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Pritchard, Sarah --- "Native Title from the Perspective of International Standards" [1997] AUYrBkIntLaw 4; (1997) 18 Australian Year Book of International Law 127

[1] An earlier version of this article was delivered at the forum Sharing Country: Land Rights, Human Rights and Reconciliation after Wik, 28 February 1997, Research Institute for Humanities and Social Sciences, University of Sydney.

[*] Senior Lecturer, Faculty of Law, University of New South Wales; Director, Australian Human Rights Centre; editor, Indigenous Peoples, The United Nations and Human Rights (1998).

[2] Mabo v Queensland (No 2) (1992) 175 CLR 1; (hereafter referred to as Mabo (No 2)).

[3] Wik Peoples v State of Queensland (1996) 141 CLR 129; (hereafter referred to as Wik).

[4] Jackson M, “Changing Realities, Unchanging Truths”, Commission on Folk Law and Legal Pluralism, Proceedings of the papers presented to the Congress at Victoria University of Wellington (1992) p 443 at 454.

[5] von Benda-Beckmann F, “Citizens, Strangers and Indigenous Peoples: Conceptual Politics and Legal Pluralism” (1997) 9 Law and Anthropology 1 at 27 ff.

[6] Macklem P, “Ethnonationalism, Aboriginal Identities, and the Law” in Levin M ed, Ethnicity and Aboriginality: Case Studies in Ethnonationalism (1993) p 1 at 11.

[7] Dodson M, “Linking International Standards with Contemporary Concerns of Aboriginal and Torres Strait Islander Peoples” in Pritchard S ed, Indigenous Peoples, the United Nations and Human Rights (1998) p 18 at 21.

[8] Ibid.

[9] Williams R Jnr, “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World” (1990) Duke Law Journal 660 at 668, 669–70.

[10] On the different understandings of equality advanced in recent debates surrounding indigenous rights in Australia, see nn 60–63 below and accompanying text.

[11] See n 2 above.

[12] Sections 3, 10, 223(1).

[13] With respect to certain types of development (essentially mining and the compulsory acquisition of native title in order to make a grant to a third party) native title holders were given additional rights to negotiate before the development or “act” can proceed (s 26). If the parties could not reach agreement after negotiation, any party could apply to the National Native Title Tribunal (NNTT) or State or Territory arbitral body for a determination (s 27). In making its determination, the relevant body was to take account of a number of factors, including the effect of the proposed act on the way of life, culture and traditions of native title holders; on the development of social, cultural and economic structures and on areas or sites of particular traditional significance; the interests and wishes of the native title holders in relation to the management, use or control of the land or waters concerned; and the economic significance of the proposed act to Australia and the relevant State or Territory (s 39). A determination of the NNTT or a State or Territory arbitral body could be overruled by the Commonwealth or the State or Territory Minister respectively (s 42). Under the native title regime, therefore, the right to negotiate is not a veto. The 1993 NTA regime gave native title holders a right to negotiate both at the exploration and development phases. Recent amendments to the NTA have substantially limited the extent of the right to negotiate: see nn 19–28 below and accompanying text.

[14] See Nettheim G, “Nailing Down Native Title” (1997) (4) 3 Indigenous Law Bulletin 13; also Aboriginal and Torres Strait Islander Commission, Proposed Amendment to the Native Title Act 1993: Issues for Indigenous Peoples (1996); Beckett S, “Workability in Whose Interest? The Native Title Amendment Bill 1996” (1996) (3) 84 Aboriginal Law Bulletin 4; Beckett S, “But Wait … There’s More! Federal Government Releases More Amendments to the Native Title Act” (1996) (3) 87 Aboriginal Law Bulletin 8.

[15] See n 3 above.

[16] National Indigenous Working Group on Native Title, Coexistence — Negotiation and Certainty: Indigenous Position in Response to the Wik Decision and the Government’s Proposed Amendments to the Native Title Act 1993 (1997).

[17] The Ten-Point Plan provided for, amongst other things: validation of acts between 1 January 1994 and 23 December 1996 (point 1); confirmation of extinguishment of native title on “exclusive” tenures such as freehold, residential, commercial and public works, as well as agricultural leases to “the extent that it can reasonably be said that … exclusive possession must have been intended” (point 2); permanent extinguishment of native title rights over current or former pastoral leases and any agricultural leases not covered under point 2 to the extent that those rights are inconsistent with those of the pastoralist (point 4); provision of statutory access rights to native title claimants pending determination of native title claim (point 5); in relation to mining on vacant Crown land, a higher registration test for claimants seeking the right to negotiate, as well as no negotiations at the exploration stage and only one right to negotiate per project. In relation to mining on other non-exclusive tenures such as current or former pastoral lease-holdings, the right to negotiate would continue to apply unless displaced by a State/Territory statutory regime which includes compensation (point 6); the ability of governments to manage water (including offshore) resources and airspace to be put beyond doubt (point 8). Further, the 1996 proposal for a higher registration for the right to negotiate would apply to native title claims generally. The Ten-Point Plan also proposed a sunset clause — that is, a date by which native title claims must be lodged, as well as “means to encourage States and Territories to manage claims within their own systems”.

[18] National Indigenous Working Group, “Critique of the Ten-Point Plan” (1997) (4) 3 Indigenous Law Bulletin 10; also Aboriginal and Torres Strait Islander Commission, The Ten-Point Plan on Wik and Native Title (1997).

