Australian Indigenous Law Reporter
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On 11 August 1998, the expert Committee on the Elimination of Racial Discrimination requested that the Australian Government explain alleged breaches of the Convention on the Elimination of All Forms of Racial Discrimination under its urgent action and early warning procedure.[1] The amendments to the Native Title Act 1993 (Cth), changes to land rights policy, and the extended delay in reappointing an Aboriginal and Torres Strait Islander Social Justice Commissioner on the Human Rights and Equal Opportunity Commission had been brought to the attention of the Committee as matters of urgency.
Australia is one of 155 States parties to the Convention and is obliged to submit periodic reports and, when requested, to supply additional information under the early warning and urgent action procedures. In response to the request for additional information under this procedure, the Australian Government responded with a 16 page report on 15 January 1999. The CERD Committee convened on 12 March and again on 16 August 1999 to scrutinise the Australian Government.
The close attention to Australia was partly due to the fact that Australian Government had only recently submitted outstanding periodic reports to CERD, which fell due in 1994, 1996 and 1998.
The CERD Committee first examined the comments of the Australian Government in response to alleged breaches of the convention on 12 March. The Committee expressed concern 'over the compatibility of the party’s international obligations' under the International Convention on the Elimination of All Forms of Racial Discrimination as well noting with concern Australia’s proposed changes to the structure of the national Human Rights Commission.[2]
On 5 July, the Australian Government responded to the CERD committee's March Decision on Australia with the comments reproduced below.
On 16 August, the CERD committee reconvened and noted the failure of the Australian Government to act upon the Committee’s decision in March. In the 16 August Draft Decision reproduced below,[3] the Committee reaffirmed the decision of March 1999 and noted the comments of the Australian Government contained in its report tabled in January, which will be included in the Committee’s annual report for 1999 to the General Assembly.
Australia must again appear before the CERD Committee in March 2000, when the Committee will continue its consideration of the matter, along with the tenth, eleventh and twelfth periodic reports of the Australia. At this meeting, the CERD committee will expand its focus of attention to consider other policies and programmes of the Government which affect Aboriginal and Torres Strait Islander peoples.
On 11 August 1998, the Committee requested the Government of Australia to provide it with information on changes recently projected or introduced to the 1993 Native Title Act, on any changes of policy as to Aboriginal land rights, and on the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The Committee acted under the Article 9, early warning measures and urgent action procedures, of the Convention.
The committee made its views known on these matters on 18 March 1999. The Australian Government expressed its concern with elements of those views. In doing so, the Australian Government acknowledges the recognition by the Committee that the Government co-operated fully with the Committee, including by providing a detailed written submission and sending one of the Government's most senior legal experts on indigenous issues to appear before the Committee.
However, the Australian Government was disappointed that the written views of the Committee did not record the substance of the Government's submission and evidence on key issues reported on by the Committee. The following comments seek to redress what the Australian Government considers to have been the unfortunate omission of relevant material from the Committee's report that, by its absence, supports a point of view on the issues before the Committee which the Australian Government contests.
As a general point, the Australian Government does not believe that past discrimination against Australia's indigenous peoples in relation to their rights to land has endured. Indigenous land rights legislation operates in various States and Territories of Australia. The Australian High Court has recognised the native title rights of Australia's indigenous people to their lands (in the Mabo (1992) and Wik (1996) decisions), and the Australian Parliament has enacted laws to protect those rights (in the Native Title Act 1993 in response to the Mabo decision, as amended in 1998 in response to the Wik decision).
The Committee raised concerns about the amendments made to the Native Title Act in 1998. The Australian Government notes the views of the Committee, but does not agree with them. The High Court decision in Wik that native title could exist on pastoral lease land required the Government to reconsider some of the provisions of the original Act which did not accommodate this possibility, and to deal with significant uncertainty as to the operation of the Act. This reconsideration was not arbitrary. Rather, the amendments proposed by the Government were a considered response to address specific situations, in particular where native title rights coexist with the rights of others. The Government did not accede to requests from significant sections of the community that it seek to extinguish native title rights on pastoral lease land. It rejected this option for a number of reasons including its obligations under the Convention.
