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Triggs, Gillian --- "Australia's Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1988 (Cth)" [1999] MelbULawRw 16; (1999) 23(2) Melbourne University Law Review 372

Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1988 (CTH)

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.]

INTROD UCTION

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:

  1. The development of international law relating to indigenous peoples, through treaties, United Nations resolutions, findings of human rights bodies, judicial decisions and draft declarations;
  2. The role of international law in Australian law;
  3. Provisions of the Native Title Amendment Act and their conformity to international law, including:
  • confirmation of extinguishment of native title
  • erosion of the RTN
  • preferred position of third party interests; and
  1. Individual complaints to international human rights bodies.

II INTERNATIONAL LAW RELATING TO INDIGENOUS PEOPLES

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.

A United Nations Charter and Universal Declaration of Human Rights

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.

B Racial Discrimination Convention

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.

1 Suspension of the Racial Discrimination Act

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:

  • The validation of ‘intermediate period acts’ taking place between 1 January 1994 and the decision of the High Court in The Wik Peoples v Queensland; The Thayorre People v Queensland[30] on 23 December 1996, appears to be racially discriminatory because it validates acts and provides for extinguishment or impairment exclusively in relation to native title land and not in relation to other non-racially based causes of potential invalidity.[31]
  • Despite the willingness of some members of the High Court in Wik to accept the possibility of revival of native title once a non-exclusive tenure expires, the amended Native Title Act defines ‘previous exclusive possession’ so as to extinguish native title.[32] This amendment appears to violate, in a racially discriminatory manner, the right of indigenous peoples to own and inherit land.
  • The right to own property and to inherit is also threatened by the blanket extinguishment of native title under schedule 1 of the amended Native Title Act which purports to deny the opportunity to examine the terms of each lease, as had been envisaged in Wik.
  • The extinguishment of native title by compulsory acquisition[33] appears contrary to the Racial Discrimination Convention because the effect is to exclude indigenous peoples from a role in the management and development of native title land.

2 International Duty to Achieve Substantive, as Distinct from Formal, Equality

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.

3 Constitutional Validity of the Native Title Amendment Act under the ‘Race Power’

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.

C International Covenant on Civil and Political Rights

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.

D International Covenant on Economic, Social and Cultural Rights

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.

E International Labour Organisation Convention Concerning Indigenous and Tribal Peoples

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.

F Draft Declaration on the Rights of Indigenous Peoples

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.

G Indigenous Peoples and the Environment

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.

H Biological Diversity Convention

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.

I Pacific Region Conventions

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]

J Comparative International Judicial Decisions

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.

1 Nature of Native Title at Common Law

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.

2 Fiduciary Relationship Between the Government and Indigenous Peoples

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.

K Summary of Evolving International Law Concerning Indigenous Peoples

The evolving standards articulated in these treaties, draft declarations and judicial decisions confirm that:

  • Where a government acts in relation to native title land, it is bound to ensure participation in the decision through full and bona fide consultation with, and in some instances, through the consent of, the indigenous peoples concerned and to provide full compensation where their rights are adversely affected.
  • International law recognises and protects the relationship between indigenous peoples and the land.
  • Indigenous peoples have a right to own land in association with others (that is, on a communal basis) and to inherit that land.
  • Indigenous peoples have a right not to be discriminated against on the basis of race and to have the benefit of laws to ensure substantive equality.

III INTERNATIONAL LAW AND ITS ROLE IN AUSTRALIAN LAW

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.

IV NATIVE TITLE AMENDMENT ACT

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]

  • Native title holders and pastoralists were uncertain of their respective rights on pastoral lease land.
  • The RTN could be gained on registration of a claim with the NNTT, resulting in overlapping claims, giving many native title parties the right to negotiate within those areas.
  • There was no mechanism for recognition of co-existing interests in land to which the ‘freehold test’ was no longer appropriate.[125]
  • Governments had undertaken activities after 1 January 1994 on pastoral lease land on the basis that no native title existed.
  • There were problems in the administration and final determination of claims. For example, by December 1998, only one offshore and four mainland decisions regarding native title had been made out of over 700 existing applications before the NNTT.[126]
  • The Act imposed ‘unintended restrictions and cumbersome procedures’ on ‘many legislative and executive acts and on actions by holders of many kinds of non-freehold interests.’[127]
  • Agreements between native title holders and governments, though encouraged to avoid costly litigation, were unsatisfactory because they were not legally binding and made no definitive determination of native title.
  • Provisions intended to permit low impact mining and petroleum exploration titles to go forward in the absence of the usual RTN had proved to be ineffective.
  • Greater recognition of the Aboriginal and Torres Strait Islanders representative bodies was needed.

