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Melbourne University Law Review |
GILLIAN TRIGGS[*]
[The United Nations Committee on the Elimination of Racial Discrimination (‘CERD’) decided on 18 March 1999 that the Native Title Amendment Act 1998 (Cth) discriminates against Australian indigenous land title holders. This paper sets out the evolving international legal principles relating to indigenous peoples. The Native Title Amendment Act is assessed by reference to international treaty and customary law, emphasising the confirmation of extinguishment of native title, the erosion of the right to negotiate and the preferred position of third party interests. It is argued that the CERD findings are justified under international customary and treaty law, and that the right of individuals to communicate directly with international human rights bodies is likely to stimulate further efforts by indigenous peoples to seek recognition of their rights.]
The United Nations Committee on the Elimination of Racial Discrimination (‘CERD’) decided on 18 March 1999 that the Native Title Amendment Act 1998 (Cth) (‘Native Title Amendment Act’) discriminates against indigenous title holders by validating past acts, extinguishing native title, upgrading primary production and restricting the right to negotiate (‘RTN’).[1]
CERD expressed concern over the compatibility of the amended Native Title Act 1993 (Cth) (‘amended Native Title Act’) with Australia’s international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.[2] In particular, CERD stated that to ‘wind back the protections of indigenous title offered in the Mabo decision’ and the Native Title Act 1993 (Cth) (‘original Native Title Act’), might not comply with articles 2 and 5 of the Racial Discrimination Convention.[3] The lack of effective participation by indigenous communities in the formulation of the amendments was also thought by CERD to breach articles 1(4) and 2(2) of that treaty.[4]
On these grounds, CERD called on Australia to
address these concerns as a matter of urgency ... to suspend implementation of the 1998 amendments and reopen discussions with the representatives of Aboriginal and Torres Strait Islander peoples with a view to finding solutions acceptable to the indigenous peoples and which would comply with Australia’s obligations under the Convention.[5]
The Australian Government has rejected the decision.[6] The matter will, nonetheless, remain on the agenda for CERD, under its early warning and urgent action procedures, for review at the next session.
The decision by CERD is but one example of the growing concern international human rights bodies have for Australia’s indigenous peoples, prompted in part by the procedural capacity of individuals to communicate with international bodies.[7] The Native Title Amendment Act was passed in July 1998.[8] It is likely to be challenged by Australia’s indigenous peoples on constitutional grounds[9] and also on the wider ground that the amendments fail to conform to international law. The decision by CERD illustrates Australia’s vulnerability to findings by international human rights committees that it is in breach of its legal obligations to indigenous peoples. Indeed, as Australia’s indigenous peoples can now reach beyond domestic law to the international legal system, it is likely that similar findings will continue to be made against Australia in the future.[10]
This paper assesses the conformity of the amended Native Title Act, particularly those provisions that extinguish or diminish native title and the RTN, to Australia’s obligations at international law relating to indigenous peoples. In particular, the following issues are examined:
The rights and interests of indigenous peoples are evolving through the dynamic process of international law-making. International agreements and state practices have differing value at international law. Treaties and customary law impose legal obligations on state parties. By contrast, some international instruments call upon states to recognise rights, without imposing any formal obligations, and are consequently evidence of ‘soft’ law or of a rule de lege ferenda.[11] For example, United Nations General Assembly resolutions, draft declarations, state practices, and judicial and tribunal decisions may not be legally binding but are evidence of evolving standards and form a crucial part of the process by which guiding statements of principle become binding law.
The United Nations General Assembly Universal Declaration of Human Rights,[12] International Covenant on Civil and Political Rights (‘ICCPR’)[13] and the Racial Discrimination Convention create obligations for Australia at international law. Other international instruments, such as the International Labour Organisation Indigenous and Tribal Peoples Convention 1989 (No 169),[14] have not yet been ratified by Australia and are not part of Australian law. The Draft Declaration on the Rights of Indigenous Peoples[15] remains to be agreed, and international and national decisions, such as those of the United Nations Human Rights Committee and the Canadian Supreme Court, are of comparative and persuasive value only. However, these instruments and statements, especially when considered together, are evidence of the evolving recognition, at international and common law, of indigenous peoples’ rights and interests.
The following sources and evidences of international law are relevant to a consideration of the validity of the amendments to the original Native Title Act.
The United Nations Charter adopted, as its fundamental objectives under article 1, the promotion of ‘equal rights and self-determination of peoples’ and ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. In the early years of the United Nations, the emphasis lay on decolonisation and the promotion of individual human rights. More recently, the United Nations and its specialised agencies have considered the wider interests of groups, ‘peoples’ and non-state entities.[16] This opening of vision beyond state and individual interests has enabled indigenous peoples’ rights to be recognised as part of the human rights movement at large.
The Universal Declaration of 10 December 1948 provided further substance to the human rights described in the United Nations Charter. While the Universal Declaration was originally developed as a statement of guiding principles, it is now recognised as an authoritative interpretation of international standards in respect of human rights.
Of the strongest relevance to indigenous peoples is article 17 of the Universal Declaration that affirms:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
More precise effect is given to the Universal Declaration in other international agreements, particularly the ICCPR, which are considered below.
Australia ratified the Racial Discrimination Convention on 30 September 1975 and implemented it in part through the Racial Discrimination Act 1975 (Cth). The Racial Discrimination Convention is notable in that, unlike the ICCPR or the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)[17] and other human rights instruments, it is now directly applicable Australian law.[18]
Under article 2(1), state parties agree to condemn racial discrimination and to ‘engage in no act or practice of racial discrimination against persons, [or] groups of persons’.
‘Racial discrimination’ is defined by article 1 as:
[A]ny distinction, exclusion, restriction or preference based on race ... 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 general prohibition against racial discrimination is important to an assessment of the validity of the amended Native Title Act. In particular, the principle of non-discrimination applies to the ‘right to own property alone as well as in association with others’, mirroring article 17 of the Universal Declaration, and the ‘right to inherit’.[19]
Basic principles of the Racial Discrimination Convention appear to be at risk under the amended Native Title Act, particularly where the amendments extinguish native title or reduce opportunities to make a claim in the future.
The right not to be discriminated against on the basis of race, in a systematic way, has the legal status of jus cogens; that is, the prohibition of systematic racial discrimination has the legal status of a peremptory norm of international law from which no derogation is permitted.[20] It is accepted, for example, that laws imposing apartheid are systematic in their adoption and implementation of racially discriminatory practices.[21] The Native Title Amendment Act has wide, long-term and discriminatory effects upon Australia’s indigenous people and, while the recent CERD findings do not go so far, it is arguable that the amendments violate the jus cogens norm.
