjoyment of human rights, not simply
the enjoyment of legal rights. This distinction is important in determining
the way in which the principles of equality and non-discrimination deal
with property rights that are unique insofar as they emanate from a
different system of law and custom.

The High Court
confirmed that just because native title has different characteristics
from other forms of title and derives from a different source, it does
not mean it can be given less protection than other forms of title.
The rights which the RDA protects, as identified in Article 5 of ICERD,
do not provide a basis for distinguishing between ownership or inheritance
of different types of property. The right to own and inherit property
must be enjoyed equally regardless of the nature of the property concerned.
Thus it is wrong to say that because native title is inherently fragile,
or because it does not amount to freehold title, depriving people of
the enjoyment of this right is not discriminatory. [24]
It is.

11 Native title
may include a group or individual right. The rights that the RDA protects
extend to group rights emanating from a particular culture. [25]

12 Three applications
for s10 in relation to native title might arise: (i) a State law forbids
enjoyment of a human right or fundamental freedom, such as a right to
property or freedom from the arbitrary deprivation of property, and
the burden falls on all racial groups; (ii) a State law provides for
extinguishment or impairment of land titles but provides for compensation
only in respect of non-native title; (iii) a State law extinguishes
or impairs only native title and leaves other land titles intact. [26]

In relation to
(i) above, there is no discrimination upon which s10 would operate.
In relation to (ii) above, s10 would operate to extend the compensation
to native title holders but the extinguishment would remain valid. In
relation to (iii) above ,s10 would operate to invalidate the State law.
The Court in Miriuwung Gajerrong did not consider the situation
where a law extinguishes only native title and leaves others intact
but provides compensation to native title holders. Nor did the Court
consider the situation where the law takes additional measures to protect
native title rights and interests not available to other title holders.

13 Section 10 of
the RDA is engaged by legislation that regulates or impairs the enjoyment
of native title without extinguishing it. [27]

14 The fact that
laws extinguishing or impairing native title are consistent with the
common law which permits extinguishment or impairment of native title
by a valid exercise of sovereign power, does not mean the RDA does not
apply to those laws. In the Native Title Act Case the question
was whether the WA legislation was inconsistent with s10(1) of the RDA
regardless of whether it was inconsistent with the common law. The High
Court said:

At common law...native
title can be extinguished or impaired by a valid exercise or sovereign
power inconsistent with the continued enjoyment or unimpaired enjoyment
of native title. But the Racial Discrimination Act is superimposed
on the common law and it enhances the enjoyment of those human rights
(earlier mentioned) which affect native title so that Aboriginal holders
are secure in the possession and enjoyment of native title to the
same extent as the holders of other forms of title are secure in the
possession and enjoyment of those titles. The question is whether
the WA Act attempts to diminish that security to the comparative disadvantage
of the Aborigines on whom s7 rights are conferred.

…Those provisions
[of the WA Act] may be consistent with the common law relating to
native title but we are concerned with their consistency with s 10(1)
of the Racial Discrimination Act.

The fact that
a particular statute is consistent with the common law does not exempt
it from the RDA. [28]

Together these principles
constitute a substantive notion of equality. The RDA is concerned with
the enjoyment of human rights, not the treatment of legal interests. It
fastens the notion of discrimination to the international standards from
which the legislation originates. Equality is measured by the extent to
which the laws allow rights and freedoms as defined in ICERD to be enjoyed.

A non-discriminatory
approach to the protection of Indigenous rights does not inquire into
the rights and interests by which the title is constituted, but measures
the extent to which the law permits the Indigenous property right to be
enjoyed against the extent to which the law permits other property rights
to be enjoyed. Thus the law must provide native title with the protection
necessary to ensure it can be enjoyed, according to its tenor, and to
the same extent as non-Indigenous interests in land. Even where property
rights like native title are unique in their origin and characteristics,
discrimination is found not by comparing these characteristics with the
characteristics of non-Indigenous property rights but by comparing the
extent to which the property rights are able to be enjoyed, regardless
of the characteristics of each. Constructed in this way, native title
law should be a vehicle for the continued enjoyment and protection of
Indigenous law and culture.

This non-discriminatory
approach can be contrasted to the way in which the law operates in fact
to extinguish native title.