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:

  • All applications for determination of native title and compensation under the amended Native Title Act are to be made directly to the Federal Court.[128]
  • States and Territories can validate acts done between 1 January 1994 and the Wik decision on 23 December 1996, so long as they were done on current or former leasehold or freehold land.[129]
  • The amendments confirm that pastoralists, governments and land and environmental regulatory regimes can carry on activities under pastoral leases, even though there may be co-existing native title.[130] Governments will be able to continue to grant off-farm grazing and irrigation rights and to remove some resources from pastoral leases, though native title holders are given procedural and compensation rights.[131]
  • A new registration test has been adopted under which a claimant can be a party to a RTN process, has the right to be notified and comment on certain government acts and mining and compulsory acquisitions, is eligible to exercise statutory rights and can respond to ‘non-claimant’ applications. Registration depends on satisfying a number of criteria.[132]
  • The RTN has been ‘streamlined’, ‘reworked’, ‘removed’ and ‘replaced’[133] with the result that the ‘unique statutory right’ has been significantly changed from the right granted by the original Native Title Act.[134] While native title holders have the same rights as freeholders (including the rights to be notified and consulted and to object and be heard by an independent body), the unique nature of the RTN has been taken away or significantly attenuated. The States and Territories can now replace the Commonwealth RTN with their own regimes and can create alternative procedural rights for low impact mining grants and for alluvial gold, tin, opal and gem mining.[135]
  • Past extinguishment of native title by the grant of exclusive possession tenures can be confirmed by the States and Territories. The earlier exclusive possession act will extinguish ‘any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned’. For practical purposes, this includes freehold and residential, commercial, community and some agricultural leases.[136] Where there was in fact no prior common law extinguishment, just terms compensation must be paid.[137] Native title claimants in occupation of a land rights type of grant, or land held on trust for indigenous people, can overcome the effect of past extinguishment by any historical act and have their claim determined.[138] Land which has reverted to vacant Crown land, even though the extinguishment of native title over it has been confirmed, can be claimed.[139]
  • Registered native title claimants are assured that their existing access (as of the date of the Wik decision) to pastoral lease land is protected while they await determination of their claims.[140]
  • A system for registration of indigenous land use agreements has been established.[141]
  • The rights of governments to authorise the use and management of water, to provide facilities to the public and to implement past reservations of land for a particular purpose, have been clarified. Native title holders are given the opportunity to comment on the proposed activity and compensation is payable for any effect on native title.[142]
  • The ability of State and Territory land systems to manage the native title claims process has been facilitated.[143]
  • The Native Title Amendment Act repeats the earlier provision of the original Native Title Act that it is to be read and construed subject to the Racial Discrimination Act, but excludes that Act in relation to the validation of past acts or intermediate period acts.[144]
  • Native title can be extinguished only by agreement with native title holders or by a non-discriminatory acquisition process. The result is that native title holders have the same rights as freeholders. The compulsory acquisition provisions have also been strengthened.[145] Any right to compensation is, however, dependent on proof of native title before the courts.

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.

A Diminution or Extinguishment of Native Title Rights

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.

1 Confirmation of Past Extinguishment

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.

2 Validation of ‘Intermediate Period’ Titles

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.

3 Expansion of the Rights of Pastoralists

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.

4 Diminution of Other Existing Rights

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.