The recent decision by CERD arose after a request from it to the Australian Government to provide information on the changes introduced by the Native Title Amendment Act to the extent that they affect native title rights and the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner.[22] Australia responded to this request in January 1999 by summarising the history and intention of the Native Title Amendment Act and comparing it with the original Native Title Act. Australia argues that the amendments comply with four ‘fundamentals of the original Native Title Act’; that is, they establish a process for recognition of native title, ensure future protection of native title, provide certainty to land management activities in the past and future and provide a framework for dealing with native title.[23] This response is curious in that it assesses the amendments by reference to certain objectives of the original legislation, while failing to consider the compatibility of the amendments with the Racial Discrimination Convention. The rationale for this approach may be that, so long as the amendments do not deviate in principle from the original Native Title Act, there can be no breach of the Racial Discrimination Convention. If so, the logic is distorted, for an amending provision may well be both compatible with earlier legislation and discriminatory on the grounds of race.
A disturbing feature of the Government Response was its failure to draw to CERD’s attention the full impact of the amended Native Title Act in suspending the operation of the Racial Discrimination Act. Section 7 provides that the amended Native Title Act is to be construed subject to the Racial Discrimination Act, except that it applies only to the ‘performance of functions and the exercise of powers’ conferred by the amended Native Title Act. Importantly, the Racial Discrimination Act does not affect the validation of ‘past acts’ or ‘intermediate period acts’. In effect, a critical aspect of the amended Native Title Act is not subject to domestic judicial scrutiny under the Racial Discrimination Act. Indigenous Australians might reasonably question the bona fides of the Government in excluding the Racial Discrimination Act in this way.[24]
By contrast with the Government Response, the draft report of the Australian Government[25] does acknowledge the effect of s 7. The Draft Report to CERD points out that the Racial Discrimination Act cannot ‘invalidate an act affecting native title, whether it is a past act, intermediate period act or future act, that is valid under the [amended] Native Title Act.’[26] The Racial Discrimination Act will apply to administration of the native title regime and to interpretation of ambiguous terms of the amended Native Title Act. There may be little scope, however, to challenge the ‘performance of functions or the exercise of powers’[27] under the amended Native Title Act in Australian courts on the grounds of its inconsistency with the Racial Discrimination Act.
The validity of the limitations imposed on the Racial Discrimination Act in construing the amended Native Title Act have yet to be determined as a matter of domestic law. It has been argued that s 7 undermines the constitutional foundation of the legislation.[28] Moreover, ATSIC argues that to exclude the operation of the Racial Discrimination Act itself suggests a course of racially discriminatory conduct. Whatever the impact of domestic law, it has no bearing on the conformity of the amended Native Title Act to the Racial Discrimination Convention as a matter of international law.[29] While specific provisions are considered in more detail below, examples of possible violations of the Racial Discrimination Convention are:
An oft-repeated response to extinguishment or erosion of the protections granted by the original Native Title Act is that the legislation was a special measure and as ‘we gift it, we can do what we like with it’.[34] As the argument goes, if the RTN is a special privilege, its removal will not offend the prohibition on racial discrimination. Such an analysis may be misconceived. Another approach, adopted by former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson,[35] is to argue that laws to protect the relationship of indigenous peoples with the land are necessary to achieve substantive racial equality. Such laws are integral to efforts to achieve substantive equality and to derogate in a discriminatory way from these laws is to fail to meet an international legal obligation.
Under article 2 of the Racial Discrimination Convention, parties are required to ensure that their public authorities do not engage in ‘racial discrimination’. Affirmative action is required ‘when circumstances so warrant’. Thus the Racial Discrimination Convention recognises that it may be necessary to introduce laws which would otherwise be a prohibited form of discrimination, but which are intended to advance the interests of a racial or ethnic group. As O’Flaherty stresses, the obligation to take affirmative action is of ‘immense importance for racial or ethnic groups.’[36]
Article 1(4) allows ‘special measures’ to secure ‘adequate advancement’, so long as they do not lead to the maintenance of separate rights. In Gerhardy v Brown,[37] the High Court relied on this exception to the general prohibition on discrimination when deciding that a provision in the Pitjantjatjara Lands Rights Act 1981 (SA) was valid as a ‘special measure’, thereby justifying an act that would otherwise be racially discriminatory.
The possibility of introducing special measures should, however, be distinguished from the wider principle that it will not be a prohibited form of discrimination if formal equality of treatment is departed from in order to achieve substantive equality.[38] Indeed, the High Court appears to have recognised that its reliance on the ‘special measures’ exception in Gerhardy v Brown was unnecessarily narrow.[39]
The rationale for substantive, as distinct from formal, equality, was understood by the Permanent Court of International Justice in its Advisory Opinion on Minority Schools in Albania where it noted that, ‘[e]quality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.’[40] Similarly, Judge Tanaka in the South West Africa Cases (Second Phase) considered that:
[T]he principle of equality before the law does not mean the absolute equality, namely 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.[41]
The Racial Discrimination Act permits ‘special measures’ in Australian law. However, the limited international jurisprudence recognises the more comprehensive principle that, to achieve substantive rather than merely formal ‘equality before the law’ for indigenous peoples, it may be necessary to enact laws that treat races differently.
In a General Recommendation on article 1(1) of the Racial Discrimination Convention, CERD stated that:
[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, of the Convention ... 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.[42]
The relevant test for the validity of a form of differentiation is thus whether there is an ‘unjustifiable disparate impact’ on the group. There are many respects in which the amended Native Title Act appears to have such a disparate impact. It is doubtful whether there is any acceptable justification. Moreover, it is arguable that, so long as the problem the amended Native Title Act was intended to address remains unresolved, to amend that legislation in a ‘detrimental’ way breaches the international obligation to take measures to achieve substantive equality.
While it is the view of CERD that the amendments to the original Native Title Act are racially discriminatory, it is unclear whether a diminution in the rights protected by the amended Native Title Act is in breach of Australian domestic law. Rose argues that the Native Title Amendment Act can be expected to survive constitutional challenges because the amendments remain a law ‘with respect to’ the people of races ‘for whom it is deemed necessary to make special laws’.[43] Recent decisions of the High Court relating to s 51(xxvi) of the Australian Constitution (the ‘race power’) shed light on the tests which might be adopted by that Court when it considers the validity of the Native Title Amendment Act. In particular, provisions that extinguish native title and diminish the RTN raise the question of whether Parliament has the constitutional power to amend restrictively legislation that has given a benefit to a racial group.