Application
of the Racial Discrimination Act to the Extinguishment of Native
Title

The test on which
the extinguishment of native title is based, the inconsistency of incidents
test, like the test for discrimination, involves a comparison. Unlike
the comparison which determines discrimination (i.e. a comparison of the
enjoyment of human rights between native titleholders and other titleholders),
the comparison which determines extinguishment is a comparison of the
legal rights constituting native title with the legal rights constituting
the tenure being created. Whenever the comparison draws an inconsistency,
native title is extinguished (see pages 51-54 for the operation of the
inconsistency test).

At this fundamental
level of operation the inconsistency of incidents test can be seen as
discriminatory. Pre-existing Indigenous rights and interests give way
to newly created non-Indigenous rights and interests. However the focus
of the test for discrimination under the RDA is not this comparison. Rather
the RDA is concerned with the effect that the creation of an interest
in land has upon native title when compared with the effect it has on
other titleholders. The operation of the inconsistency of incidents test
is determinative of the extinguishing effect that the creation of new
interests will have on native title. This extinguishing effect on native
titleholders is only discriminatory if, as a result of the creation of
new interests, a similar effect is not imposed on other titleholders or
is imposed on different conditions than the conditions applying to other
titleholders. Thus the extinguishment of native title under the inconsistency
test is integral to a finding of discrimination but is not, of itself,
discriminatory under the RDA.

The role of the inconsistency
test in determining whether State and Territory laws which authorise dealings
in land have a discriminatory impact on native titleholders is illustrated
in Miriuwung Gajerrong. While the legal context for determining
the question of whether the extinguishment of native title by particular
tenures is discriminatory provides no legal redress in the context of
the NTA, the moral concerns remain. It is towards identifying this moral
issue that the High Court’s analysis gives insight.

As indicated in principle
12 above, [29] the RDA identifies discrimination in
two ways; first where the law confers a benefit unequally and second where
the law imposes a detriment unequally. The case studies on pages 56 and
58 of this Report in relation to the creation of a nature reserve under
section 33 of the Land Act 1933 (WA) (‘Land Act’) and
the grant of a mining lease under the Mining Act 1978 (WA) (‘Mining
Act’), demonstrate the way in which the High Court identifies the
first type of discrimination. In each of these case studies, the creation
of the non-Indigenous interests occurs after the enactment of the RDA
(31 October 1975). In each, the application of the inconsistency test
means that the effect of the grant is the extinguishment of some or all
native title rights. Thus native titleholders suffer a detriment. The
question under the RDA is whether that detriment is suffered at all or
on different conditions by other titleholders. Thus, in each case, it
is necessary to compare the effect of the vesting or the grant on native
title with the effect on other forms of title.

In respect of the
grant of a mining lease, it was found that, by applying the inconsistency
of incidents test, the native title right to control access to the land
was extinguished by the grant of a mining lease. There was no provision
for compensation for this extinguishment. Owners and occupiers of the
land on the other hand were entitled to compensation under the Mining
Act ‘according to their respective interests…for all loss and
damage suffered or likely to be suffered by them resulting or arising
from the mining’. [30]

The Court found that
the discriminatory operation of the Mining Act lay in the failure in the
legislation creating the rights to confer a right to compensation to native
title holders for the appropriation of their property in the same way
compensation was provided to other owners and occupiers of the land for
the loss and damage they suffered as a result of mining. The RDA operated
to extend this benefit to native titleholders to the equivalent of that
conferred upon ‘occupiers’ as defined in s123 of the Mining
Act. [31] Section 45 of the NTA further operated to
ensure that compensation would be provided to native title holders on
just terms rather than the equivalent of that received by an occupier
under the Mining Act.

Interestingly, in
their identification of discrimination, the High Court did not consider
the differential impact of the Mining Act whereby native title rights
were permanently extinguished by mining while the rights of occupiers
or owners were only impaired temporarily by mining. On this approach,
native titleholders have suffered a detriment that is not suffered by
any other titleholders; their rights are extinguished. The result of this
type of discrimination is that the grant of the mining lease would be
invalid as would its extinguishing effect on native title (see principle
5 above on page 75). On the Court’s limited reasoning, native title
holders only have a right to compensation as a result of the operation
of the RDA. [32]

In respect of the
other case study, the creation of a nature reserve, the application of
the inconsistency test means that the existence of any native title rights
is inconsistent with the vesting of land for this purpose under s33 of
the Land Act. Native title is thus completely extinguished. The vesting
was found to be discriminatory in that it failed to confer compensation
rights on native titleholders in the same way they were conferred on other
titleholders. [33] The RDA operated to extend the right
to compensation to native titleholders but did not invalidate the extinguishing
effect of the grant.