B Erosion of the Right to Negotiate

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:

  • Provisions validating intermediate period acts and confirming past extinguishment of native title by certain valid or validated acts have the effect of significantly reducing the area of Australia to which the RTN will apply.[176]
  • The Native Title Amendment Act reduces the range of future acts to which the RTN applies. For example, the RTN will no longer apply to compulsory acquisition of native title rights and interests if the purpose is to confer rights on a third party and where the conferral is to provide an infrastructure facility.[177] Under the amended Native Title Act, the grantee or government must consult with native title claimants on ways to minimise the impact of the act on native title rights and interests (though there is no time period stated), and the native title parties have a right to object and to be heard by an independent person.[178]
  • The RTN will no longer apply in the inter-tidal zone.[179] The RTN is confined to the land-ward side of the mean high water mark of the sea, thus excluding both the offshore (as was the case under the original Native Title Act) and the inter-tidal zone. This provision diminishes the RTN because this zone contains resources that are historically and presently part of the culture and sustenance of indigenous peoples. The amended Native Title Act appears to allow miners and others, such as oyster farmers, to go forward with activities in the inter-tidal zone with little consultation with native title holders.
  • The RTN is excluded in relation to the creation of a right to mine through renewal, remaking or extension. In future, there will be one RTN for each project.[180]
  • The RTN is restricted in relation to future acts allowing mining exploration, prospecting, fossicking or quarrying if the Minister administering the Native Title Act exercises his or her discretion on the ground that, for example, the act is unlikely to have a significant impact on an area.[181]
  • The RTN is excluded in relation to future acts relating solely to land or waters wholly within a town or city, offshore or within the inter-tidal zone.[182]
  • The RTN is excluded from any ‘approved gold or tin mining act’.[183]
  • The RTN will not apply to the creation or variation of a right to mine within an ‘approved opal or gem mining area’.[184]
  • Amendments to s 237 of the original Native Title Act narrow the expedited procedure. A future act will attract the expedited procedure, under which there is no RTN and the government may proceed to do the act, if the act is ‘not likely to interfere directly with the carrying on of community or social activities of the persons who are the holders ... of native title in relation to the land or waters concerned’. As the test is confined to the physical aspects of community or social activities, any adverse impact on spiritual attachment cannot prevent the expedited process going forward.[185]
  • The period for exercise of the RTN has been reduced to four months.[186]
  • The Native Title Amendment Act modifies the process under which a non-claimant may ascertain whether native title exists, so that any response by a claimant must first be registered under the more stringent registration test.[187] A possible consequence for native title claimants is that, where they are unable to meet the three month time limitation for registration, a non-claimant will be able to confirm that there is no competing native title, thereby constituting a ‘fast-track’ means of avoiding negotiation with native title holders.
  • Under the amended Native Title Act, future acts in areas of primary production, management of waters and airspace, renewals and extensions, reservations and leases, and facilities for services to the public, will be valid without a RTN. These categories of acts would have been valid under the original Native Title Act only if there had been compulsory acquisition and compliance with the RTN.[188]
  • Section 43A of the amended Native Title Act gives the Minister administering the Act power to allow alternative State or Territory laws to have effect in relation to an area of land or waters that is subject to a lease over which all native title rights and interests have not been extinguished. The result of permitting such State or Territory procedures to operate is to exclude the RTN that would otherwise have applied.
  • Section 190A of the amended Native Title Act makes the registration test more stringent so that the RTN is further weakened. Only those claims which are on the Register of Native Title Claims will attract the RTN. In order to gain entry on the register, the claim must pass new procedural and substantive registration requirements. Under the original Native Title Act, the Registrar was required to accept an application unless they considered that, prima facie, the claim could not be made out. Under the amended Native Title Act, the Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in an application can be established before permitting registration.[189] Further, the Registrar must be satisfied that at least one member of the native title claim group currently has or had a traditional physical connection with the area covered by the application.[190]
  • The Minister administering the amended Native Title Act now has power to make a determination if the arbitral determination is delayed.[191]
  • Acts authorised by an indigenous land use agreement are excepted from the RTN.[192]

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. Rather, the RTN, as a form of consultation, is founded on principles of customary international law and is implicit in the nature of native title, as recognised at common law.[201] Moreover, significant diminution of a RTN appears contrary to Australia’s obligations at customary and treaty law under article 27 of the ICCPR, article 5(c) of the Racial Discrimination Convention, article 15 of the ILO Convention No 169 and the views of CERD and the Human Rights Committee.

It has been noted that the amended Native Title Act purports to create a non-discriminatory position for native title claimants so that they have the same procedural rights as any freeholder.[202] Formal equality of this kind does not, however, satisfy the legal obligation to ensure substantive equality as required by the Racial Discrimination Convention and the views of the Human Rights Committee. Formal equality between native title holders and other title holders does not, for example, comply with the recognition by international law of the special relationship between indigenous peoples and the land under articles 8 and 10 of the Biological Diversity Convention[203] and article 13 of the ILO Convention No 169.