In the Native Title Act Case,[44] the High Court unanimously held that the original Native Title Act was valid as a law dealing specially with the rights and interests of ‘people of the Aboriginal race’. It adopted the test of ‘manifest abuse’ of power to determine whether it can strike down, as part of its ‘supervisory jurisdiction’, a law supported by the race power.
Gummow and Hayne JJ in Kartinyeri v Commonwealth[45] followed this aspect of the Native Title Act Case, finding that no manifest abuse arose where the Hindmarsh Island Bridge Act 1997 (Cth) excised the bridge in question from the scope of the Australian and Torres Strait Islanders Heritage Protection Act 1984 (Cth) and that the modified legislation still fell within the race power.[46] The remaining four justices either did not deal with this issue or stated different tests.[47]
Two of the justices in the Hindmarsh Island Bridge Case considered a second test of validity of the legislation in issue by asking whether it can be supported by the race power if it is detrimental to, or discriminatory against, the people of the relevant racial group. Kirby J rejected the ‘manifest abuse’ approach as unworkable,[48] preferring the view that a law which is ‘detrimental to, and adversely discriminatory against’, the people of a particular racial group, cannot be supported by s 51(xxvi).[49] On this ground, Kirby J concluded that the Hindmarsh Island Bridge Act was ‘detrimental’ and, because it reduced the scope of protection afforded by a valid existing Act,[50] the amendment was invalid.[51] Under the test adopted by Kirby J, the question becomes whether the Native Title Amendment Act is on balance more detrimental than beneficial — a highly subjective and uncertain test and even less ‘workable’ than the ‘manifest abuse’ approach.
The judgment of Kirby J has particular relevance to the constitutional validity of the Native Title Amendment Act because he concluded that the original Native Title Act was ‘undoubtedly ... for the benefit and protection of Aboriginal people’.[52] The original Native Title Act validated ‘past acts’, thereby purporting wholly to extinguish native title, including grants of most pastoral leases.[53] It was only with the decision in Wik that it became clear that such purported legislative extinguishment went beyond the common law. Kirby J found the original Native Title Act was not detrimental because full compensation was payable in respect of any adverse effects of validated ‘past acts’ on native title.[54] As compensation is also payable under the amended Native Title Act,[55] it is possible that Kirby J would reach the same conclusion in the event of a constitutional challenge to these amendments.
There is, however, a significant distinction between the original and amended Native Title Acts. The diminution or extinction of indigenous rights under the amended Native Title Act is profound compared with the largely agreed concessions made under the original Native Title Act, especially when viewed in light of Wik. Examples of the significant nature of interests affected by the amended Native Title Act include certain leases and other interests granted before Wik and certain ‘future acts’ relating to primary production, use and regulation of water and airspace, renewals and extensions of leases, provision of public services and facilities and acts subject to the freehold test.
Gaudron J argued that ‘prima facie, at least, s 51(xxvi) only authorises laws which operate to the benefit of Aboriginal Australians.’[56] She concluded, nevertheless, joining the other four justices, that the amending legislation was valid. In reaching this conclusion, Gaudron J discovered a new test of validity: whether the amendments were ‘reasonably capable of being appropriate and adapted to the differences asserted’.[57]
Gummow and Hayne JJ stressed the importance of parliamentary sovereignty. They considered that to deny the validity of the Hindmarsh Island Bridge Act was to deny to ‘Parliament the competence to limit the scope of a special law by a subsequent legislative determination that something less than the original measure was necessary.’[58] It was accepted that Parliament should have the power to amend special laws so as to adjust to changing needs, including the power to diminish existing statutory rights.[59] While denying that the race power is hedged by limitations unexpressed, their judgment does not preclude the possibility that if the diminution of a special law is not warranted by the facts, is detrimental to indigenous peoples and is designed to achieve objectives other than their advancement, it will be beyond power. It is significant, for example, that Gummow and Hayne JJ confirmed that any legislative intention to interfere with fundamental common law rights, freedoms and immunities must be ‘clearly manifested by unmistakable and unambiguous language’.[60] The dicta of Gummow and Hayne JJ in the Hindmarsh Island Bridge Case provide some room for argument that the Native Title Amendment Act cannot be supported by the race power and that it is unconstitutional.
Brennan CJ and McHugh J did not deal with the issue of the constitutionality of detrimental laws when confirming the validity of the Hindmarsh Island Bridge Act.[61] The unsatisfactory position thus remains that two justices consider the race power is confined to acts for the benefit of Aboriginal Australians and two others appear to have accepted that legislation could validly diminish existing laws introduced for their benefit. With the revised composition of the High Court,[62] the question of whether Parliament can legislate under the race power to enact amendments to the original Native Title Act to the detriment of indigenous peoples remains uncertain.
Where a right, whether at common law or defined by legislation, is founded upon international law, any significant diminution of that right will both violate international law and deny modern developments in the common law itself. As CERD has found, the amended Native Title Act appears to discriminate on the basis of race to the significant detriment of indigenous peoples and thus to breach the Racial Discrimination Convention and international law in other respects.
The ICCPR protects the rights of indigenous peoples in the following provisions:
Article 1
(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.
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law ... the law shall prohibit any discrimination ... on any ground such as race ...
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
The ICCPR also protects the rights and interests of indigenous peoples under the rights to family and privacy in article 17, rights to freedom of thought, conscience and religion in article 18 and the right to protection of the family in article 23.
Article 1 is, prima facie, relevant to the validity of the Native Title Amendment Act which diminishes the RTN because the provisions threaten the capacity of indigenous peoples to pursue their economic, social and cultural development. The applicability of article 1 to indigenous peoples has, however, been controversial, because historically it has been equated with the decolonisation process and with an absolute right to form an independent state.[63] While, more recently, governments, including the Australian Government, have been willing to use the term ‘self-determination’ in association with the rights of indigenous peoples,[64] article 1 remains an aspiration for Australian indigenous peoples.
Although article 27 was not originally intended to apply to indigenous peoples because it is an individual, not a group, right, it has proved to be the most fruitful provision of the ICCPR in generating jurisprudence on indigenous peoples’ rights.[65] Article 27 is inherently collective in protecting culture, religion and language and is the most likely source of rights for indigenous peoples in the future. The Human Rights Committee has considered complaints under article 27 which are of direct relevance to Australian indigenous peoples and has demonstrated a willingness to act in a supervisory role in relation to acts which infringe the rights of indigenous peoples generally.