Miriuwung Gajerrong
also illustrates the second type of discrimination as it applies to native
title; where the laws that create rights confer on native titleholders
a detriment that was not conferred on other titleholders. In relation
to native title, the detriment is extinguishment or impairment of rights
following from the application of the inconsistency test. This occurred
in Miriuwung Gajerrong in relation to those tenures listed at Table No 2
at page 63 of this Report. In those tenures the effect of the RDA is to
invalidate the particular grant. As demonstrated in Table No 2,
the NTA reversed the operation of the RDA in this respect and in the case
of commercial leases native title was extinguished in any case as a result
of the application of the validation provisions.

Many of the tenures
considered in Miriuwung Gajerrong occurred before the enactment
of the RDA in 1975. Consequently, the Court had no need to consider whether
the extinguishment of native title by these tenures was discriminatory.
Yet it is clear that in such cases the statutes by which new interests
in land were created had the same discriminatory impact on native titleholders
as those tenures created after 1975; either to extinguish or impair only
native title rights or, where other interests were affected, to fail to
confer a right to compensation on native title holders only. In all such
cases, whether before or after the enactment of the RDA or the NTA, the
human rights guaranteed at international law to own property alone and
in association with others, to inherit property and to be immune from
the arbitrary deprivation of property, are violated. Yet it is within
the power of the Federal Government, through its legislative arm, to limit
or redress the discriminatory impact of these State and Territory laws
through the NTA.

Extinguishment
and Discrimination under the Native Title Act

Extinguishment of
native title by the creation of other interests in land, while obviously
discriminatory in most instances, is not prohibited by the NTA. Rather,
the NTA authorises States and Territories to confirm the effect of the
creation of a vast range of tenures that extinguish native title in a
discriminatory way. The operation of the NTA in this way is discussed
in chapter 2. The question arises whether the mechanisms under the NTA
by which the extinguishment of native title is either validated, confirmed
or simply allowed to operate, are discriminatory according to the principles
outlined above.

From the outset it
should be noted that this question will only ever be answered hypothetically
because of the NTA’s immunity to discrimination law. As previously
explained [34] the only relevance of the RDA to the
NTA is to determine whether and in what way the validation provisions
might apply. Otherwise the NTA is rendered immune from discrimination
law.

Yet, despite this
immunity, the principles of discrimination outlined above, and the illustration
in Miriuwung Gajerrong on how these principles are applied to State
and Territory laws, provide a sound basis on which to determine whether
the NTA meets the standards of non-discrimination under the RDA. Failure
by the Federal Government to abide by the standards of non-discrimination
which it applies, through the RDA, to State and Territory legislation
puts into question the moral integrity of this political entity. To many
people this is a serious concern.

Inconsistency between
the RDA and the NTA is important for another reason. If the inconsistency
between the NTA and RDA is substantial it affects the constitutional basis
of the RDA itself. That is because inconsistency between the RDA and NTA
results in an implied repeal of the RDA to the extent of the inconsistency.
If, as a result of this repeal, the RDA can no longer be said to be consistent
with or an implementation of ICERD then the constitutional basis of the
RDA under the external affairs power is put into question.

The previous chapter
on extinguishment outlines the mechanisms by which the NTA controls the
protection and extinguishment of native title. A summary of these mechanisms
is provided in Annexure 3.

The two possible
bases for a finding of discrimination in relation to the NTA are:

(a) The NTA provides
for the extinguishment or impairment of native title in respect of a
range of tenures, and either the conditions by which native title is
extinguished are different to the conditions on which other titles are
extinguished or no title other than native title is extinguished. In
relation to the former category, the question is whether provision is
made for other titleholders to receive compensation but no provision
is made for compensation for native titleholders (see principle 5 on
page 75).

(b) The NTA fails
to limit the discriminatory extinguishment of native title resulting
from the creation of tenures other than those specified in the NTA,
even though mechanisms are available to control this at a legislative
level.

In relation to (a)
above, the mechanism by which the NTA prescribes the extinguishment or
impairment of native title is by providing that the tenures created under
State and Territory legislation or executive acts are valid and then assigning
to the creation of these tenures an extinguishing or impairing effect
on native title. The tenures that result in the extinguishment and impairment
of native title under the validation and confirmation provisions are set
out in the Annexure 3 Summary of the validation and confirmation of
extinguishment provisions in the Native Title Act
. The tenures the
subject of this process must be created before or within specified dates.
These prescribed dates are also set out in Annexure 3 where it can be
seen that the latest cut off date for the prescription of extinguishment
is where tenures are created before 6 December 1996. The NTA then authorises
States and Territories to enact complementary legislation providing for
the extinguishment or impairment of native title in relation to tenures
created under the relevant State or Territory law.

