International Review of Indigenous issues in 2000: Australia - 2. The fight against racism: Principles of non-discrimination and equality

International Review of Indigenous issues in 2000: Australia

2. The fight against racism: Principles of non-discrimination and equality

The Principle of Non-Discrimination

The international human rights norms against which practices of racism and discrimination against Indigenous people must be judged are the guarantees of equality before the law and racial non-discrimination. These norms are recognised in every major international human rights treaty, convention and declaration. They are recognised and protected in the following instruments to which Australia is a party.

  • International Covenant on Civil and Political Rights (ICCPR), Article 2 & 26;
  • International Covenant on the Elimination of All Forms of Racial Discrimination (CERD),
    Article 2;
  • Convention on the Rights of the Child, Article 2;
  • International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 2.

The principle of racial non-discrimination has also reached the status of customary international law [1]. More significantly, the prohibition of systemic racial discrimination has attained the highest status of international law, jus cogens. [2] Principles that have reached the status of jus cogens are 'peremptory norm(s) of international law from which no derogation is permitted.[3] The principle of racial non-discrimination thus exists independently of the obligations in instruments mentioned above, and cannot be displaced.

CERD defines racial discrimination in Article 1(1) in terms of its purpose or effect.

... 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.

The international definition of racial discrimination is generally considered to have two elements.

  • First, 'a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin' is required.
  • Second, the distinction based on race must nullify or impair '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.' This second element is generally taken to require that, to be considered discriminatory, any racially specific measure must be able to be characterised as detrimental to the racial group in question.

Thus it can be seen that the standard of equality protected at international law is a substantive equality standard. This substantive equality standard is recognised in the principles of equality and non-discrimination elaborated upon by treaty-based Committees and international courts and can be reduced to the following four key propositions. [4]

1. Equality does not necessarily mean treating everybody in an identical manner.

The promotion of equality does not necessitate the rejection of difference. In the decision of the International Court of Justice in the South West Africa Case, Judge Tanaka stated:

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. [5]

This passage identifies the salient features of the two legal models of equality - namely, formal and substantive equality.

A formal equality approach relies on the notion that all people should be treated identically regardless of such differences. However, an approach "which relies on the notion that all people should be treated the same, denies the differences which exist between individuals and promotes the idea that the state is a neutral entity free from systemic discrimination. In reality '[t]he fact that… Aborigines… have been subjected to appalling inequalities demonstrates that formal equality is compatible with the grossest injustice." [6]

A substantive equality model, such as that adopted by Judge Tanaka, takes into account 'individual, concrete circumstances'. It acknowledges that racially specific aspects of discrimination such as cultural difference, socio-economic disadvantage and historical subordination must be taken into account in order to redress inequality in fact.

The international legal approach to equality is one of substantive rather than formal equality. [7] The Human Rights Committee, which oversees the implementation of the ICCPR, has adopted a substantive equality approach to the meaning of non-discrimination. The Human Rights Committee has indicated that equality 'does not mean identical treatment in every instance', and that the Committee is concerned with 'problems of discrimination in fact' not just discrimination in law. [8]

2. A differentiation of treatment will not constitute discrimination if the criteria for its adoption is objective, reasonable and pursues a legitimate aim.

Differential treatment is permitted under the principle of equality so long as the purpose of the treatment is to achieve equality between racial groups.

The Human Rights Committee and the CERD Committee have indicated that there are two types of differential treatment that are permitted under the ICCPR and CERD. These are actions that constitute a legitimate differentiation of treatment ('reasonable differentiation'), and affirmative action ('special measures'). A differentiation of treatment does not necessarily have to be characterised as a special measure for it to be permissible:

[A] differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of Article 1, paragraph 4 (special measures)… In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable, disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin. [9]

Whether a differentiation of treatment is legitimate or not legitimate will depend upon the purpose of the differentiation. Oppressive distinctions for the purpose of justifying the reduction of rights are not legitimate. Differential treatment that aims to preserve minority cultures may be legitimate. Differential treatment is only legitimate if the distinction is 'appropriately adapted to the distinctive characteristics of the group or individual' and there is a reasonable, objective and proportionate nexus between the relevant difference and the Convention's objective to achieve equality between racial groups. As the Human rights Committee stated:

… not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. [10]

In Australia recently, the question of what constitutes permissible differential treatment under CERD was debated before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (the PJC). [11] This debate took place in the context of the PJC's Inquiry into the sustainability of the CERD Committee's decision on 18 March 1999 that the amended Native Title Act 1993 (Cth) (NTA) was in breach of Australia's onligations under CERD. The Australian government's interpretation of what constitutes permissible or legitimate differential treatment under CERD allowed for treatment that had a detrimental or invidious effect on Indigenous people. The PJC Report justified the invidious differential treatment of Indigenous people under the amended NTA on the following bases: [12]

  • the objectives for the amendments are legitimate in the circumstances;
  • the amendments are reasonable and not arbitrary
  • the amendments are designed to achieve a legitimate objective with little, or no, impact on native title;
  • the amendments deal with historical acts and developing law, or attempt to balance competing interests, and therefore a margin of appreciation is allowed [13]

The 'legitimacy' of the differential treatment of Indigenous people in the native title amendments were revealed in the PJC Report to be political considerations such as the provision of certainty [14] and 'balancing competing interests, [15] and not the achievement of the objectives of CERD.