[19] Clarke J, “The Native Title Amendment Bill 1997” (1997) (4) 6 Indigenous Law Bulletin 4; Aboriginal and Torres Strait Islander Commission, The Native Title Amendment Bill l997: Issues for Indigenous Peoples (1997).

[20] Australians for Native Title and Reconciliation, 9 Facts About Howard’s Wik Legislation (1997).

[21] ANTAR argued that native title would be extinguished forever on many types of land which are essentially public land (public works, land grants from one government to another or to a statutory authority, land subject to community purposes leases) even where there is minimal or no conflict between the public uses and native title uses; that native title rights inconsistent with pastoralists’ rights would be extinguished on all land which at any time since colonisation had been pastoral leasehold; that pastoralists would be permitted to upgrade to full primary production, and native title rights inconsistent with new primary production activities would be extinguished forever; and that hundreds of unlawful mining licences and leases issued by State governments between 1 January 1994 and 23 December 1996 would be retrospectively validated.

[22] ANTAR claimed that in order to obtain compensation, indigenous people would still need to prove native title, and that technical difficulties and expense would make compensation almost impossible to obtain; that gutting the right to negotiate over proposed developments would leave traditional owners with negligible ability to protect their heritage; and that the extinguishment of most native title and destruction of the Wik co-existence model would destroy any real incentive for negotiated agreements.

[23] See account in Burke P, “The Native Title Amendment Bill: What Happened in the Senate” (1998) (4) 9 Indigenous Law Bulletin 4.

[24] Ibid.

[25] Provisions relating to the interim regime for representative bodies will commence on 30 October 1998 and the new regime one year later (s 2, NTAA).

[26] See Burke P, “Evaluating the Native Title Amendment Act 1998” (1998) Australian Indigenous Law Reporter (forthcoming) citing advice of Faigenbaum QC and Moshinski published in Tenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Native Title Amendment Bill 1997 (1997) Appendix 4.

[27] See Burke, n 26 above.

[28] Ibid.

[29] Universal Declaration of Human Rights (UDHR), adopted 10 December 1948, GA Res 217 A (III), UN Doc A/810 at 71 (1948). The UDHR was adopted by 48 votes, with eight abstentions and none against. The abstaining States were Saudi Arabia, South Africa, and 6 members of the Eastern European bloc: Belarus, Czechoslovakia, Poland, Ukraine, Union of Soviet Socialist Republics (USSR) and Yugoslavia.

[30] International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966, entered into force 23 March 1976, GA Res 2200 A (XXI), UN Doc A/6316 (1966); 999 UNTS 171.

[31] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted 16 December 1966, entered into force 3 January 1976, GA Res 2200 A (XXI), UN Doc A/6316 (1966); 993 UNTS 3.

[32] This consensus is reflected in documents of the Organisation on Security and Cooperation in Europe (OSCE). See Rosas A, “Property Rights” in Rosas A and Helgesen J, eds, The Strength of Diversity: Human Rights and Pluralist Democracy (1992) p 133 at 134 f, 144.

[33] Ibid, p 144. This is an approach distinct from the international legal regime’s treatment of the protection of foreign-owned property: on the extensive literature and divergent approaches see Harris D, Cases and Materials on International Law 5th edn (1998) p 548 f.

[34] For example, Hannum H, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (1990) p 112 f; Lucas E, “Towards an International Declaration on Land Rights” (1984) 33 The Review (International Commission of Jurists) 61; Nettheim G, Indigenous Rights, Human Rights with Reference to Australia (1985) p 6.

[35] Already in 1950 Lauterpacht H, International Law and Human Rights (1950) p 342 f.

[36] International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adopted 21 December 1965, entered into force 4 January 1969, GA Res 20/2106A (XX), 660 UNTS 195, preamble, “affirms the necessity of speedily eliminating racial discrimination … and of securing understanding of and respect for the dignity of the human person”.

[37] Mabo v State of Queensland (1988) 166 CLR 186.

[38] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.

[39] Charter of the United Nations adopted 26 June 1945, entered into force 24 October 1945 (hereafter referred to as the Charter).

[40] In the two rounds of debate in the Senate — November/December 1997 and April 1998 — the complex relationship between the RDA and the NTA became a key sticking-point. For an account see Father Frank Brennan’s recent lectures “The Wik Debate: A Legitimate Quest for Workability and Certainty or Just Downright Intolerance”, The Second Freilich Lecture on Tolerance and Bigotry, Humanities Research Centre, Australian National University, 2 June 1998; “The Royal Commission into Aboriginal Deaths in Custody: Lessons for Wik”, The Inaugural Elliott Johnston Tribute, Adelaide Town Hall, Adelaide, 19 May 1998.

[41] Goodrich L and Hambro E, Charter of the United Nations: Commentary and Documents (1949) p 323.

[42] Ibid; also Wolfrum R, “Article 56” in Simma B ed, The Charter of the United Nations: A Commentary (1994) p 793.

[43] Lauterpacht, n 35 above, pp 147–148.

[44] According to Jessup, for example: “It is already the law, at least for Members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter, a treaty to which they are parties”. Jessup P, A Modern Law of Nations: An Introduction (1968) p 91; also Sloan B, “Human Rights, the United Nations and International Law” (1950) 20 Nordic Journal of International Law 30; Higgins R, The Development of International Law Through the Political Organs of the United Nations (1963) p 118; McDougal M, “Human Rights in the United Nations” (1964) 58 American Journal of International Law 603 at 613.