The extinguishment
and impairment of property rights arising out of the validation and confirmation
provisions affects native title rights and interests only. There is limited
provision for compensation as a result of the extinguishment described
above. [35] Discrimination of this type comes within
the second category of discrimination set out in principle 12 above [36]
and results in the invalidity of the legislation perpetrating the discrimination.

The Government’s
response to the charge that the extinguishment or impairment of native
title under the validation and confirmation provisions of the NTA is discriminatory
was extensively aired in the majority’s report in the Sixteenth Report
of the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund (‘PJC’). [37]
The Government’s arguments are directed to its understanding of international
law standards rather than the standards of the RDA itself. This distinction
is discussed below. However there are some aspects of their argument that
are relevant to the domestic standards of discrimination when applied
to the operation of the confirmation provisions.

The Government’s
primary argument is that, because the confirmation provisions are merely
a codification of common law standards, the NTA does not perform any independent
discriminatory operation. [38] Therefore the provisions
are not in breach of the RDA. That the confirmation provisions are consistent
with the way in which native title is extinguished and impaired under
the common law test is certainly bolstered by Miriuwung Gajerrong.
The High Court was clear that where there is any inconsistency between
the rights and interests of non-Indigenous titles and native title, native
title is permanently extinguished to that extent and is not suspended.
The confirmation provisions are consistent with this finding.

My first response
to the Government’s argument is that it is irrelevant that the discriminatory
operation of the NTA to extinguish and impair native title reflects the
discrimination contained in the common law test of extinguishment. Section
10 of the RDA seeks to determine whether laws are discriminatory. That
the discriminatory effect of the law in question derives from or reflects
the common law does not alter the fact that the law is discriminatory
under the RDA. In fact, in relation to native title, the RDA enhances
and provides further protection to the property rights held by native
titleholders under common law so as to secure the same enjoyment of native
title as that enjoyed by other titleholders.

This approach to
the RDA is supported by the High Court’s decision in the Native
Title Act Case
. In that case, the Western Australian Government argued
that their legislation was not discriminatory because it was consistent
with the extinguishment of native title at common law. The High Court
said:

At common law...native
title can be extinguished or impaired by a valid exercise or sovereign
power inconsistent with the continued enjoyment or unimpaired enjoyment
of native title. But the Racial Discrimination Act is superimposed
on the common law and it enhances the enjoyment of those human rights
(earlier mentioned) which affect native title so that Aboriginal holders
are secure in the possession and enjoyment of native title to the same
extent as the holders of other forms of title are secure in the possession
and enjoyment of those titles. The question is whether the WA Act attempts
to diminish that security to the comparative disadvantage of the Aborigines
on whom s7 rights are conferred.

…Those provisions
[of the WA Act] may be consistent with the common law relating to native
title but we are concerned with their consistency with s 10(1) of the
Racial Discrimination Act. [39]

The High Court in
Miriuwung Gajerrong makes it clear that the discrimination of native
title under the common law is discriminatory. The fact that the NTA enshrines
in legislation the vulnerability of native title to extinguishment at
common law does not exempt it from the RDA.

My second response
to the Commonwealth Government’s argument that the NTA is merely
a reflection of the common law and thus not discriminatory in its own
right, is that it denies the primacy that the High Court gave to the NTA
in the Miriuwung Gajerrong and Wilson v Anderson [40]
decisions. The Court made it very clear that the primary source for determining
the extent to which the law protects and extinguishes native title is
the NTA. The legislative control over the protection and extinguishment
of native title occurs through section 10 of the NTA which states that
native title is recognised and protected in accordance with the NTA, and
section 11(1) which proscribes extinguishment that is contrary to the
NTA. Far from the NTA merely reflecting the common law position, the Court
pointed out how the common law test of inconsistency was based on the
distinction between complete and partial extinguishment in the confirmation
provisions themselves [41] (see page 55 for further
discussion of this point). On this approach, the common law test for the
extinguishment of native title is a reflection of the NTA rather than
the other way round.

