Kothari, Miloon --- "Preliminary Observations of the United Nations Special Rapporteur on Adequate Housing: Australia" [2006] AUIndigLawRpr 92; (2006) 10(4) Australian Indigenous Law Reporter 113

• United Nations Special Rapporteur on Adequate Housing: Mission to Australia
• I Purpose of the Visit
• 6 Indigenous Peoples

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United Nations Special Rapporteur on Adequate Housing: Mission to Australia

Preliminary Observations

Miloon Kothari

Canberra

15 August 2006

I Purpose of the Visit

At the invitation of the Government of Australia, the Special Rapporteur was invited to visit the country with the general objectives of:

(a) Examining and reporting on the status of realization of the right to adequate housing and other related rights in the country, with particular attention to aspects of gender equality and non-discrimination;
(b) To engage in dialogues with the Government and the civil society in their efforts to secure these rights;
(c) To identify practical solutions and best practices in the realization of rights related to his mandate.

The Special Rapporteur wishes to express his gratitude for the invitation of the Government of Australia and hopes that his mission will contribute positively to the implementation of the right to adequate housing in this country. He looks forward to continuing his collaboration with the Australian authorities.

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6 Indigenous Peoples

The Special Rapporteur was particularly disturbed by the adverse housing conditions in the Indigenous communities he visited.

The Indigenous communities in both urban and rural areas in all States visited, are facing a severe housing crisis. This is occurring with respect to the unaffordability, the lack of appropriate support services, the significant levels of poverty and the underlying discrimination. Most disturbing is the absence of adequate and comprehensive participation processes for Indigenous communities in decision-making forums, resulting in some cases in culturally inadequate solutions – options such as shared responsibility agreements, due to heir ad hoc nature, their conditional approach, and their limitation to individual communities, do not appear to adequately meet this gap. There is an urgent need to establish decision-making processes and institutions, that are representative of all communities, and allow for proper self-determination of Indigenous Peoples.

He notes that the notion of ‘home’ or ‘house’ can be differently perceived by Indigenous and non Indigenous. Housing for Indigenous communities necessitates a close examination of its cultural adequacy to the way of life of these communities.

The Indigenous Peoples experience substantial discrimination in Australia including in accessing adequate housing and private housing market. The Special Rapporteur notes that the so-called ‘shared responsibility agreements’ are very likely to be discriminatory and contrary to international human rights standards.

The Special Rapporteur has previously reported on the indivisible relationship between the right to land and the right to adequate housing – this is even more so for Indigenous communities where land is an integral part of their cultural identity. The amendments to the Aboriginal Land Rights Act (Northern Territory) 1976 submitted in parliament during the Special Rapporteur’s visit to Australia, raise grave concerns as to the extent to which the land rights of Indigenous peoples in the NT will be maintained.

It is important for the government to ensure that whatever measures it introduces are not retrogressive in nature, but seek to incrementally build towards the full realisation of human rights. The Special Rapporteur notes with concern reports he has received that there has been insufficient consultation with Indigenous land owners or the opportunity to provide input into this process, particularly on key issues such as the 99-year lease provision. Most concerning, is the potential removal of the role of Indigenous people as decision-makers over the use and access of the land during the lease period. Such measures would undermine the right to self-determination of Indigenous Peoples in the Northern Territory and may call into question Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights, including its provisions on self-determination.

The Preliminary Observations of the Special Rapporteur for Housing are available online at <http://www.ohchr.org/english/>.