[45] Partsch K-J, “Article 55(c)” in Simma B ed, The Charter of the United Nations: A Commentary (1994) p 776 at 778, 780. Referring to the non-discrimination clause in the 1948 UDHR (Article 2), Partsch suggests that: “One should not forget that the non-discrimination clause in Art.55(c) [of the Charter] already imposed obligations. The corresponding clause in Art.2 of the Declaration is only a repetition …” ibid, p 783. According to Schwelb:

The International Convention on the Elimination of All Forms of Racial Discrimination is, to a large extent, declaratory of the law of the Charter, or, in other words, the basic principles of the convention lay down the law which binds also states which are not parties to the convention, but, as members of the United Nations, are parties to the Charter.

Schwelb E, “The International Court of Justice and the Human Rights Clauses of the Charter” (1972) 66 American Journal of International Law 337 at 351.

[46] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution (1970), ICJ Rep 1971, p 16 at 57.

[47] Schwelb, n 45 above at 350.

[48] Brownlie I, Principles of Public International Law, 4th edn, p 570; also Bagley T, General Principles and Problems in the Protection of Minorities (1950) p 49; Higgins, n 44 above, p 119; Jessup, n 44 above, p 87; Lauterpacht, n 35 above, p 145.

[49] Brownlie, n 48 above, p 513.

[50] Article 53 of the Vienna Convention on the Law of Treaties describes as a peremptory norm of international law “a norm accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

[51] Brownlie, n 48 above, p 513.

[52] It is unnecessary to determine whether a breach of the prohibition of racial discrimination constitutes an international crime. In describing breaches of international obligations, the International Law Commission has made a distinction between international crimes and international delicts. International crimes are breaches of international obligation “so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole” (Article 19(2)). These include serious breaches “on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide apartheid” (Article 19(3)(c)). International delicts are internationally wrongful acts which are not international crimes. See ILC Draft Articles on State Responsibility, Report of the International Law Commission (1996), UN Doc A/51/10, p 125. The ILC’s decision to provide a separate regime for criminal liability has not been uncontroversial: see Harris D, Cases and Materials on International Law, 5th edn (1998) p 487 ff and authorities cited therein.

[53] Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report Submitted by Mr Theo van Boven, Special Rapporteur, UN Doc E/CN.4/Sub.2/1993/8, para 44; (hereafter referred to as the van Boven Report).

[54] European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221.

[55] “In becoming a Party to the Convention, a State undertakes, vis-a-vis the other High Contracting Parties, to secure the rights and freedoms defined in Section I [of the European Convention] to every person within its jurisdiction, regardless of his or her nationality or status … The obligations undertaken by the High Contracting Parties in the Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves”. Austria v Italy Application No 788/60 [1961] Yearbook of the European Convention on Human Rights (1962) at 116; generally Meron T, Human Rights and Humanitarian Norms as Customary Law (1989) p 159–160, 204–205.

[56] Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Rep 1970, p 3 at 32.

[57] van Boven Report, n 53 above.

[58] The Effect of Reservations of the Entry into Force of the American Convention, Advisory Opinion, OC–2/82 of 24 September 1982, Inter-American Court of Human Rights, Series A, Judgments and Opinions, No 2, para 29; see also Artucio A, “Impunity of Perpetrators” Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (1992) p 182 at 190.

[59] van Boven Report, n 53 above.

[60] See for example the characterisation by Senator Minchin of the right to negotiate as a “special privilege” because “Aborigines have these special rights that other Australians don’t have”. Sydney Morning Herald (1 June 1996) p 138; also Parliament of the Commonwealth of Australia, Seventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Native Title Amendment Bill 1996 and the Racial Discrimination Act (1996) p 28.

[61] See Chief General Counsel, Attorney-General’s Department, Senate Legal and Constitutional Legislation Committee, 29 November 1996, p 86. The Committee agreed with the opinion provided to it by the Attorney-General’s Department: see Senate Legal and Constitutional Legislation Committee, “Consideration of Legislation Referred to the Committee: Hindmarsh Island Bridge Bill 1996”, December 1996, p 19. See also evidence of Mr Stephen Palyga, Solicitor for Tom and Wendy Chapman, Senate Legal and Constitutional Legislation Committee, 29 November 1996, p 120.

[62] Ibid.

[63] Cited in Brennan, “The Wik Debate”, n 40 above.

[64] See generally Pritchard S, “Special Measures” in Race Discrimination Commissioner, Racial Discrimination Act 1975: A Review (1995) p 195.

[65] Minority Schools in Albania (1935) PCIJ Ser A/B No 64, p 17.

[66] Ibid. In 1947, the Sub-Commission on Prevention of Discrimination and Protection of Minorities suggested that the drafting of articles on the prevention of discrimination and protection of minorities might be facilitated by the following considerations:

1. Prevention of discrimination is the prevention of any action which denies to individuals or groups of people equality of treatment which they may wish.

2. Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics they possess and which distinguish them from the majority of the population … It follows that differential treatment of such groups or individuals belonging to such groups is justified when it is in the interest of their contentment and the welfare of the community as a whole.