A second argument
put by the Government that the NTA is not discriminatory is that native
title’s vulnerability to extinguishment does not emanate from the
NTA but from the unique and inherent characteristics of the property right
itself. Native title has different characteristics to other forms of title
and derives from a different source. Consequently, it is argued, it can
be treated differently from those other forms of title without offending
the RDA. [42]

This argument was
definitively rejected by the majority of the High Court in Miriuwung Gajerrong:

Only if there were
some basis for distinguishing between different types of ownership of
property or different types of inheritance might it be correct to say,
in the context of s 10(1) of the RDA, that to deprive the people of
a particular race of a particular species of property or a particular
form of inheritance not enjoyed by persons of another race is not to
deprive them of a right enjoyed by person of that other race. No basis
for such a distinction is apparent in the text of the Convention [ICERD].
Nor is any suggested by the provisions of the RDA.

Because no basis
is suggested in the Convention or in the RDA for distinguishing between
different types of property and inheritance rights, the RDA must be
taken to proceed on the basis that different characteristics attaching
to the ownership of inheritance of property by persons of a particular
race are irrelevant to the question whether the right of persons of
that race to own or inherit property is a right of the same kind as
the right to own or inherit property enjoyed by person of another race.
In this respect the RDA operates in a manner not unlike most other anti-discrimination
legislation which proceeds by reference of an unexpressed declaration
that a particular characteristic is irrelevant for the purposes of that
legislation.

…As has been
pointed out…the Court has rejected the argument that native title
can be treated differently from other forms of title because native
title has different characteristics from those other forms of title
and derives from a different source. This conclusion about the operation
of the RDA should not now be revisited. [43]

The Court’s
rejection of the argument that, under the RDA, native titleholders can
be deprived of their right to property because of the different characteristics
of their title, was based on the nature of the rights that the RDA protects.
These are human rights defined under ICERD. They are not the legal rights
or interests defined by the common law recognition of native title.

A third and related
argument put by the Government, in response to the proposition that the
NTA breaches the standards of non-discrimination contained in the RDA,
is that the extinguishment that the validation and confirmation provisions
prescribe has already occurred at common law before the NTA was implemented.
[44] This argument is largely dealt with above. As
indicated, the RDA focuses on the way in which legislation operates to
secure the enjoyment of rights. If native title is extinguished prior
to the enactment of the NTA this does not exempt the legislative confirmation
of this extinguishment from invalidation under the RDA.

A further point may
be made about this argument and the assumptions on which it rests. The
recognition of native title as a pre-existing right in the Mabo (No
2)
[45] decision has required the courts to reinterpret
the history of land tenure in Australia with a new element inserted into
it, the continuing relationship of Indigenous people to their land. Finding
that this new element has been extinguished is not just affirming history,
it is recreating it. It was open to the courts to recreate a different
history; that the relationship of Indigenous people to their land continues
to the present day and is not extinguished but rather suspended by the
creation of new interests in land. That has not occurred. Yet it is still
open to the Government to lay a different foundation for present and future
generations of Indigenous and non-Indigenous people based on the equal
enjoyment of rights to land. The failure of the Government to provide
this foundation in the NTA returns me to the second basis on which the
NTA might be found to breach the RDA: the failure of the NTA to limit
the discriminatory extinguishment of native title resulting from the creation
of tenures other than those specified in the NTA.

It is clear that
the RDA does not require governments to proscribe the extinguishing effect
of the common law. The RDA only captures the doing of activities (pursuant
to section 9) or the enactment of laws (pursuant to section 10) that have
a discriminatory effect. The impetus for governments to redress historical
dispossession or nullify the effect of past discriminatory laws comes,
not from domestic law, but from international human rights law.

Extinguishment
of Native Title at International Law

The RDA, while consistent
with ICERD, is not a complete response to a state’s international
obligation to guarantee racial equality. The focus of the RDA is on acts
which impair the equal enjoyment of human rights, i.e. discriminatory
acts. Section 10 is directed to the lack of enjoyment of a right arising
by reason of a law whose purpose or effect is to create racial discrimination.
[46] It does not address the state’s broader obligation
under ICERD to achieve equality.