In Ivan Kitok v Sweden,[66] the Human Rights Committee considered a complaint by an indigenous person from Sweden relating to the right to carry out reindeer husbandry. The Committee found that, while the regulation of an economic activity is normally a matter for the state, there will be a violation of article 27 if the activity in issue is ‘an essential element in the culture of an ethnic community’.[67] Similarly, in Ominayak v Canada,[68] the Human Rights Committee found a Canadian Government lease over Indian land violated article 27, where the lease was to be used for commercial timber activities, on the grounds that this could destroy the traditional life of the Lubicon Lake group.
Both these findings by the Human Rights Committee provided a basis for the complaint in Lansman v Finland[69] that activities under a permit granted to a company to quarry and transport stone violated article 27 by interfering with the traditional reindeer husbandry of the Sami Tribe. The Committee found that, in fact, the quarrying was not significant and there had been no infringement of article 27. The Committee warned, however, that any future mining activities which might be approved on a large scale and significantly expanded by the company ‘may constitute a violation of the authors’ rights under article 27, in particular of their right to enjoy their own culture.’[70]
The willingness of the Human Rights Committee to link the right of minorities to enjoy their ‘culture’ with indigenous land is illustrated by Lovelace v Canada.[71] The Committee found that a member of a Canadian indigenous minority, the Maliseet Indians, had been denied her rights of access to native culture and language when she was prevented from residing on a tribal reserve. The reason for this finding was that there were no members of that community living outside the reserve. In recognising the relationship between the place where the community lived and the right to enjoy culture, the Committee’s finding strengthens Australian indigenous peoples’ claims to maintain cultural activities on the land, even where full native title cannot be made out.
It is significant when considering the provisions of the Native Title Amendment Act, particularly those restricting or eliminating the RTN, that, in 1995, the Human Rights Committee concluded that:
[C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples ... The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.[72]
In General Recommendation XXIII, CERD also stressed the importance of ensuring 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.’[73] In the recent decision of Hopu v France,[74] the Human Rights Committee considered a claim that the construction of a hotel in Tahiti located on ancestral grounds, of which the traditional owners had been dispossessed in 1961, would destroy their traditional burial grounds and have a strong impact on their fishing activities. Adopting a wide view of ‘family’ and taking into account past cultural traditions, the Committee concluded that the construction would interfere with the rights to family and privacy, in violation of articles 17(1) and 23(1) of the ICCPR.[75] The majority accepted that visits to ancestral lands can play an important role in a person’s identity.[76] It found that the proposed construction would be an arbitrary interference in rights to privacy and family life and that France was bound to protect these rights.[77] The Committee’s views are particularly significant because, as France has made a reservation to article 27, no finding was possible on this ground. Rather, the Committee has indicated that interests in indigenous land can be developed through other individual rights under the ICCPR.[78]
The value of these findings by the Human Rights Committee under the ICCPR for indigenous peoples lies in the recognition of the role that economic and resource activities play in the maintenance of the cultural rights protected by article 27 and in the possibility of protecting interests in indigenous land through rights such as privacy and family life. It is likely, for example, that article 27 will evolve to protect indigenous rights to harvest resources, including marine resources, where it can be shown that the activity is integral to the indigenous culture.[79]
The ICCPR and the views of the Human Rights Committee are relevant to Australian indigenous peoples. Australia became a party to the ICCPR in 1980. The Covenant has not been implemented directly into Australian law. Rather, it has been included in the schedule to the Human Rights and Equal Opportunity Act 1986 (Cth).[80] ‘Human rights’ are defined, for the purposes of the Human Rights and Equal Opportunity Commission (‘HREOC’), as including the rights and freedoms recognised by the ICCPR. In this way, the ICCPR provides the core definition of rights to be protected by HREOC through its activities.
Article 1(1) of the ICCPR has the status of customary law and is a binding norm of international law.[81] The rights guaranteed by articles 1(2) and 27, along with other provisions of the ICCPR dealing with privacy and family, are at least evolving norms and are arguably binding customary law. Proof of the international rule remains, however, the most vexed problem for domestic courts in applying international law.[82] If these articles are satisfactorily demonstrated to be customary law by state practice, treaties and judicial decisions, an Australian court may take the rule into account in any challenge to the Native Title Amendment Act, especially where there is a gap in the common law or ambiguity in the legislation.[83]
As is discussed in further detail below, the rights protected by the ICCPR, and by article 27 in particular, are threatened by the Native Title Amendment Act where it diminishes the capacity of indigenous peoples to participate in decision-making in relation to their land and where it has the effect of extinguishing or limiting native title rights and interests.
In 1975 Australia became a party to the ICESCR. The Government has not implemented this Covenant directly as part of domestic law because it is concerned with broad social, economic and cultural issues which are not easily translated into legislation. Rather, the policy has been to refer to the ICESCR as a statement of guiding principles which are to be reflected in the law as society develops.
The ICESCR repeats certain provisions of the ICCPR relating to indigenous peoples. Article 1, for example, confirms the ‘right to self-determination’. The ICESCR is mainly concerned to protect interests such as the right to work, education, family life and social security. These provisions have a special significance for Australia’s indigenous peoples. In diminishing or denying the RTN, the Native Title Amendment Act appears, for example, to jeopardise the opportunity for indigenous peoples to negotiate training and employment through activities relating to the land, contrary to article 6 of the ICESCR.
In 1957, the International Labour Organisation adopted the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries 1957 (No 107).[84] Article 11 provides: ‘The right of ownership, collective and individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised.’
ILO Convention No 107 was later strengthened in 1989, by ILO Convention No 169.[85] This Convention entered into force on 5 September 1991 and has 10 parties. While Australia played an active role in drafting this Convention and the Commonwealth Government was thought likely to ratify it in 1993, Australia has not yet done so. Article 4 provides that ‘special measures’ shall be adopted as appropriate for safeguarding, among other things, the property, cultures and environment of indigenous peoples.
ILO Convention No 169, while clearly stating the law for the parties to it, does not yet describe customary law for non-parties. The following provisions are, however, an indication of evolving norms which are relevant to the validity at international law of the Native Title Amendment Act:
Article 6
(1) [G]overnments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.
Article 7
(1) The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.
Article 13
[G]overnments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories ... which they occupy or otherwise use, and in particular the collective aspects of this relationship.