The Main Types and Causes of Discrimination, UN Sales No 49.XIV.3 (1949), paras 6–7; see also Capotori F, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Sales No E.91.XIV.2 (1977), para 239. A memorandum prepared in 1949 by the UN Secretariat refers to the text of the Sub-Commission and concludes:

Thus the prevention of discrimination means the suppression or prevention of any conduct which denies or restricts a person’s right to equality. The protection of minorities, on the other hand, although similarly inspired by the principle of equality of treatment of all peoples, requires positive action: concrete service is rendered to the minority group, such as the establishment of schools in which education is given in the native tongue of the members of the group. Such measures are of course also inspired by the principle of equality. If a minority wishes for assimilation and is debarred, the question is one of discrimination and should be treated as such.

UN Doc E/CN.4/52 (1947), Section V.

[67] South West Africa, Second Phase, Judgment, ICJ Rep 1966, p 6 at 303–4, 305. In his 1977 Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities the Special Rapporteur of the Sub-Commission, Francesco Capotorti observed that the concept of non-discrimination “implies a formal guarantee of uniform treatment … whereas the concept of protection of minorities implies special measures”. Although distinct, the two concepts were closely linked: “The purpose of these measures is to institute factual equality between the members of the minority group and other individuals”.

[68] In a General Comment adopted in 1989 the Human Rights Committee confirmed that affirmative action — or positive discrimination — by States parties might sometimes be mandatory to implement the Covenant’s prohibition of discrimination and to improve the status of disadvantaged groups:

The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to a part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant. Finally, the Committee observes that 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.

General Comment 18 (1989), paras 10, 13; in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) p 28.

[69] General Recommendation XIV (1993), para 2; in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) p 68.

[70] The extent to which the measures called for by Article 26 ICCPR include affirmative action to establish de facto equality in a particular situation has not yet been the subject of an individual communication. In the State reporting procedure, however, States parties are frequently asked about the positive measures they have taken to counteract existing discrimination: Nowak M, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) p 477. With reference to Article 26, an officer with the UN Centre for Human Rights has suggested that:

it would … be conceivable that a member of a minority could submit a case demanding affirmative action, if such action is necessary for him or her to exercise Covenant rights on a basis of equality with members of the majority”.

de Zayas A, “The International Judicial Protection of Peoples and Minorities”, in Brolmann C et al eds, Peoples and Minorities in International Law (1993) p 253 at 269. In relation to the special measures provisions of CERD (Articles 1(1) and 2(4)), a former Secretary of the Committee on the Elimination of Racial Discrimination has commented:

While Article 1(4) allows for the continuation in a State party of certain affirmative programs for groups which have suffered from discriminatory practices, Article 2(2) actually imposes an obligation to undertake such affirmative actions. This provision is of immense importance for racial or ethnic groups and, given the extent to which it surpasses the obligations in Article 27 of the International Covenant on Civil and Political Rights in creating a regime of minority group rights, it is surprising that it has received so little attention from academics and NGOs.

O’Flaherty M, “Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination” in Pritchard S ed, Indigenous Peoples, the United Nations and Human Rights (1998) p 162 at 171.

[71] See generally Pritchard, n 64 above; also Bayefsky A, “The Principle of Equality or Non-Discrimination in International Law” (1990) 11 Human Rights Law Journal 1 at 27.

[72] UN Doc CERD/C/51/Misc.13/Rev 4 (1997) paras 4–5.

[73] David Alan Gerhardy v Robert John Brown [1985] HCA 11; (1985) 159 CLR 70. The Preamble to the NTA, as well, states: “This law, together with the initiatives announced at the time of its introduction and others agreed upon by the Parliament from time to time, is intended, or the purposes of the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders”.

[74] Section 8(1) of the RDA posits “special measures” as an exception to the general prohibition of racial discrimination in the Act.

[75] The Solicitor-General of South Australia, for the appellant, had submitted that: “There is no discrimination within s 9 when there is an objective or reasonable justification in the distinction, exclusion, restriction or preference. For there to be discrimination the distinction or differentiation must be arbitrary, invidious or unjustified … The distinction here is not based upon race as such, but on the recognition of the traditional owners of the land”. See n 73 above, at 72. Intervening in support of the appellant, the Solicitor-General for the Commonwealth had argued similarly: “Section 19 contains no provision, nor does it enter into any field, relating to racial discrimination. Rather, it provides legal recognition to a certain type of legal interests in land not previously recognized, namely traditional ownership. It is based on traditional ownership not race”. Ibid, at 72. Also intervening by leave, Counsel for the Anangu Pitjantjatjara had described the State Act as:

a legislative restoration of rights, benefits and privileges in relation to those lands to those people who have, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibility for, the lands … It does not contain any provision, nor does it enter upon the field, relating to racial discrimination. The criterion employed is based not on race but on traditional ownership. There is no direct inconsistency. Ibid, at 72.

[76] According to Mason J, for example: “I … regard the conclusion as inevitable that the effect of the State Act is to discriminate by reference to race, colour or origin because eligibility to enjoy the right which the statute confers depends in the manner described on membership of the Pitjantjatjara peoples. Ibid, at 103.