The source of this
broader obligation at international law in relation to Indigenous people
is ICERD itself and the interpretation given to a state’s obligations
under this treaty. The Committee on the Elimination of Racial Discrimination
(‘CERD’) has established clear standards to guide a state’s
policies and legislation in respect of Indigenous people so that they
are consistent with the state’s obligations under ICERD to achieve
equality. CERD’s General Recommendation 23 [47]
requires States to ensure that the unique cultural characteristics of
Indigenous people are maintained and protected, as well as ensuring conditions
pertaining to their economic and social development are satisfied. [48]
It provides that States will:

  • recognise and
    respect indigenous distinct culture, history and language and way of
    life as an enrichment of the State’s cultural identity and to promote
    its preservation;

  • ensure that members
    of indigenous peoples are free and equal in dignity and rights and free
    from any discrimination, in particular that based on indigenous origin
    or identity;

  • provide indigenous
    peoples with conditions allowing for a sustainable economic and social
    development compatible with their cultural characteristics;

  • ensure that no
    decisions directly relating to the rights and interests of indigenous
    peoples are taken without their informed consent;

  • ensure that indigenous
    communities can exercise their rights to practise and revitalise their
    cultural traditions and customs, to preserve and practise their languages;
    and

  • recognise and
    protect the rights of indigenous peoples to own, develop, control and
    use their communal lands and territories and resources and, where they
    have been deprived of their lands and territories traditionally used
    or otherwise inhabited or used without their free and informed consent,
    to take steps to return these land and territories. Only where this
    is for factual reasons not possible, the right to restitution should
    be substituted by the right to just, fair and prompt compensation. Such
    compensation should as far as possible take the form of lands and territories.
    [49]

In addition, Article
5(d) of ICERD specifies obligations to prohibit and to eliminate racial
discrimination and to guarantee the right of everyone without distinction
as to race, colour, or national or ethnic origin, to equality before the
law, including in the enjoyment of, inter alia, the right to own property
alone as well as in association with others; [50] and
the right to freedom of religion. [51]

Finally, Article
2 of ICERD requires a state party to ICERD to take effective measures
to nullify laws which have the effect of creating or perpetuating racial
discrimination.

The international
law obligation to achieve equality can be applied to both the recognition
and extinguishment of native title. The first step in the recognition
of Indigenous rights to land in Australian law was taken by the High Court
in the Mabo (No 2) decision in 1992. Successive Australian
governments, by failing to nullify the racially discriminatory operation
of terra nullius, have been in breach of their international obligations
since becoming a signatory to ICERD in 1975. In overturning terra nullius,
the High Court commented that the discriminatory doctrine of terra nullius
was contrary to international standards, the fundamental values of the
common law, and the contemporary values of the Australian people.

Subsequently the
NTA has failed to nullify, in accordance with Article 2 of ICERD, the
operation of State and Territory laws that have a discriminatory operation
in the way in which they extinguish native title. As discussed earlier
it is open to the Government to use the mechanisms of validity and invalidity
to proscribe these laws. In this way the NTA could limit extinguishment
to specific tenures only, or to current titles. Instead the NTA allows
discriminatory State and Territory laws to have full effect, confirming
and validating them in a vast range of tenures.

Comparing
the Domestic and International Standard of Equality

There is no domestic
mechanism to implement the international obligation on States to achieve
equality. Even if the NTA were subject to the operation of the RDA, the
failure of the Commonwealth to prohibit racially discriminatory laws under
the NTA would not come within its purview.

As indicated, the
focus of the RDA is on laws which differentiate on the basis of race in
order to limit the equal enjoyment of rights. As a result there is a limited
capacity within the RDA to distinguish between these types of laws and
laws which differentiate on the basis of race in order to achieve the
equal enjoyment of rights. The only category available under the RDA is
that defined in s8 as special measures. This category does not accurately
describe laws which seek to recognise and give equal protection to cultural
differences within our society in accordance with our international law
obligation to achieve equality.

This point can be
illustrated in the decision of the High Court in Gerhardy v Brown.
The law alleged to be discriminatory was one that restricted access to
land vested in Pitjantjatjara people under land rights legislation to
those people. The Court found that this law fettered the enjoyment of
non-Pitjantjatjara people to the human right to freedom of movement and
was consequently a breach of s10 of the RDA. Justice Mason identified
the discriminatory aspect of the legislation ‘because eligibility
to enjoy the rights which the statute confers depends on the manner described
on membership of the Pitjantjatjara people’. [52]

The Court then found
that the provision restricting access was a special measure under s8 of
the RDA in that it was taken for the sole purpose of securing adequate
advancement of a racial group as set out in Article 1(4) of ICERD. Consequently,
it was an exception to the discrimination found in s10 of the RDA which
did not then apply to invalidate the provision.