Article 14
(1) The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.[86]
Article 15
(1) The rights of peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
The primary objective of the ILO Convention No 169 is to ensure that indigenous peoples have the right to ‘control, to the extent possible ... their own economic, social and cultural development’.[87] These rights include the right to continue to own, operate and manage every part of the ecosystem they have traditionally used, except minerals, and to collaborate in planning and impact assessments to protect lands from the adverse environmental impacts of development.[88] It is relevant to the assessment of the diminution of the RTN by the Native Title Amendment Act, that article 15(2) provides that governments shall, ‘establish or maintain procedures through which they shall consult these [indigenous] peoples ... before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.’ The right under article 14 to certain measures to safeguard the right of access to lands which have been traditionally occupied, for subsistence and other traditional activities, also has relevance to the consideration of the restrictions imposed by the Native Title Amendment Act on the interim right of access afforded by the original Native Title Act.
The ILO Convention No 169 makes a unique and significant contribution to international law protecting indigenous peoples because it is the only treaty in force which specifically addresses their rights and interests. The ILO Convention No 169 is binding law for the parties to it and is evidence of evolving international standards[89] that form a ‘benchmark’ against which the amended Native Title Act can be measured. The Convention does not, however, create international obligations for Australia, but can inform developing common law.
The Draft Declaration on the Rights of Indigenous Peoples (the ‘Draft Declaration’) is currently being considered by the United Nations Commission on Human Rights. It may be many years before the Draft Declaration is adopted by the United Nations General Assembly. The Declaration was drafted by the Working Group on Indigenous Populations of the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities.[90] Australia has been an active participant in the development of international considerations of indigenous peoples’ issues and has contributed to the efforts of the Working Group. The Draft Declaration includes a number of principles that are relevant to native title claims.[91] Article 21, for example, provides that indigenous peoples have the right to ‘engage freely in all their traditional and other economic activities ... Indigenous peoples who have been deprived of their means of subsistence and development are entitled to just and fair compensation.’ Article 25 confirms the right of indigenous peoples to:
[M]aintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.
Under article 27, indigenous peoples have the right to ‘restoration of the lands, territories and resources which they have traditionally owned or otherwise occupied or used ... Where this is not possible, they have the right to just and fair compensation.’ Article 30 requires the informed consent of indigenous peoples to the exploration for and exploitation of resources on their lands, particularly:
[T]he development, utilization or exploitation of mineral, water or other resources ... just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
The Draft Declaration is likely to be altered significantly before it is opened for signature. It remains, nonetheless, a reflection of the aspirations of indigenous peoples and is likely to have an influential role on the development of law in the future.
In June 1992, the United Nations Conference on Environment and Development (‘UNCED’) adopted by consensus Agenda 21, which includes principles and proposed actions that could be relevant to the native title rights of indigenous peoples.[92] Chapter 26 of Agenda 21 deals with recognising and strengthening the role of indigenous peoples and specifically provides that their lands should be protected from activities that are environmentally unsound.
UNCED also adopted by consensus, on 13 June 1992, the Declaration on Environment and Development (‘Rio Declaration’), including principle 22:
[I]ndigenous people and 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.[93]
While Agenda 21 and the Rio Declaration do not create international law, they articulate fundamental principles that are emerging norms of environmental law. At the very least, these norms require that Australia’s indigenous peoples are assured the right to full consultation and participation in decisions to develop resources on their lands.
Australia has ratified the Convention on Biological Diversity, also a product of the Rio Summit.[94] The Convention entered into force on 29 December 1993 and, as at 5 May 1997, had 154 contracting parties. This almost universally approved Convention explicitly recognises the contribution indigenous peoples can make to the conservation and management of biological diversity and may have an impact on their traditional hunting and fishing activities.
Article 8 provides that each contracting party shall, as far as possible and appropriate:
(j) [R]espect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge.
Article 10 calls on parties to:
(c) [P]rotect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements ...
(d) Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced[.]
Provisions such as these create legal obligations for Australia to respect the knowledge of indigenous peoples in the conservation of biological diversity, to encourage traditional cultural practices in the use of biological resources and to engage indigenous peoples in remedial action. The Native Title Amendment Act, particularly as it diminishes the RTN, fails to acknowledge and implement these obligations.
At the regional level, there is further and growing support for recognition of customary indigenous practices. The Convention on Conservation of Nature in the South Pacific[95] (which came into force in June 1990, with Australia’s ratification) allows parties to make provision for customary use of areas and species in National Parks and National Reserves in accordance with traditional customary practices.[96] Provision under the amended Native Title Act for alternative regulation by State governments may run counter to the evolving norms of the South Pacific region, depending on the willingness of those authorities to recognise indigenous practices.
Similarly, the South Pacific Regional Environmental Program Intergovernmental Meeting, Ministerial Declaration on Environment and Development, reaffirmed, in 1991, the principles of the 1982 Rarotonga Declaration on the Human Environment in the South Pacific which urges the study of traditional marine tenure systems and a reconciliation with environmental management.[97]
Decisions of international tribunals such as the International Court of Justice or ad hoc arbitral tribunals, along with decisions of superior courts of other nations, are evidence of customary international law[98] and, as such, can be persuasive in illuminating and developing common law principles.[99] The High Court of Australia, for example, relied on the advisory opinion of the ICJ in the Western Sahara Case[100] when denying the continued validity in Australia of the concept of terra nullius in Mabo.
Of recent importance to understanding the legal nature of native title in Australia, and as further evidence of evolving international practice, is the decision of the Supreme Court of Canada in Delgamuukw v British Columbia.[101] The decision has immediate relevance to the validity at international law of the Native Title Amendment Act. The majority of the Court developed the concept of native title at common law and confirmed a fiduciary duty to consult with indigenous peoples concerning their land. While there are significant differences between Australian and Canadian law, Delgamuukw has comparative and persuasive value both as a source of international law and for the development of common law in Australia.
The case concerned a claim by the hereditary chiefs of the Gitksan and Wet’suwet’en peoples for aboriginal title over separate portions of 58,000 square kilometres in British Columbia. Lamer CJ and Cory, McLachlin and Major JJ, considered the following two issues which have a bearing on the amended Native Title Act.
The Court considered the theories underpinning native title and concluded that it is a sui generis interest in land, in the sense that:
[I]ts characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems. As with other aboriginal rights, it must be understood by reference to both common law and aboriginal perspectives.[102]
The Court confirmed that native title is not merely a statutory creation which can be taken away at the will of the legislature, but rather it is a unique right with characteristics which are recognised at common law as well as, in Canada’s case, entrenched in the Constitution. This aspect of the decision has relevance to the constitutional questions considered by the High Court in the Hindmarsh Island Bridge Case.