[77] Academic criticism of the conceptual basis of the Gerhardy decision is well-known: Brownlie I, “Rights of Peoples in International Law” in Crawford J ed, The Rights of Peoples (1988) p 1 at 9; Nettheim G, “Indigenous Rights, Human Rights and Australia” (1987) 61 Australian Law Journal 291 at 299. Sadurski W, “Gerhardy v Brown: Reflections on the Landmark Case that Wasn’t” [1986] SydLawRw 2; (1986) 11 Sydney Law Review 5 at 30; also Pritchard S, “International Law” in Aborigines and Torres Strait Islanders, Laws of Australia (1993) at 34–35.

[78] McKean W, “The Meaning of Discrimination in International and Municipal Law” (1970) 44 British Yearbook of International Law 178 at 185–186; also Lustgarten L, Legal Control of Racial Discrimination (1980) p 3–37; Vierdag E, The Concept of Discrimination in International Law (1973) pp 86–89. The Australian Law Reform Commission (ALRC) has endorsed an interpretation of CERD as prohibiting only invidious discrimination. The ALRC’s 1986 report on Recognition of Aboriginal Customary Law concludes that the prohibition of discrimination:

does not preclude reasonable measures distinguishing particular groups and responding in a proportionate way to their special characteristics, provided that basic rights and freedoms are assured to members of such groups. Nor does it preclude ‘special measures’, for example for the economic or educational advancement of groups or individuals, so long as these measures are designed for the sole purpose of achieving that advancement, and are not continued after their objectives have been achieved.

The Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) paras 150, 158.

[79] [1989] HCA 53; (1989) 168 CLR 461. Street’s case involved the interpretation of s 117 of the Constitution which provides: “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were the subject of the Queen resident in any other State”. Brennan J stated: “When it is necessary to treat a protected person differently on the ground of out-of-State residence … that ground reflects the fact that the protected person is in a position which is relevantly and necessarily different from the position she or he would be in if she or he were an in-State resident … Such different treatment is not truly discriminatory”. Ibid, at 513–514. Justice Gaudron made the following observations:

Although in the primary sense ‘discrimination’ refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. … The question whether different treatment assigned by reason of a relevant difference is appropriate to that difference is one which is peculiarly apt to an identified and relevant circumstance.

Ibid, at 570–571, 573. See discussion in Morgan J, “Equality Rights: A Feminist Assessment” in Alston P ed, Towards an Australian Bill of Rights (1993) p 123 at 140–142.

[80] [1990] HCA 1; (1990) 169 CLR 436. In Castlemaine Tooheys Ltd v South Australia the High Court had to consider whether a legislative regime which conferred a competitive advantage in the South Australian market was discriminatory and therefore infringed s 92 of the Constitution. Section 92 provides: “On the imposition of uniform duties of customs, trade, commerce and intercourse among the States … shall be absolutely free”. Justices Gaudron and McHugh referred to Gaudron J’s discussion in Street’s case of the general features of a discriminatory law and continued:

A law is discriminatory if it operates by reference to a consideration which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory, if although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference or, in other words, if it treats equally things that are unequal — unless, perhaps there is no practical basis for differentiation. Ibid, at 478.

[81] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.

[82] Western Australia v Commonwealth; Wororra Peoples and Yawuru Peoples v State of Western Australia; Teddy Biljabu v State of Western Australia (1995) 183 CLR 370, Transcript of Proceedings at Canberra on Monday, 12 September 1994, at 370. The NTA was, so the Commonwealth’s submission, “a specific measure designed to address a specific instance of lack of equality before the law in enjoyment of certain rights”. This made it not a special measure within the sense of s 8(1) of the RDA and Articles 1(4) and 2(2) of CERD, but a “reasonable and proportionate means of achieving substantial equality” as required “as a matter of international obligation” by Article 5 of CERD and Article 27 of the ICCPR. Ibid, at 371.

[83] Teddy Biljabu v State of Western Australia, ibid, at 434.

[84] Sanders D, “The Re-emergence of Indigenous Questions in International Law” (1983) Canadian Human Rights Yearbook 16 at 23.

[85] Or when, in the words of Gibbs CJ, the special measures have “degenerate[d] into discrimination” Gerhardy v Brown, n 73 above, at 88–89 (Gibbs CJ), also 105–6 (Mason J), 108 (Murphy J), 113 (Wilson J), 139 (Brennan J).

[86] “Re: Hindmarsh Bridge Bill: Opinion”, 27 November 1996, at 2.

[87] Senate Legal and Constitutional Legislation Committee, 29 November 1996, at 93; also Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1995–June 1996 (1996) p 2; Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 17 October 1996, at 3108–9, 3300–1.

[88] Senate Legal and Constitutional Legislation Committee, 29 November 1996, at 94.

[89] According to the former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson: “the right to control access to and activities on traditional estates is a consistent feature of Australian indigenous law”. Dodson, n 87 above, p 18. See also submission of Cape York Land Council to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Native Title Amendment Bill 1996:

[N]on-indigenous land titles derive from Parliament and the English feudal system of land tenure; native title is rooted in traditional law and custom for the particular area. It makes sense that achieving equal protection for these differently constituted titles may involve the use of quite different legal mechanisms — in other words, the achievement of non-discrimination through substantive rather than formal equality. The [right to negotiate] protects a basic incident of native title: the right to control access and activity on indigenous land. It is a measure to achieve substantive equality. The High Court has shown increasing interest in ‘substantive equality’ as a litmus test for non-discrimination. Amendments which tear at the heart of a basic incident of native title will not satisfy such a test.