The decision contrasts
with Mabo (No 2) and the recognition of Indigenous people’s
inherent right to land. Thus, even though native title is a form of title
that only Indigenous people can enjoy, legislation that ensures the equal
enjoyment of this property right by Indigenous people is not discriminatory.
Indeed, contrary to Justice Mason’s concern that the eligibility
of the group enjoying the right is restricted to one racial group, it
is because native title characteristically is held by members of a particular
race that interference with the enjoyment of native title is capable of
amounting to discrimination on the basis of race, colour or national or
ethnic origin. [53] The extinguishment of a right or
interest emanating from native title, such as a right to control access,
will itself be discriminatory if other titleholders are not deprived in
the same way.

As stated, the RDA
did not compel the Court in Mabo (No 2) to give recognition to
native title. This stemmed from the international law standard of equality.
But, once recognised, the RDA did operate to ensure that these inherent
rights were given the same protection that non-Indigenous people enjoyed
in respect of their property rights. Nor was this recognition a special
measure, taken by government in a spirit of beneficence to redress the
injustice of historical dispossession or to compensate for a lack of rights.
It is recognition of the traditional rights of Indigenous people.

Applying this approach
to the factual situation before the High Court in Gerhardy v Brown,
the provision limiting access to Pitjantjatjara land would not be identified
as discriminatory because it treats non-Pitjantjatjara people differently
to Pitjantjatjara people, but non-discriminatory because it seeks to recognise
and secure equal enjoyment for Pitjantjatjara people of the human right
to own and inherit property. That is, it seeks to achieve equality. In
my view this latter approach is consistent with a state’s international
law obligation not only to proscribe laws that limit the enjoyment of
rights but also to promote laws that seek to achieve equality. On this
view, differential treatment on the basis of race that seeks to achieve
equality is not discriminatory.

This approach to
differential treatment and equality can be distinguished from that taken
by the Commonwealth in their submission to the Inquiry by the PJC into
the CERD decision on native title. [54] Some aspects
of the Commonwealth’s approach have been discussed above. I also
discuss it in my Native Title Report 2000. [55]
In summary, the Government’s approach seeks to include differential
treatment that although invidious to Indigenous people, can be consistent
with international law obligations if the distinctions are relevant or
justifiable and adapted to the distinctive characteristics of the group
or individual. [56]

Even though the High
Court had rejected, in the Native Title Act Case, the argument
that because native title has different characteristics from other forms
of title and derives from a different source, native title holders can
be deprived of their property rights, this argument was recouched as part
of an international law notion of substantive equality.

As demonstrated in
my Native Title Report 2000 the differential treatment of Indigenous
people in the validation and confirmation provisions was justified under
this approach by reference to notions such as certainty, the unlikelihood
of real harm occurring, balancing the interests of stakeholders and confirming
the common law. They were not justified by reference to the achievement
or enjoyment of equality.

Under the Commonwealth’s
analysis of its international law obligations, differential treatment
that results in the impairment of the enjoyment of human rights is allowed,
so long as it can be justified and is legitimate. This approach sets the
standard of equality and non-discrimination under ICERD lower than that
set under domestic law. In my view such a proposition is patently absurd
particularly since the RDA firmly fastens the rights it protects to the
human rights defined under the treaty from which it emanates; ICERD.

The Commonwealth’s
proposition, that invidious differential treatment is allowed under a
substantive approach to equality at international law, provides a warning
to those monitoring laws which affect Indigenous people’s human rights.
While the formal equality plus special measures approach to equality demonstrated
in Gerhardy v Brown can be seen to reflect a notion of equality
which seeks to bring Aboriginal people up to the same level as and assimilate
with non-Indigenous people, it at least ensures that invidious differential
treatment is outlawed. The special measures category can then deal with
any non-discriminatory differential treatment even if this treatment doesn’t
quite fit the description of a special measure. Seeking to move beyond
this approach too quickly to include equal recognition of inherent rights,
while consistent with developments in international human rights law,
carries the danger that governments unsympathetic to these developments
will exploit these categories of difference to justify treatment that
on any other view undermines the fundamental and universal human rights
of racial equality and non-discrimination.
In applying the domestic and international standard of equality, it is
clear that both the statutory framework for native title and the common
law operate in a discriminatory manner.

The prioritising
of rights under the inconsistency tests, whereby Indigenous interests
are either extinguished or partially extinguished wherever an inconsistency
occurs, is a discriminatory treatment of Indigenous property rights. This
discrimination is continued and entrenched in the NTA which not only prescribes
extinguishment but fails to proscribe common law extinguishment. Native
title, as it is framed within Australian law, will always give way to
non-Indigenous rights. This legal framework needs to change to allow the
human rights of Indigenous people to be equally enjoyed.