The issues raised by native title in Australia are complex. It is necessary to look at the Mabo and Wik decisions, and the overall substantive effect of the Native Title Act, and other relevant legislation and programmes, to consider the balance struck between native title rights and the rights of others. As the Committee acknowledges, the original Native Title Act balanced the rights of indigenous and non-indigenous title holders; the Australian Government believes that the amended Act continues to maintain an appropriate balance between the rights of native title holders and the rights of others.
The Committee noted in particular four areas of concern in the 1998 Amendment Act.
The validation provisions inserted by the 1998 Amendment Act are much more limited in effect than the validation provisions in the Act passed in 1993, and in the Government's view were required by the Wik decision. The new provisions essentially allow for the validation of mining interests granted over pastoral lease land before the Wik decision, when it was assumed that native title could not exist on pastoral lease land. The validation of such mining interests does not extinguish native title. Compensation is payable for any effect on native title, and notification of the mining interests granted in the period is required to assist compensation claims.
The confirmation regime seeks to provide a much greater level of certainty in relation to the areas of land which are not subject to native title, and therefore the areas of land which can be claimed. It seeks to avoid lengthy, costly and adversarial litigation by allowing States and Territories to clarify where native title has in the past been extinguished. The confirmation regime seeks to implement the common law position, expounded by the High Court in Mabo and Wik. The confirmation of extinguishment provisions only apply to about 21 per cent of Australia, leaving 79 per cent of Australia able to be claimed by native title holders.
The High Court in its decisions, the original Act, and the 1998 amendments, recognised that past actions by Governments could not be undone. However, the Australian Government recognises that present and future policies can seek to remedy the effects of such past actions, and a range of policies, including provisions of the Native Title Act, seek to do so.
Even where the confirmation provisions apply, the Amendment Act allows native title claims to be made in certain circumstances, including where other persons no longer have an interest in the land. The Parliament has established and funds the Indigenous Land Corporation the Aboriginal and Torres Strait Islander Land Fund, which enables indigenous people, in particular those who are unable to claim native title, to purchase land by agreement with the current owner. The Land Fund will grow to a guaranteed capital base of $A1.3 billion to enable such purchases to be made. In addition, indigenous land rights legislation exists in several States and Territories of Australia, and this enables indigenous people who may not have native title rights to obtain land. These measures are designed to remedy historical dispossession and facilitate restitution.
The pastoral lease provisions seek to strike an appropriate balance between the rights of native title holders and the rights of pastoral lessees on pastoral lease land. On the basis of the Wik decision these two interests can coexist, but the rights of the pastoral lessee prevail. This is confirmed by the 1998 Amendment Act which sets down some basic rules in relation to what things pastoralists can do, and what things pastoralists cannot do, where native title exists. The activities which pastoral lessees are able to undertake cannot extinguish native title. These amendments in fact prohibit pastoralists obtaining an upgrade of their lease to freehold or any exclusive tenure.
The Act also includes significantly expanded provisions in relation to agreements between native title holders and others, including pastoralists. The Government hopes that these provisions will be used by native title holders and pastoralists to establish agreed arrangements for coexistence on pastoral lease land.
When the right to negotiate was developed, the assumption was that native title would exist principally on vacant Crown land in Australia and would therefore amount to 'ownership' rights in relation to that land. On that assumption, and reflecting the special relationship of native title holders (and also claimants) to their land, the right to negotiate set out certain procedures to be followed before mining grants could be made or some compulsory acquisition of land by Government undertaken. The Government's position is that the full right to negotiate is not appropriate in relation to pastoral lease land that native title holders share with pastoralists, and that there should be more parity between the rights of native title holders and the rights of pastoralists.
The 1998 Amendment Act therefore allows State and Territory Parliaments to put in place alternative regimes to the right to negotiate on pastoral lease land. Such regimes must meet specified criteria, which recognise the particular interests of native title holders and require consultation and a right to object to the mining or acquisition. These regimes are also subject to Commonwealth Parliamentary scrutiny.
In addition to these four areas, the Native Title Act, as amended in 1998:
Therefore, the Australian Government believes there is no breach of the Convention by the Native Title Act.