Cape York Land Council, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Native Title Amendment Bill 1996 (1996) p 3. This approach was endorsed in the minority report: Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, The Native Title Amendment Bill 1996 and the Racial Discrimination Act: Second Minority Report (1996) pp 14, 19.

[90] See Lovelace v Canada, Communication No 24/1977, Selected Decisions of the Human Rights Committee Under the Optional Protocol, UN Doc CCPR/C/OP/1 (1988) pp 86–90; Kitok v Sweden, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), paras 9.2, 9.3, 9.8; Chief Ominayak v Canada, Communication No 167/1984, Report of the Human Rights Committee UN Doc A/45/40 (1990), vol 2, p 1, para 32.2; Lansmann v Finland, Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994) para 9.3.

[91] General Comment 23 (1994), para 6.2; in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) p 40.

[92] Ibid, para 7.

[93] See Sanders D, “Collective Rights” (1991) 13 Human Rights Quarterly 368 at 379–80.

[94] The Committee was required to find a balance between the rights of Kitok and the rights of the Sami community to which he belonged. The Committee noted that “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”. Kitok v Sweden, n 90

above, para 9.3. [95] Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), paras 9.2, 9.3, 9.8.

[96] Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990). The Human Rights Committee declined to consider whether the Lubicon Lake Band constituted a people under Article 1 of the Covenant. Instead, the Committee found a violation of Article 27, recognising that: “the rights protected by article 27, include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong”. para 9.3. See McGoldrick D, “Canadian Indians, Cultural Rights and the Human Rights Committee” (1991) 40 International and Comparative Law Quarterly 658.

[97] Ominayak v Canada, n 96 above, para 9.3.

[98] Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3.

[99] UN Doc CCPR/C/79/Add.50 (1995), para 37.

[100] For example, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January–June 1994 (1995) p 65.

[101] Opinion No 2, (1992) 92 International Law Reports 167.

[102] Benito EO, Elimination of All Forms of Intolerance and of Discrimination Based on Grounds of Religion or Belief (1989) para 19 UN Sales No E.889.XIV.3.

[103] Ibid, p 68 f. In a section dealing with freedom of religion, Australia’s second periodic report to the Human Rights Committee refers to measures to protect Aboriginal sacred sites: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Second Periodic Reports of States Parties Due in 1986: Australia, UN Doc CCPR/C/42/Add.2 (1987), para 459.

[104] The UN General Assembly’s 1970 resolution 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, provides:

Nothing in the foregoing paragraphs shall be interpreted as authorizing or encouraging any action which could dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples … [a]nd thus possessed of a government representing the whole government belonging to the territory.

[105] See also Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, 25 June 1993, para 4.

[106] Opinion No 2, n 101 above.

[107] General Recommendation XXI (48), adopted at the 1147th meeting, 8 March 1996, UN Doc HRI/GEN/1/Rev.3 (1997).

[108] UN Doc A/Res/47/135.

[109] Ibid, para 7.

[110] In 1982 a five member expert UN Working Group on Indigenous Populations (WGIP) was established to (i) review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations; and (ii) give special attention to the evolution of standards concerning the rights of such populations (ECOSOC resolution 1982/34). In 1985 the WGIP decided to produce “a draft declaration on indigenous rights” for eventual adoption by the General Assembly. In July 1993 the WGIP agreed upon a final text of the Draft Declaration on the Rights of Indigenous Peoples. In 1994 the WGIP submitted the text of the Draft Declaration to its parent body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (UN Doc E/CN.4/Sub.2/1994/2/Add.1). At its forty-sixth session in 1994 the Sub-Commission adopted the text of the Draft Declaration and decided to submit it to the Commission on Human Rights (CHR) (Sub-Commission resolution 1994/45). At it fifty-first session in 1995, the CHR decided to establish an open-ended inter-sessional working group “with the sole purpose of elaborating a draft declaration, considering the draft … of the Sub-Commission…” (Commission on Human Rights resolution 1995/32). The CHR inter-sessional working group (CHRWG) has held three sessions in Geneva. These sessions have seen a general discussion on the Draft Declaration and the scope of its application, the beginning of a first reading, and the adoption at first reading of two particularly non-controversial provisions: see Pritchard S, “The United Nations and the Making of a Declaration on Indigenous Rights” (1997) (3) [1983] AboriginalLawB 28; 19 Aboriginal Law Bulletin 4; Pritchard S, “Commission on Human Rights Working Group (CHRWG) Third Session 27 October–7 November 1997” (1998) (4) 10 Indigenous Law Bulletin 4.

[111] In the WGIP indigenous peoples’ organisations consistently maintained that the right to self-determination is the pillar upon which all other provisions of the Draft Declaration rest, and reacted vigorously against attempts to limit its parameters to the conduct of their internal affairs. For example, in 1993 it was stated that:

It is the position of the indigenous delegates … that self-determination is the critical and essential element of the Draft Universal Declaration on the Rights of Indigenous Peoples. Discussion on the right of self-determination has been and still is the sine qua non of our participation in the drafting process. The right of self-determination must therefore be explicitly stated in the declaration … We will not consent to any language which limits or curtails the right of self-determination.