The Supreme Court accepted that there is a ‘special fiduciary relationship between the Crown and aboriginal peoples’ which constitutes a significant constraint on the exercise of sovereign power by Canadian governments.[103]
The Chief Justice developed the concept of fiduciary duty, saying:
There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified ... The nature and scope of the duty of consultation will vary with the circumstances ... even in these rare cases when the minimum standard acceptable is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.[104]
Despite differences in jurisprudence and respective constitutions, when one considers the similarity in native title rights under the common law of Canada and Australia, and the vulnerability of native title to extinguishment by the Crown, the views of the Supreme Court in Delgamuukw suggest there may be a similar general law duty on the Australian Government to consult indigenous peoples and to act in their best interests.
The evolving standards articulated in these treaties, draft declarations and judicial decisions confirm that:
The development of principles of international law recognising and protecting the rights of indigenous peoples is but a first step towards effective implementation of these rights.[105] It remains to assess the practical means of applying and enforcing international law in Australian law.
A distinction should be drawn between customary international law and treaty-based obligations. Customary international law derives from the practice of states. That practice gives rise to binding legal obligations when it is uniform, consistent and general, and if it is coupled with the belief that the practice is obligatory rather than merely a matter of habit.[106] Treaty-based obligations, by contrast, are rules to which states have specifically consented to be bound. While customary international law is not a formal source of Australian law, a recognised principle of international law will be applied by the courts in certain circumstances.[107] As Kirby P confirms, the proper approach ‘uses such statements of international law as a source for filling a lacuna in the common law of Australia or for guiding the court to the proper construction of the legislative provision in question.’[108] Brennan J, supported by Mason CJ and McHugh J in Mabo, relied on the opinion of the ICJ in the Western Sahara Case[109] to decide that the doctrine of terra nullius was no longer an accurate basis for considering native title in Australia, saying:
The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially where international law declares the existence of universal human rights.[110]
By contrast with customary international law, it has been clear that any treaty to which Australia is a party is not part of Australian law in the absence of implementing legislation.[111] The High Court in Teoh[112] qualified this position when it accepted the argument that ratification of a treaty by Australia raised a ‘legitimate expectation’ that the decision-maker would take into account the obligations the nation has accepted at international law. The Court was careful to distinguish between a legitimate expectation and a binding rule of law, saying:
[I]f a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.[113]
The concept of a legitimate expectation has since been rejected by both the Labor and Coalition governments. The Administrative Decisions (Effect of International Instruments) Bill 1998 (Cth) was introduced to ensure that no such expectation could be derived from the ratification by Australia of treaties. While this Bill has not been introduced in 1999 and its legal consequences are unclear, it may continue to have a ‘chilling effect’ on the willingness of Australian courts to take account of Australia’s ratification of a treaty which has not been implemented into domestic law. Rejection of the Teoh approach by successive Australian Governments does not, however, diminish the long-standing view that it is legitimate to refer to international law standards in order to interpret ambiguous legislation or to develop the common law where it is not clearly settled.[114]
While there is continuing uncertainty regarding the role of a treaty in Australian domestic law where it has not been implemented by legislation, the position at international law is clear. Under article 27 of the Vienna Convention on the Law of Treaties, where a state is a party to a treaty, it cannot ‘invoke the provisions of its internal law as justification for its failure to perform a treaty’. The role of international law in Australian domestic law is not, therefore, relevant to the question of whether Australia is in breach of international law. If the Native Title Amendment Act is found to be valid under Australian domestic law this will be no justification for a breach of international law.
Under article 26 of the Vienna Convention on the Law of Treaties, where Australia is a party to a treaty, it is bound to perform it ‘in good faith’. In light of the Government’s response to the request for information from CERD, indigenous peoples may argue that the Native Title Amendment Act is evidence of bad faith and of an attempt by Australia to act contrary to the obligations it has accepted under the treaties to which it is a party.
Where human rights have been included in a treaty to which Australia is a party, they can be implemented by a court only if they have been transformed into domestic law by legislation.[115] As has been noted, the Racial Discrimination Act has made the Racial Discrimination Convention directly applicable Australian law. The Racial Discrimination Act is not, however, typical of Australian practice in relation to human rights treaties. Rather, the approach, described by Professor Shearer as ‘quasi-incorporation’,[116] has been to schedule the relevant treaty to legislation, but not to make it directly part of Australian law. The Human Rights and Equal Opportunity Commission Act 1986 (Cth), for example, gives authority to the HREOC to seek implementation of human rights through public education and, in certain circumstances, judicial intervention. Human rights treaties, including the ICCPR and certain United Nations resolutions are then annexed to the legislation. The full implication of this process of quasi-incorporation has yet to be assessed by Australian courts. It is ironic, however, that Teoh arose in the context of the Convention on the Rights of the Child,[117] which has also been scheduled to the Human Rights and Equal Opportunity Commission Act, but is not otherwise part of Australian law.
The continuing uncertainty created by Teoh, and the failure thus far to pass the Administrative Decisions (Effect of International Instruments) Bill 1998 (Cth), demonstrate the paradox that Australia has accepted international human rights obligations, while continuing to deny implementation of these obligations in domestic law. Such an approach to international treaty obligations leaves Australia open to politically damaging findings by international human rights bodies that it is in breach of international law.
The practical result of the failure to implement human rights treaties as part of Australian law, compounded by the introduction of the Administrative Decisions (Effect of International Instruments) Bill 1998 (Cth), is that the human rights treaties to which Australia is a party are usually not directly applicable by a court. However, to the extent that these treaties relate to indigenous peoples, they continue to have a persuasive and guiding role where there is a gap in the common law or where legislation is ambiguous.