3. Special measures, or affirmative action, are sometimes required in order to redress inequality and to secure, for the members of disadvantaged groups, full and equal enjoyment of their human rights.

Special measures are a further type of differential treatment that is not discriminatory but is intended to achieve the objective of CERD; the achievement of equality between racial groups. Where necessary to ensure the adequate development and protection of certain racial groups (or individuals belonging to such groups) states may be required to implement special measures.

Article 2(2) of CERD requires;

State parties shall, when circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Article 1(4) of CERD also provides for special measures:

Special measures, taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they ere taken have been achieved.

Section 8 of Australia's domestic legislation, the Racial Discrimination Act 1975 directly incorporates article 1(4) of CERD.

While in some circumstances they may be required, the features of special measures are strictly defined. Their main features, as outlined in Article 1(4) of CERD, are that special measures must be for the sole purpose of securing the advancement of a particular group; such advancement must be necessary; it must not lead to the maintenance of separate rights for different racial groups; and they shall not be continued once the objective of the measure has been achieved.

Article 2(1) of the International Covenant on Economic, Social and Cultural Rights provides another basis at international law for governments to take special measures where the enjoyment of human rights is impaired:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximisation of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

These paragraphs show that the aim of special measures is to achieve substantive equality and to ensure the equal enjoyment of rights. The rationale for allowing 'special measures' is that historical patterns of racism entrench disadvantage and more than the prohibition of racial discrimination is required to overcome the resulting racial inequality. [16]

Any attempt to redress Indigenous disadvantage through special measures must acknowledge that:

  • Indigenous disadvantage is the result of systemic discrimination;
  • The appropriate benchmark by which to measure progress is one of equality between Indigenous and non-Indigenous Australians;
  • The government is obligated to take sufficient steps (or special measures) to achieve such equality;
  • There must be adequate monitoring and evaluation of progress, including measuring effectiveness through benchmarking and standard setting; and
  • Real progress requires the effective participation of Indigenous people in decision making

4. Rights that recognise the distinct cultural identity of minority groups are consistent with and sometimes required by the notion of equality.

Specific rights that recognise the distinct cultural identity of minority groups are consistent with a substantive approach to equality. Indeed, it has largely been in the context of the protection of minority groups that the meaning of non-discrimination and equality has been elaborated.

The purpose of particular measures for the protection of minorities is to enable minorities to maintain basic characteristics that distinguish them from the majority of the population, and hence institute factual equality between members of the minority group and other individuals.

In 1935 the Permanent Court of International Justice produced an advisory opinion on Minority Schools in Albania in which they considered the aims of the Minorities Treaties adopted by the League of Nations at the end of the First World War. The Court found that the aim of the treaties was to secure for minorities the ability to live peaceably in society, while preserving their own characteristics. In order to do this, the following factors were required:

The first was to ensure that members of racial, religious or linguistic minorities should be placed in every respect on a footing of perfect equality with the other nationals of the State.

The second was to ensure for the minority elements suitable means for the preservation of their own characteristics and traditions…

These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority. [17]

Judge Tanaka in the South West Africa Case also commented that the protection of minority groups, as a relevant difference, would justify a differentiation in treatment:

a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not. [18]

Indigenous people, as a special kind of minority, have the right to maintain the basic characteristics that distinguish them from non-Indigenous people. The human rights treaty committee bodies have elaborated the requirements to enable Indigenous people to maintain their distinctive cultures. These requirements form part of states' obligations to guarantee equality and non-discrimination before the law.

The Committee on the Elimination of Racial Discrimination has confirmed that in their application to Indigenous peoples, the Convention's obligations require States inter alia to:

(a) 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;

(b) 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;

(c) provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

(d) ensure that no decisions directly relating to the rights and interests of Indigenous peoples are taken without their informed consent;

(e) ensure that Indigenous communities can exercise their rights to practise and revitalise their cultural traditions and customs, to preserve and practise their languages; and

(f) 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. [19]

The CERD Committee's General Recommendation on Indigenous Peoples includes the recommendation at (d) above that states ensure that no decisions directly relating to the rights and interests of Indigenous peoples are taken without their informed consent. Thus substantive equality is not just about equal outcomes for Indigenous people but requires the effective participation of Indigenous people in the process of determining such outcomes.