Position of the Indigenous Delegates on Self-Determination, Working Group on Indigenous Populations, Eleventh Session, 20 July 1993. At the following session of the WGIP in 1994 former Aboriginal and Torres Strait Islander Commission Chairperson Lois O’Donoghue elaborated:

The call for self-determination in the Declaration on the Rights of Indigenous Peoples is not a new or different right that applies to us as indigenous peoples. The emphasis in the Declaration highlights the historical fact that this right has been denied to us. Self-determination for the member states of the United Nations has taken many forms. The same will happen, I believe, in the evolution of self-determination for indigenous peoples. There is not a single future to which we must conform, there are multiple futures. And multiple futures within the same environment. Our experience in Australia, for example, reinforces this message. We have ATSIC as an example and we have the Torres Strait Regional Authority. There are presently aspirations for autonomous self-governing States among some of our indigenous communities.

See generally Pritchard S, The United Nations Draft Declaration on the Rights of Indigenous Peoples: An Analysis (1996). The third session of the Commission on Human Rights Working Group on the Draft Declaration (CHRWG) in 1997 saw a far-reaching debate on Article 3 and the crystallisation of a number of different positions of States in relation to the right of indigenous peoples to self-determination: see Pritchard, “Commission on Human Rights”, n 110 above. The approach of the current Australian Government to Article 3 and the right of indigenous self-determination remains to be clarified. Earlier views of the Department of Foreign Affairs and Trade were described in a working paper entitled Self-Determination: The Australian Position, submitted to the first session of the CHRWG in 1995:

In Australia’s view, self-determination is not a static concept, but rather an evolving right which includes equal rights, the continuing right of peoples to decide how they should be governed, the right of people as individuals to participate fully in the political process (particularly by way of periodic free and fair elections) and the right to distinct peoples within a state to make decisions and administer their own affairs (relevant to both indigenous peoples and minorities.

UN Doc E/CN.4/1995/WG.15/2/Add.2, para 8. At the third session of the CHRWG in 1997 Australia declined to participate in the debate on Article 3 of the Draft Declaration.

[112] A Meeting of Experts to review the experience of countries in the operation of schemes of internal self-government for indigenous peoples, held in Nuuk, Greenland, 24–28 September 1991, concluded that:

5. Indigenous territory and the resources it contains are essential to the physical, cultural and spiritual existence of indigenous peoples and to the construction and effective exercise of indigenous autonomy and self-government. This territorial and resource base must be guaranteed to these peoples for their subsistence and the ongoing development of indigenous societies and cultures.

UN Doc E/CN.4/1992/42. An Expert Seminar on Practical Experiences Regarding Indigenous Land Rights and Claims, convened in March 1996 by the Government of Canada at the request of the UN Commission on Human Rights, concluded that: “The promotion and protection of rights over land and resources of indigenous peoples are vital for their development and cultural survival”. “The Whitehorse Conclusions and Recommendations on Indigenous Land Rights and Claims”, Report of the Expert Seminar on Practical Experience Regarding Indigenous Land Rights and Claims UN Doc E/CN.4/Sub 2/AC.4/1996/6, para 86(3). The Whitehorse Seminar called on governments to “renounce discriminatory legal doctrines and policies which deny human rights or limit indigenous land and resource rights”; in particular, “doctrines and policies imposing an extinguishment of indigenous land rights, title or ownership”.

[113] In this connection Principle 22 of the 1992 Rio Declaration on Environment and Development states:

Indigenous people, their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

The World Bank’s 1991 Operational Directive No 4.20 provides: “The key step in project design is the preparation of a culturally appropriate development plan based on full consideration of the options preferred by the indigenous people affected by the project”. See UN Doc E/CN.4/Sub.2/AC.4/1992/2.

[114] See generally Pritchard, n 111 above, pp 60–61.

[115] International Labour Office, A Guide to ILO Convention No 169 on Indigenous and Tribal Peoples (1995) p v–vi.

[116] Anaya J, “Indigenous Rights Norms in Customary International Law” (1992) 8 Arizona Journal of International and Comparative Law 1 at 5; also Anaya J, Indigenous Peoples in International Law (1996) p 57–8.

[117] Williams, n 9 above, at 677.

[118] Ibid, at 681.

[119] From the author’s files.

[120] Anaya J, Indigenous Peoples, n 116 above, p 49.

[121] Ibid, p 55.

[122] Ibid, p 55, 57.

[123] Kirby M, “Implications of the Internationalisation of Human Rights Law” in Alston P ed, Towards an Australian Bill of Rights (1994) p 267 at 268.

[124] See n 37 above.

[125] See generally Charlesworth H, “Australia’s Split Personality: Implementation of Human Rights Treaty Obligations in Australia” in Alston P and Chiam M eds, Treaty-Making and Australia: Globalisation Versus Sovereignty (1995) p 129.

[126] See n 2 above.

[127] The legitimate influence principle was applied by the High Court in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 and confirmed in Environment Protection Authority v Caltex [1993] HCA 74; (1993) 178 CLR 477 and Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. In Teoh’s case Mason CJ and Deane J expressed the view that, taking the transformation principle into account, a cautious approach should be taken in using international instruments to develop the common law; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288. In exercising their discretion to use international instruments as interpretive aids, judges should consider the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of domestic law; ibid, at 288. On decisions of the New South Wales Court of Appeal which have referred to international human rights principles, see Kirby M, “The Impact of Human Rights Norms: A Law Undergoing Evolution” (1995) 25 Western Australian Law Review 30; Kirby M, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes” [1993] UNSWLawJl 15; (1993) 16(2) University of New South Wales Law Journal 363.