The original Native Title Act was the Australian Parliament’s legislative response to the decision of the High Court in Mabo that the common law recognises a form of native title when indigenous peoples have maintained their traditional connection with the land and their title has not been extinguished by legislation or other act of government.[118] The original Native Title Act was intended to provide: a process for the recognition and protection of native title; certainty for governments and others in land management; and a framework for dealing with native title in the future.[119]
Since 1993, several judicial decisions have undermined the assumptions on which the original Native Title Act was based. In 1995, the High Court in Brandy v Human Rights and Equal Opportunity Commission[120] suggested that the National Native Title Tribunal (‘NNTT’) did not have the constitutional power to make determinations of native title. Again in 1995, the Federal Court in Northern Territory v Lane[121] held that native title claims should be registered as soon as they have been lodged, thereby giving claimants automatic access to the RTN, whether or not the applicant would satisfy the acceptance test established by the original Native Title Act. Most significantly, in Wik, the High Court held that the assumption that native title had been extinguished by a grant of a lease was wrong because native title could continue to exist on land subject to a pastoral lease.[122] Where the relevant legislation does not confer exclusive possession, native title is not necessarily extinguished and, where an inconsistency arises between the rights of native title holders and the rights conferred on a lessee, native title rights must yield to the extent of the inconsistency.[123]
As a consequence of these decisions, the Commonwealth has argued that the original Native Title Act became inadequate in the following ways:[124]
The Commonwealth took the opportunity presented by the Brandy, Lane and Wik decisions to address these and other perceived inadequacies of the original Native Title Act. The changes, now the subject of the CERD decision, are summarised below:
The amendments which raise the most profound concerns regarding their possible non-conformity with Australia’s international legal obligations are those which erode the RTN, confirm past extinguishment of native title rights and validate ‘intermediate period’ titles.
The Native Title Amendment Act diminishes or denies indigenous land rights such as the right to inherit property and the opportunity for native title claimants to participate in the management of their land. The following are significant examples.
Under the common law there must be a ‘clear and plain intention’ to extinguish native title through the grant of an inconsistent interest.[146] The original Native Title Act left the question of extinguishment to be developed by the courts. Moreover, some justices of the High Court in Wik[147] recognised the possibility of a revival of native title once a non-exclusive tenure or pastoral lease expires. The amended Native Title Act pre-empts either the continued development of the common law or the revival of native title, by providing that particular classes of title and grants of interest will extinguish native title permanently.
The amended Native Title Act provides that if acts were ‘previous exclusive possession’ acts done before the Wik decision on 23 December 1996, these acts will have completely or partially extinguished native title.[148] Where, for example, the grant of an exclusive agricultural lease expires or the lease is surrendered to, or resumed by, the Crown, native title cannot exist again in relation to that land. An act which is a previous exclusive possession act includes any scheduled interest, freehold grants, commercial leases, exclusive agriculture or pastoral leases, residential leases, community purpose leases, leases of a town or residence linked to a mine, exclusive possession leases, vesting of land in certain statutory authorities and an expanded list of public works and adjacent land.[149]
Under schedule 1 of the amended Native Title Act, leases and other interests are listed as having conferred exclusive possession. The effect of the schedule is thus permanently to extinguish native title in the absence of a determination at common law and without examination, as envisaged in Wik, of the particular terms of each lease. It is possible, for example, that native title could revive in relation to community purpose leases, certain public works and adjacent land and government to government grants. The amended Native Title Act will ensure that even though the common law might recognise native title, no claim or judicial determination can be made on the issue. The ‘blanket’ extinguishment by schedule 1 is a significant diminution of the opportunity for indigenous peoples to pursue their claims to native title, contrary to international standards designed to protect the right to own property in association with others and the right to inherit.
The Australian Government, in its response to CERD, argues that schedule 1 applies to about 7.7% of Australia.[150] As freehold land represents about 12.8% of the land, there is 79% of land available for future claims where a traditional connection can be established. It is a matter of concern that a traditional connection may be more readily established in relation to the scheduled interests than in relation to other parts of Australia.
The power of a State or Territory to legislate to ‘confirm’ extinguishment of native title is also created by the amended Native Title Act where the ‘previous exclusive possession acts’ are attributable to them.[151] A recent illustration of the potential for the common law to recognise the existence or revival of native title is Ward v Western Australia,[152] where Lee J found certain scheduled interests do not reflect a clear and plain intention to extinguish native title. However, the Government of Western Australia has now tabled draft legislation to confirm extinguishment of native title by those scheduled interests. Similar legislation of the Queensland Government passed in August 1998 which confirms extinguishment of all Grazing Homestead Perpetual Leases is another example of how quickly the States and Territories may move to extinguish title permanently.[153]
The impact of the amended Native Title Act in confirming extinguishment may be softened by s 47A(2) of the Act which protects land or waters vested in or for the benefit of Aboriginal peoples or Torres Strait Islanders or is held on trust or reserved for them. Any extinguishment of native title rights and interests is to be disregarded in these instances. It remains necessary, nonetheless, for an applicant to show the existence of a connection with the land or waters, as required by the common law. It is also possible for indigenous peoples to claim compensation under the amended Native Title Act.[154] Financial compensation, however, is unlikely to meet the values protected by evolving international standards.
Where there is a ‘previous non-exclusive possession act’, including most pastoral leases, native title will be extinguished to the extent of any inconsistency.[155] Where a lease has expired or been surrendered and the land has reverted to vacant Crown land, a native title claim may be made only to the extent that title was not extinguished by the previous lease. The consequence is that there is a partial extinguishment of native title where, for example, any land taken up and subsequently returned to vacant Crown land cannot be the subject of a claim for full possession, occupation, use and enjoyment, even though the common law recognises the possibility of native title. Again, s 47A appears to soften the full impact of this partial extinguishment.
In summary, the provisions of the amended Native Title Act that confirm extinguishment appear to violate the Racial Discrimination Convention. The violation arises because the amendments discriminate by arbitrarily depriving native title holders and claimants of their rights to own and inherit property where only indigenous people will be adversely affected by the amendments.
The decision by the High Court in Wik had the effect that interests in land granted by several State and Territory Governments after the commencement of the original Native Title Act were potentially invalid. The Native Title Amendment Act retrospectively validates acts done in the ‘intermediate period’ between 1 January 1994 and the date of the Wik decision.[156] In this respect, the amendments are racially discriminatory because they validate acts and provide for extinguishment or impairment exclusively in relation to native title land and not in relation to other land or causes of potential invalidity. Validation is also discriminatory because it favours the interests of governments and those granted titles after 1 January 1994 over those of native title holders.[157] Compensation rights do not in these respects adequately protect the rights and values guaranteed by the Racial Discrimination Convention.
Diversification of activities under pastoral leases, such as cultivation, fishing, forestry, aquaculture and farmstay tourism, as well as off-farm activities on adjoining areas such as cattle grazing and the taking of water, will be permitted. This is so despite their impact on any native title rights and interests, and without consultation with the holders of underlying native title.[158] While compensation is payable for any impairment of native title resulting from diversification,[159] financial payments are not an adequate compensation for the discriminatory preference given by these provisions to third parties.