The Human Rights Committee has provided further guidance on the application of the equality standard under Article 27 of the ICCPR [20] to the situation of Indigenous peoples. In several cases considered by the Human Rights Committee under the First Optional Protocol to the ICCPR the Committee has established the following principles:

  • For it to be valid and not breach Article 27, a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole. [21]
  • The right of a member of a minority group to enjoy their own culture must be considered within the relevant socio-economic context. Economic activities may come within the ambit of Article 27 where they are an essential element of the culture of the group. [22]
  • In considering whether the economic activities of the minority group are being interfered with in such a way as to threaten the way of life and culture of the community, the Committee will take into account historical inequities in treatment. [23]
  • The types of economic activities of the minority group that are relevant are not limited to activities that support a traditional means of livelihood. They may be adapted to modern practices. [24]
  • A countervailing consideration will be the role of the State in encouraging development and economic activity. [25] In doing so, the State is under an obligation to ensure that such activity has, at most, only a 'limited impact on the way of life of persons belonging to a minority.' [26] Such a 'limited impact' would not necessarily amount to a 'denial' of the rights under Article 27. [27]
  • The Committee will consider whether the State has weighed up the interests of the complainant with the benefits of the proposed economic activity. Large scale activities, particularly involving the exploitation of natural resources, could constitute a violation of Article 27. [28]
  • In assessing activities in the light of Article 27, State parties must take into account the cumulative impact of past and current activities on the minority group in question. Whereas 'different activities in themselves may not constitute a violation of this Article, such activities, taken together, may erode the rights of (a group) to enjoy their own culture.' [29]
  • The Committee will consider whether the State has undertaken measures to ensure the 'effective participation' of members of minority communities in decisions that affect them. [30]

The CERD Committee recently highlighted the connection between ensuring compliance with the non-discrimination principle and ensuring the survival of the cultural identity of Indigenous peoples.

In many regions of the world Indigenous peoples have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardised. [31]

The Committee called on State Parties to take all appropriate means to combat and eliminate discrimination against Indigenous people, including by recognising and protecting their cultural identity.

Participation rights

The second set of international human rights standards relevant to Indigenous groups is those rights which require the participation of Indigenous people in decisions that affect them. These are enshrined in:

  • Article 1 of the ICCPR; and
  • Article 1 of the ICESCR. [32]

The broad principle underlying these rights is that of self-determination. Article 1 of the ICCPR and ICESCR states,

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

The right of self-determination has its origins in the process of decolonisation. It has generally been applied to effect a transfer of power from colonial powers who have existed as a minority of a population to a local majority. [33] However, based on the General Comments of both the CERD Committee and the Human Rights Committee, there is little doubt that self-determination is a right which Indigenous Peoples are entitled to exercise.

The CERD Committee strengthened the notion of political participation in its General Comment on Indigenous peoples. Noting that for Indigenous people, culture, historical identity and the right to their lands and resources have been, and remain, jeopardised through histories of colonisation and exploitation, the Committee has called on States parties to (among other things)

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. [34]

The Human Rights Committee also elaborated on this issue of political participation in its General Comment on Article 27 of the ICCPR in relation to minority group or cultural rights. In its discussion of the need to protect the particular cultural relationship of minority groups to the use of land resources (particularly in the case of Indigenous peoples) the Committee stated that the enjoyment of culture may require:

measures to ensure the effective participation of members of minority communities in decisions which affect them. [35]

Both these Commmittees recently made observations about Australia's failure to accord Indigenous people their right to effective participation in the decisions that affect them. 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. [36]

On 28 July 2000 the Human Rights Committee also made concluding observations, specifically on the rights of Indigenous people under the principle of self-determination (Article 1 of ICCPR) to control their land and their resources.

9. 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.

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 (article 1, para 2). [37]

The application of the principle of self-determination to Indigenous Peoples 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, which acknowledge and assign rights to only two entities: the state and the individual. [38] The foundation of international law in the nation state whose social organisations are characterised by exclusive territory and centralised and hierarchical authority, means that Indigenous people, organised through tribal or kinship ties, decentralised political structures and overlapping territorial spheres, will never benefit from the international law of nations and its characterisation of states as 'free, independent and equal':

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. [39]

This approach to international law 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. [40]

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. [41]

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. [42]

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, [43] 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'. [44]

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 Australian Government's recent review of international treaties can be understood as a response to the challenge that human rights obligations, and in particular the right to self-determination pose 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.