C Summary: Does the Native Title Amendment Act Comply with International Law?

The amendments to the original Native Title Act are complex. Individually and collectively, the amendments appear to fail to conform with the letter and spirit of international standards that require protection of native title and consultation with indigenous peoples on all matters relating to their land. The following specific international law provisions appear to have been breached:

  • ILO Convention No 107: article 11, the right of ownership of lands traditionally occupied.
  • ILO Convention No 169: article 4, adoption of special measures; article 13, special relationship between indigenous peoples and the land; article 14, recognition of rights of ownership and the land; article 16, relocation of indigenous peoples from their lands.
  • Racial Discrimination Convention: article 5(v), right to own property and article 5(vi), right to inherit. Not only is the right to own property in association with others restricted or extinguished by the Native Title Amendment Act, it also purports to deny future generations of indigenous peoples the right to do so. It is also arguable that the Native Title Amendment Act violates articles 1 and 2, which prohibit racial discrimination against a group of persons, because many of the provisions apply only to indigenous people and not to other groups.
  • ICCPR: article 2(1), states parties undertake to ensure all individuals enjoy the rights recognised by the Convention, without any distinction on grounds such as race; article 27, enjoyment of culture in community by minorities. The Native Title Amendment Act purports to deny the rights recognised by article 27, by denying, in a racially discriminatory way contrary to article 2(1), the interests of indigenous peoples in resource, economic and cultural activities on their land.
  • Biological Diversity Convention: article 10. The Native Title Amendment Act purports to exclude indigenous peoples from their recognised cultural role in the sustainable use and management of lands.

V COMPLAINTS TO INTERNATIONAL FORA

Australian courts have become familiar with the substance and methodologies of international law and are willing to examine international law as a means of understanding the common law.[204] They remain, however, bound by the rule that they may not resort to a treaty or other source of international law in the absence of ambiguity or lacunae in domestic legislation. This reluctance has now been compounded by the decision in Teoh. It is not therefore surprising that Australia’s indigenous peoples are now looking to the procedures for complaint directly to an international body in order to gain recognition of their rights and interests.[205]

Australia has accepted the procedures for individual complaint under, among others, the Optional Protocols to the ICCPR[206] and the Convention Against Torture[207] and under article 14 of the Racial Discrimination Convention. Once local remedies have been exhausted, an individual may communicate with the relevant international committee, which can then consider whether the complaint is made out.[208] An impediment to communications by representatives of indigenous peoples is that, for example, under article 1 of the Optional Protocol to the ICCPR, only a victim of a breach or their personal representative can employ the communication procedure. Thus ‘class actions’ are not possible.

Any negative finding by an international human rights body is not directly enforceable against the offending state. For example, under the Optional Protocol to the ICCPR, the Human Rights Committee is required to bring a communication to the attention of the relevant state.[209] Within six months, the receiving state must respond to the Committee by clarifying the matter and describing the remedy it has adopted or proposes to adopt.[210] The Committee may then include its findings in its Annual Report to the United Nations General Assembly.[211] A finding of breach does, however, raise international awareness of national violations of human rights which has political consequences and, through persuasion, may be ultimately reflected in legal obligations.

The signal advantage of the international communication procedure is that the legal issues raised by a complaint can be considered by reference to the human rights protected by the treaty. Domestic laws should conform to the obligations accepted under the international agreement and contrary local laws provide no excuse.

A Communications to the Human Rights Committee

The right to make individual applications to the Human Rights Committee under the Optional Protocol to the ICCPR is a significant mechanism for enforcing human rights and has been employed by indigenous peoples. Under article 2, ‘individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.’ The proceeding is not in any sense a judicial determination. All meetings are closed and the Committee’s views are not enforceable against the state. Rather, the Committee’s findings are sent to the state and individual concerned, and are published in the Annual Report to the General Assembly of the United Nations.