Governments may also permit third parties to cut and remove timber, and extract gravel and other natural resources, so long as native title holders are notified and given an opportunity to comment. The views of the Human Rights Committee in Ominayak v Canada,[160] that such commercial activities could destroy traditional life, are relevant to the international validity of the Native Title Amendment Act under article 27 of the ICCPR. The threat to native title interests in these resources is clear. It is not clear what opportunities for consultation will exist under the amended Native Title Act, though it is, of course, possible that they are sufficient to meet the requirements of the Human Rights Committee.
The amended Native Title Act also allows for compulsory acquisition of native title rights on pastoral leases without a RTN, enabling a lease to be upgraded to a freehold or similar title.[161] Despite the apparent even-handedness of such an acquisition,[162] the power to acquire native title compulsorily may be contrary to the Racial Discrimination Act and the Racial Discrimination Convention because the effect is to create, for the pastoralist, an enhanced interest, free of native title. The effect is also to exclude indigenous people from participation in the management and development of the land, to the possible detriment of the environment and biodiversity, contrary to international law such as the Biological Diversity Convention. Finally, the provisions establishing an apparently non-discriminatory acquisition can be expected to affect native title holders more than non-native title holders.
Under the original Native Title Act, future government acts in an onshore place were permissible only if they could be done in relation to land subject to ‘ordinary title’. This is the so-called ‘freehold test’. Under the amended Native Title Act, the range of future acts is expanded without reference to the freehold test, so future acts will be valid even where they might not have been permissible under the original Native Title Act without compulsory acquisition.
New rights are granted by the Native Title Amendment Act to non-native title holders relating to the management of water, living aquatic resources and airspace.[163] While the principle of non-extinguishment applies and native title holders are entitled to compensation, the amended Native Title Act, in effect, denies Australia’s indigenous peoples the opportunity to take full part in the management and exploitation of resources, including fisheries. International legal standards, such as principle 22 of the Rio Declaration and the Biological Diversity Convention, stress the vital role indigenous peoples have in ensuring sustainable and environmentally sound development. Moreover, the Human Rights Committee has recognised the role of economic activities in the cultural life of indigenous peoples under article 27 of the ICCPR.
Certain future acts, such as primary production, management of water, renewals, using previously reserved lands and building and operating services for the public, will not have to pass the ‘freehold test’.[164]
The amended Native Title Act restricts interim statutory rights of access to an area covered by a non-exclusive agricultural or pastoral lease pending determination of a native title claim. It does so by imposing a more stringent new registration test, requiring the applicant or his or her ancestor to show regular physical access to the area for carrying on traditional activities. The amendment also provides that a person who has traditional activity rights does not by virtue of that status have native title rights or interests in the area.[165] The interim right of access is now so confined it may prove difficult, in practice, for native title holders to demonstrate and exercise their rights. The injustice of historical dispossession is thereby compounded, contrary to recognition of the right of access by the Human Rights Committee in Lovelace v Canada.[166] Moreover, elimination of spiritual links with the land as a basis for rights of access appears to be inconsistent with the test envisaged by the High Court in Mabo.
Under the original Native Title Act, a RTN was attracted in relation to ‘permissible future acts’ where a government proposed to create a mining right or to acquire native title land compulsorily in order to confer interests on persons other than the government.[167] Under this RTN, the government was required to notify native title parties about any such proposal.[168] Native title parties then had two months in which to respond, followed by a further four to six months for ‘good faith’ negotiations to achieve an agreement with the grantee and the government.[169]
Under the original Native Title Act, if no agreement was reached, the matter was to be submitted for arbitration by the NNTT or other recognised State or Territory body.[170] The Minister could override the determination of the arbitral body in the national interest.[171] Moreover, the government could give notice that the proposed act attracted the ‘expedited procedure’ if the act did not interfere with the community life of native title holders or with areas or sites of particular significance to them.[172] The Native Title Amendment Act repeals the ‘future act’ system and creates a new one in which future acts are either valid or invalid.[173] While the structure of the RTN process remains in place, many significant details have been changed.[174]
Of particular significance to Australia’s indigenous peoples are restrictions on the RTN created by the amended Native Title Act. Where the RTN has been excluded, it remains necessary to comply with the ‘freehold test’ under which native title holders and any registered native title claimants have the same procedural rights as they would have in relation to the future act had they held ordinary title to the land. Native title holders must, in other words, be given the same rights that have been given to freeholders.[175] In this way, the amended Native Title Act purports to create a non-discriminatory regime.
The Native Title Amendment Act has the following impact on the RTN:
These provisions, individually and cumulatively, diminish the right to consultation and negotiation in relation to native title land. While it is thought likely that the High Court will uphold the constitutional validity of the Native Title Amendment Act,[193] the restrictions on the RTN fail to meet international legal standards. CERD has already expressed concern that no decision directly relating to the rights and interests of indigenous peoples should be taken without their informed consent[194] and that the ‘lack of effective participation’ by Australia’s indigenous communities in the formulation of the amendments raises concerns that they do not comply with article 5(c) of the Racial Discrimination Convention.[195]
The Commonwealth argues that the RTN is a right created by the original Native Title Act and, as such, it is a mere ‘statutory right’ which can be amended, diminished or taken away at the will of Parliament.[196] There is, however, merit in the view of former Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson, that Mabo supports the right to negotiate as an incident of common law native title.[197] Brennan J, with whom Mason CJ and McHugh J agreed, stated that, ‘[n]ative title has its origin in and is given its content by the traditional laws acknowledged by and traditional customs observed by the indigenous inhabitants of a territory.’[198] As ATSIC argues, the ‘sui generis nature of native title requires commensurate procedural protections’ to give practical effect to the attachment of indigenous peoples to the land in its economic, cultural and spiritual aspects.[199] The decision in Delgamuukw and the views of CERD and the Human Rights Committee support this analysis.
The question of whether the Australian Parliament has constitutional power to employ the race power to legislate to the detriment of indigenous peoples has been discussed above. This constitutional issue remains unclear as the Hindmarsh Island Bridge Case does not fully address the legislative power to diminish or deny a common law right.
While Parliament is supreme, in the sense that it can legislate to deny both a statutory and a common law right, it is one thing to restrict a statutory right, but quite another to diminish a common law right, especially where that right is protected at international law. Common law rights have a special status in the laws protecting indigenous peoples because they have been recognised and developed by domestic courts. Gummow and Hayne JJ, for example, stress the protections for common law rights in the Hindmarsh Island Bridge Case.[200] Certainly, a legislative act may purport to extinguish common law rights, but to do so is politically, morally and legally a more significant step when compared with the amendment of a mere statutory right.
The RTN appears to be more than a ‘special measure’ enacted under the Racial Discrimination Act which can be restricted by further legislation. Rathe