Australia cannot see any basis for the suggestion that Article 5(c) of the Convention was not complied with in relation to the 1998 Amendment Act. Indigenous Australians have the same high level of political rights as all other Australians. There were significant consultation between the Government and indigenous Australians in relation to the 1998 Act, including several with the Prime Minister, as there were with other interests. The 1998 Amendment Act was made by the democratically elected Parliament of Australia in a prolonged and open process. During detailed consideration of the 1998 amending legislation by the Parliament, significant amendments were made that addressed many indigenous concerns.
The Government of Australia cannot simply suspend the implementation of the 1998 Act, as suggested by the Committee. The Act was made by the Parliament of Australia, and operates as the law of Australia, to which the Government is subject. The constitutional validity of the Act can be challenged in Australian courts, though no such action has been taken yet, and its operation will be determined by those courts.
As the Committee was advised, Dr William Jonas has been appointed as Aboriginal and Torres Strait Islander Social Justice Commissioner. The proposed restructure of the Human Rights and Equal Opportunity Commission, to confer the current functions of the Commissioner on the Commission as a whole, is not discriminatory in any way. The same change is proposed for all specialist Commissioners. All the current functions of the Commissioner with respect to the human rights of indigenous Australians will be given to the restructured Commission. The Government believes the restructured Commission will be better able to address the full range of issues regarding indigenous Australians.
The Australian Government's overall priority in indigenous affairs is to support Aboriginal and Torres Strait Islander people to overcome a history of disadvantage within Australian society, through a combination of initiatives designed to address health and welfare needs, while encouraging economic development and self-reliance.
A concerted effort is being made to pursue tangible improvements in the critical areas of indigenous health, housing, education and employment. The Government is funding strategies which encourage commercial enterprise and long term self-reliance, rather than perpetuating welfare dependency. Australian Government spending on indigenous-specific programmes is now at an historic high level in real terms.
In the area of health, the Government has centred its efforts on establishing and expanding health services in rural and remote communities. These services provide improved daily health care for indigenous people and enable indigenous communities to take control of local health outcomes. Similarly, Government funded indigenous-specific education programmes assist indigenous students to pursue higher education, thereby improving their prospects of obtaining employment in the mainstream employment market. The Government also funds numerous business development programmes for indigenous Australians to assist them to achieve lasting economic independence.
The results of these policies are clearly evident in basic socio-economic data showing improvements in indigenous health, stronger educational outcomes, better housing and greater home ownership, and increasing numbers of indigenous people in skilled and professional occupations.
The Government recognises the importance of land in providing opportunities for greater social and economic development, as well as for fostering the maintenance and development of culture. In addition to the recognition of common law native title rights since 1992, many Australian jurisdictions have enacted legislation over the last three decades (as noted above) which provides for land claims and, in many instances, enables indigenous people to be involved in decision-making about land management and heritage protection. As already noted, there is also (and has been for the last twenty-five years) a programme of Government-funded land purchases principally for the benefit of those indigenous people unable to avail themselves of native title or statutory claims processes. Fifteen per cent of the continent is currently owned or controlled by Aboriginal and Torres Strait Islander people.
National reconciliation is also at the forefront of Australia's indigenous affairs agenda.
The Council for Aboriginal Reconciliation co-ordinates strategies to enhance the relationship between indigenous people and the wider Australian community, with an aim of achieving a formal statement of reconciliation by 2001. The Council has recently released a draft declaration, and four proposed strategies to advance reconciliation, as a basis for public discussion. The Government has launched a national campaign through which community organisations will develop projects to promote harmony between people and groups of different cultural backgrounds.
In summary, the Government's approach in indigenous affairs seeks to overcome disadvantage and support the genuine aspirations of indigenous people to achieve greater self-sufficiency. It aims to ensure that all Australians share equally in a common future which will form the basis of a lasting reconciliation.
[1] See (1998) 3 (4) AILR 590.
[2] The March 18 CERD Committee Decision on Australia is reprinted in (1999) 4 (2) AILR at 140.
[3] The texts of the Australian Government comments and the 16 August Draft Decision are available at http://www.faira.org.au/cerd/index.html.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/54.html