1 McKean, W., Equality and Discrimination under International Law, Clarendon Press, Oxford, 1983, pp271-277.
2 Brownlie, I., Principles of Public International Law, 3rd edition, Clarendon Press, Oxford, 1979, pp. 596-598.
3 Triggs, G., 'Australia's Indigenous Peoples: Evolving International Law', Unpublished Article, 1998, p3. See also Harris, DJ., Cases and Materials on International Law, 4th edition, Sweet and Maxwell, London, 1991, pp790-792.
4 S Pritchard 'Special Measures' in Race Discrimination Commissioner Racial Discrimination Act
1975
- A Review, Human Rights and Equal Opportunity Commission, Sydney, 1995, pp189-190. See also Bayefsky, A., 'The Principle of Equality or Non-Discrimination in international Law' (1990) 11 Human Rights Law Journal 1, p27.
5 South West Africa Case (Second Phase) {1966} ICJ Rep 6, pp303-304, p305.
6 Race Discrimination Commissioner, Alcohol Report, HREOC, Sydney, p25 quoting Thornton, M., The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford University Press, Melbourne 1990, p16.
7 W McKean, "The Meaning of Discrimination in International and Municipal Law" (1970) 44 British Yearbook of International Law 178 at 185-186; G Triggs, "Australia's Indigenous Peoples and International Law" (1999) 23 Melbourne University Law Review 372 at 379-381; also Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31(1986) paras 150, 158.
8 Human Rights Committee, General Comment XVIII, Non-discrimination (1989), paras 8, 9, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1, p26.
9 Committee on the Elimination of Racial Discrimination, General Recommendation XIV on Article 1 (1993), para 2, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, ibid. at 67. (Bold added). See also: Human Rights Committee, General Comment XVIII, Non-discrimination (1989), paras 10 & 13, ibid. p26.
10 Human Rights Committee, General Comment XVIII, Non-discrimination (1989), para 13
11 Note, this Committee is dominated by government members.
12 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: on the sustainability of the decision of the CERD Committee on 18 March 1999, June 2000 (the PJC Report), pp37-58.
13 Ibid, p37
14 Ibid, pp39, 45.
15 Ibid, p49
16 Race Discrimination Commissioner, The CDEP Scheme and Racial Discrimination, HREOC, Sydney, 1997, p40.
17 Minority Schools in Albania (1935) OCIJ Ser A/B No 64, p17; See the discussion of the case in Pritchard, S., 'Special measures', op.cit., p185.
18 South West Africa Case (Second Phase), Op.cit.
19 Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous Peoples, adopted 18 August 1997, UN Doc CERD/C/51/Misc 13/Rev 4 (1997) paras 4-5.
20 The First Optional Protocol, which has been acceded to by Australia, allows people within nations to bring complaints before the Human Rights Committee alleging breaches of provisions of the ICCPR by the State.
21 Kitok v. Sweden, Communication No. 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), para 9.2.
22 Ibid, para 9.3.
23 Chief Ominayak and the Lubicon Lake Cree Band v Canada. Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990).
24 Lansman et al v Finland No. 1 (24 March 1994) CCPR/C/49/D/511/1992.
Ibid, para 9.4.
25 Ibid.
26 Ibid
27 In this case the Committee found that the economic activity proposed was of limited impact and did not operate as a denial of the cultural rights of the Sami.
28 Lansman et al v Finland No. 2, (25 November 1996) CCPR/C/58/D/671/1995, paras 10.5, 10.7.
29 Ibid, para 10.7.
30 Ibid.
31 CERD Committee, General Recommendation XXIII (51), Op. cit., para 3.
32 See also Article 1 of the Charter of the United Nations and the Declaration on the Principles of International Law Concerning Friendly Relations and Co-Operation Among States, United Nations General Assembly 2625 (XXV), 24 October 1970, 'The principle of equal rights and self-determination of peoples'.
33 For an overview of the general legal principles of self-determination see Steiner, H., and Alston, P., International Human Rights In Context: Law, Politics, Morality, Clarendon Press, Oxford, 1996, pp972-1020.
34 Committee on the Elimination of Racial Discrimination General Recommendation XXIII (51) concerning Indigenous Peoples, op. Cit., para 5.
35 Human Rights Committee General Comment 23 on the rights of minorities (Article 27) op.cit, para 7.
36 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. para 9. (Herein 'CERD Committee, Concluding Observations 2000')
37 Human Rights Committee, Consideration of Reports submitted under Article 40 - Concluding Observations of the Human Rights Committee - Australia, (69th session), 28th July 2000, UN Doc CCPR/CO/69/AUS, para 9 (Herein Human Rights Committee, Concluding Observations)
38 Anaya, S. J.,Indigenous Peoples in International Law, Oxford University Press, New York, 1996, p13.
39 Ibid, p15.
40 Daes, Erica-Irene, Final Report Indigenous Peoples and Their Relationship to Land, UN Doc E/CN.4/Sub.2/2000/25., para 21.
41 Daes, op cit, para 26.
42 Anaya, op cit, p79.
43 Advisory Opinion on Western Sahara [Western Sahara Case] [1975] ICJR p12
44 Anaya, op cit, p84.

Last updated 7 October 2003