The Human Rights Committee is hampered by a heavy case-load and has been strict in its interpretation of the exhaustion of domestic remedies rule[212] and cautious in its development of jurisprudence. Moreover, a communication to the Human Rights Committee is an individual claim in relation to predominantly individual, not group, rights. The ICCPR has not, for these reasons, been an ideal treaty through which to develop international legal norms for indigenous peoples. Nonetheless, as the findings of the Human Rights Committee demonstrate, it has employed article 27 to protect traditional land use by indigenous peoples; this despite the fact that article 27 is concerned primarily with individual rights. There is also scope to develop the right of all peoples to self-determination guaranteed by article 1 of the ICCPR.[213]

The significance of the Optional Protocol for Australia’s indigenous people is that, where they cannot protect their rights and interests under domestic law, they can communicate with the Human Rights Committee alleging that certain rights protected by the ICCPR have been violated. The amended Native Title Act, particularly in its cumulative effect on international and common law rights to consultation and recognition of native title, appears to violate articles 1, 2(1), 20 and 27 of the ICCPR.

B Racial Discrimination Convention

Under article 14 of the Racial Discrimination Convention, Australia has recognised the competence of CERD, (comprising 18 experts elected by the state parties), to consider communications from individuals and groups of individuals claiming to be victims of a violation of the Convention.[214] The procedures, powers and functions of this CERD are similar to those of the Human Rights Committee under the ICCPR. In particular, it will be necessary to exhaust any domestic remedies provided through the Racial Discrimination Act and the role of the HREOC.

Jurisprudence on racial discrimination is being developed by the CERD through its annual report and findings in relation to specific communications. For example, in Yilmaz-Dogan v Netherlands[215] CERD considered the issue of judicial review in cases of alleged racial discrimination.

C Supervisory Roles of the Human Rights Committee and the Racial Discrimination Committee Reviewing National Reports

In addition to the right of individual communication, the Human Rights Committee and the Committee set up under the Racial Discrimination Convention, among others, have the power to review reports submitted to them by states parties. This provides another mechanism through which an international body can play a supervisory role in ensuring that human rights obligations are adequately met.

Under article 9(1) of the Racial Discrimination Convention, each party must submit biennial reports to CERD. In practice, CERD has decided to require comprehensive reports every four years, which are subsequently to be updated where relevant over the intervening time. CERD reports to the General Assembly of the United Nations annually and may make ‘suggestions and general recommendations’ based on its examination of national reports and any information received from the states. The national reports are examined by CERD at public hearings, at which government representatives may introduce the report and answer questions. In 1995, for example, 28 national reports were examined in this way. Nine such reports have been submitted by Australia thus far.[216] When considering Australia’s report in 1994, CERD requested information on the implementation of Mabo.[217] The recent decision by CERD followed a request to the Australian Government for information regarding the amendments to the original Native Title Act. Rejection of this decision by Australia cannot prevent further review and findings by CERD in the future.

Under article 40 of the ICCPR, states parties undertake to submit reports on the measures they have adopted giving effect to the rights recognised by the Covenant, on the progress made in enjoyment of those rights and on any difficulties in achieving implementation. Reports are to be made ‘whenever the Committee so requests’ and are given by the Secretary-General to the Committee for consideration and to make ‘such general comments as it may consider appropriate’ to the states concerned. Any comments may also be transmitted to the Economic and Social Council. The state may then submit to the Committee any observations. Finally, the Committee must submit an annual report on its activities to the General Assembly of the United Nations.

Australia has submitted two reports to the Human Rights Committee. The third, due in 1991, and the fourth, due in 1996, have not yet been submitted and, as a consequence, Australia has been named by the Human Rights Committee in its Annual Report to the General Assembly for failing to comply with its obligations.[218]

Under article 41 of the ICCPR, there is an optional procedure under which states can accept the competence of the Human Rights Committee to consider communications about its alleged violations of the Covenant. Australia accepted this procedure in 1993. State complaints against other states are rare in international human rights practice. The procedural capacity for states to complain does not, in any event, appear to be a fruitful way in which to make the situation of Australia’s indigenous peoples better understood by the international community.