[128] Aboriginal and Torres Strait Islander Commission, Recognition, Rights and Reform: Report to Government on Native Title Social Justice Measures (1995) Recommendation 11 at 154.

[129] Ibid.

[130] Proceedings of the Reconciliation Convention, Book 3 “Human Rights and Indigenous Australians”, 26–29 May (1997) p 109.

[131] Lester A QC, “The Impact of Europe on the British Constitution(1992) 3 Public Law Review 228 at 232.

[132] Mason A, “The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown” (1997) 46 International and Comparative Law Quarterly 812 at 829.

[133] In A v Australia the author ‘A’ lodged a communication primarily concerning the length of detention pending the resolution of his claim for refugee status (Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993). ‘A’ had been held in an immigration detention centre at Port Hedland for more than four years. The Human Rights Committee found that there had been breaches of Article 9(1) and (4), and Article 2(3) of the ICCPR. The Committee considered that ‘A’ had been subject to arbitrary detention, that the available grounds of judicial review of his detention were too limited to enable compliance with the ICCPR and that there was a failure to provide an effective remedy for the arbitrary detention. In the Committee’s view, an effective remedy would have included adequate compensation for the length of detention. The Committee’s views were issued on 30 April 1997. The Australian Government was requested to provide information about measures taken to give effect to the views within three months. On 17 December 1997 the Attorney-General and Minister for Immigration and Ethnic Affairs stated that after giving serious and careful thought to the views expressed by the Committee, the Government does not accept that the detention of Mr A was in contravention of the Covenant, nor that provision for review of the lawfulness of that detention by Australian courts was inadequate. Consequently, the Government does not accept the view of the Committee that compensation should be paid to Mr A.

Joint News Release, Attorney-General and Minister for Immigration and Multicultural Affairs, 17 December 1997, at 2.

[134] Australia’s reports to the Human Rights Committee under Article 40 of the ICCPR have been particularly tardy. A third periodic report was due in 1991, and a fourth in 1996. As a result of the lateness of these reports, the Human Rights Committee named Australia as one of a handful of States parties with two or more overdue reports in its 1997 report to the UN General Assembly. The Committee stated that it “considered itself duty bound to express its serious concern about the fact that so many States parties [we]re in default of their obligations under the Covenant. This state of affairs seriously impedes the Committee’s ability to monitor the implementation of the Covenant”. It had therefore “decided to list in the core of its report to the General Assembly ... the States parties that have more than one report overdue. The Committee wishe[d] to reiterate that these States are in serious default of their obligations under Article 40 of the Covenant”. Report of the Human Rights Committee, UN Doc A/52/40 (1997), volume 1. The third and fourth reports were finally submitted on 28 August 1998. Australia’s second report under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was due in 1994. Australia’s tenth and eleventh interim reports under Article 9 of CERD were due in 1994 and 1996. The Committee on the Elimination of Discrimination Against Women (CEDAW) agreed in 1997 to allow Australia to present a combined fourth and fifth report on implementation of the CEDAW in 2000. A fourth report to CEDAW was due in 1996.

[135] Banton M, International Action Against Racial Discrimination (1996) p 284. The Committee on the Elimination of Racial Discrimination considered Australia’s ninth periodic report in 1995: Report of the Committee on the Elimination of Racial Discrimination, UN Doc A/49/18 (1995). It expressed its appreciation for the “opportunity to engage in a frank, serious and extremely constructive dialogue with the delegation lead by the responsible Minister. He was accompanied by the Social Justice Commissioner, himself from Australia’s indigenous population and the holder of an independent post”. (Ibid, para 537). The Committee praised the Australian Government for creating the independent post of Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission. It commended the judiciary’s efforts at implementation of the provisions of CERD, referring to the High Court’s comments in Mabo (No 2). The Government was commended for its response to the High Court’s decision, which included the enactment of the NTA and the establishment of the Aboriginal and Torres Strait Islander Land Fund (Ibid, para 542).

At the same time, a number of concerns were expressed about the progress of Australia’s implementation of the Convention. These included the inability of the Federal Government to control implementation of provisions of international instruments because of exclusive State jurisdiction; the fact that the rate of Aboriginal deaths in custody remains at the level which prompted the establishment of the 1989 Royal Commission into Aboriginal Deaths in Custody (RCADIC); the fact that the requirements for proof of native title will result in a very small percentage of the Aboriginal population being able to benefit from the NTA; the fact that Aboriginal people continue to suffer disadvantage in such areas as education, employment, housing and health services and that Aboriginal people have a low level of participation in public affairs; and the inadequate protection of members of other minorities, particularly refugees and asylum seekers, against discrimination (Ibid, paras 542–546).

The Committee suggested the following changes to domestic legal structure and policy: pursuit of an “energetic policy” of recognising Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past; full implementation of the recommendations of the RCADIC; strengthening measures to remedy discrimination suffered by members of non-English speaking minorities and Aborigines in the fields of the administration of justice, education, employment, housing and health-care services and to promote participation in public affairs (Ibid, paras 547–551). The decreasing profile of Australia’s more recent participation in international human rights fora has been the subject of comment. In 1997 the CEDAW called on Australia to “resume its active and visible participation in international forums on women’s equality” (UN Doc CEDAW/C/1997/II/L.1/Add.8, paras 27–32).

[136] (1997), para 24.

[137] Anaya, Indigenous Peoples, n 116 above, p 184.