1
Western Australia v Ward & o’rs [2002] HCA 28 (8 August
2002) (‘Miriuwung Gajerrong’).

2
660 United Nations Treaty Series 195 (‘ICERD’) (Australia joined
1975).

3
Evoked against Australia in March 1999.

4
(1985) 159 CLR 70.

5
Mabo & ano’r v Queensland & ano’r (1989) 166
CLR 186.

6
(1995) 183 CLR 373 (‘Native Title Act Case’).

7
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [103].

8
ibid., at [115].

9
ibid., at [105].

10
ICERD, op.cit., art 5(d)(v).

11
ibid., art 5(d)(vi).

12
United Nations General Assembly resolution 217A (III), United Nations
document number (‘UN doc’) A/810 at 71, 10 December 1948.

13
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [116] & [119].

14
ibid., at [116].

15
ibid., at [106]; see also Gerhardy v Brown, op.cit., per Mason
J at 98.

16
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [107].

17
ibid., at [133].

18
Native Title Act Case, op.cit., per Mason CJ, Brennan, Deane, Toohey,
Gaudron & McHugh JJ at 437.

19
Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1 (Mabo
No 2
), per Toohey J at 214.

20
General laws guiding expropriation of property by Commonwealth, States
and Territories includes Lands Acquisition Act 1989 (Cwlth), Pt
VII; Land Acquisition (Just Terms Compensation) Act 1991 (NSW),
Pt 3; Land Acquisition and Compensation Act 1986 (Vic), Pt 3; Acquisition
of Land Act 1967
(Qld), Pt IV; Land Acquisition Act 1969 (SA),
Pt IV; Public Works Act 1902 (WA), Pt III; Lands Resumption
Act 1957
(Tas), Pt IV; Lands Acquisition Act 1978 (NT), Pt VII.

21
ICERD, op.cit., art 5(d)(v).

22
ibid., art 5(d)(vi).

23
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [116].

24
ibid., at [120]-[121].

25
Gerhardy v Brown, op.cit., per Mason J at 105.

26
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [108].

27
ibid., at [123].

28
Native Title Act Case, op cit., per Mason CJ, Brennan, Deane, Toohey,
Gaudron & McHugh JJ at 439.

29
See page 75.

30
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [313].

31
ibid. at [320].

32
ibid. at [321].

33
ibid. at [253].

34
Page 45, above.

35
See Limited Compensation for the Deprivation of Native Title Rights,
pages 69-71.

36
See page 77.

37
Parliamentary Joint Committee on Native Title and the Aboriginal and Torres
Strait Islander Land Fund, Consistency of the Native Title Amendment
Act 1998 with Australia’s international obligations under the Convention
on the Elimination of all Forms of Racial Discrimination
, Parliament
of the Commonwealth of Australia, Canberra, 2001 (‘PJC Report’),
pp 38-48.

38
ibid., at p 46.

39
Native Title Act Case, op cit., per Mason CJ, Brennan, Deane, Toohey,
Gaudron & McHugh JJ at 439.

40
Wilson v Anderson & o’rs [2002] HCA 29 (8 August 2002).

41
See s 23A of the NTA; Miriuwung Gajerrong, op.cit., per Gleeson
CJ, Gaudron, Gummow & Hayne JJ at [76].

42
PJC Report, op.cit., p9 at [3.10] and p11 at [3.17].

43
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [120]-[122].

44
PJC Report, op.cit., p47.

45
op.cit.

46
Gerhardy v Brown, op.cit., per Mason J at 99.

47
CERD, General Recommendation XXIII – Indigenous Peoples, (1997)
in Compilation Of General Comments And General Recommendations Adopted
By Human Rights Treaty Bodies
, UN doc HRI/GEN/1/Rev.5, 26 April 2001,
p192.

48
ibid. para’s 4-5.

49
ibid.

50
ICERD, op.cit., art 5(d)(v).

51
ibid., art5(d)(vii).

52
Gerhardy v Brown, op.cit., at 103.

53
Principle 1, at page 66 above.

54
Commonwealth Attorney-General’s Department, Submission to the
PJC Inquiry: Consistency of the Native Title Amendment Act 1998 with Australia’s
obligations under ICERD
, Submission 24.

55
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2000
, Human Rights and Equal Opportunity Commission,
Sydney 2001, pp 7-15.

56
ibid., p10.

19
March 2003.