D Representations to International Bodies by Non-Governmental Organisations

One avenue for international representation of indigenous peoples is through non-governmental organisations (‘NGOs’), which have standing before international institutions. Australia’s indigenous peoples have participated in NGO activities and have contributed to the Draft Declaration on the Rights of Indigenous Peoples of the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations.[219]

Participation in such work is productive in stimulating and contributing to evolving norms of international law. However, the opportunity to make a submission does not assist in determining, in the specific context of legislative acts, whether international treaties or customary law have been violated. Effective protection of indigenous peoples’ rights depends, rather, upon a procedure of communication to an international body with powers to make findings and seek rectification of breaches.

E Conclusions

The cumulative impact of the Native Title Amendment Act threatens many of the substantive rights guaranteed by the ICCPR, Racial Discrimination Convention and ILO Convention No 169, particularly the right to enjoy culture in community with others and substantive equality. The findings by CERD that the Native Title Amendment Act violates the Racial Discrimination Convention are indicative of the likely success of individual communications to other human rights bodies asserting that diminution of the right to consultation, negotiation and prior consent in relation to the use, management and development of native title land is prohibited by treaty and customary law.

The Human Rights Committee has already considered communications from Australians in relation to human rights issues other than indigenous peoples’ rights. It has reported that Australia was in breach of the ICCPR concerning Tasmania’s laws rendering homosexuality a criminal offence[220] and the lengthy detention by the Commonwealth of those seeking refugee status in A v Australia.[221] The response of the Australian Government to the Committee’s report in the homosexuality case[222] was to enact the Human Rights (Sexual Conduct) Act 1994 (Cth) prohibiting arbitrary interference with privacy (in respect of sexual conduct) under article 17 of the ICCPR. This speedy legislative reform demonstrates that the views of the Human Rights Committee can be effective in prompting government action to protect human rights. By contrast, it should be noted that the Attorney-General and Minister for Immigration and Multicultural Affairs issued a press release in response to A v Australia, stating that they did not accept the views of the Committee and that, as the Committee is not a court, it is for the Government to decide the issue for itself.[223]

Too much should not be built on the findings thus far of the Human Rights Committee as it has been cautious in the articulation of group or indigenous rights, particularly in the context of claims by individuals representing Canada’s indigenous tribes (known as the ‘first nations’).[224] However, the reports of the Committee in Kitok v Sweden[225] and Ominayak v Canada[226] provide grounds for claims based on article 27 of the ICCPR. The Committee has stressed the need for positive legal protection to ensure the effective participation of indigenous peoples in decisions that affect them, and has demonstrated a willingness to supervise compliance by states, particularly through their periodic reports.

Negative findings by the Human Rights Committee and CERD on the conformity of the Native Title Amendment Act with the ICCPR or Racial Discrimination Convention will have political and legal consequences. The relevant committee will report its views to the United Nations General Assembly that Australia is in breach of its international legal obligations. Australia is then bound to respond, explaining the reasons for the breach and describing any remedial action. Findings of breaches will strengthen the legal and political position of indigenous peoples in Australia and will attract international attention to any violation by Australia of international legal standards. Finally, the views of these Committees may stimulate further development of the substantive content of native title and of indigenous peoples’ rights and interests in land.


[*] LLB (Melb), LLM (SMU), PhD (Melb); Barrister and Solicitor of the Supreme Court of the State of Victoria; Professorial Fellow, Law School, The University of Melbourne. This paper was stimulated by an opinion prepared for the Aboriginal and Torres Strait Islander Commission (‘ATSIC’). The author is grateful for the comments of Professor Garth Nettheim, Dr Sarah Pritchard, Mr Shane Hoffman and Mr Greg Marks, and for the research assistance of Mr James Clark.

[1] CERD, Findings on the Native Title Amendment Act 1998 (Cth), UN Doc ERD/C/54/Misc.40/

Rev.2 (18 March 1999) [7].

[2] Opened for signature 7 March 1966, 660 UNTS 195, 5 ILM 352 (entered into force 4 January 1969). As at 1 April 1999, there were 148 state parties (‘Racial Discrimination Convention’).

[3] CERD, Findings on the Native Title Amendment Act 1998 (Cth), UN Doc ERD/C/54/Misc.40/

Rev.2 (18 March 1999) [6].

[4] Ibid [8].

[5] Ibid.

[6] See ‘Labor Proposes Inquiry After UN Race Decision’, Australian Associated Press (Newsfeed), 25 March 1999. See also Commonwealth of Australia, Australian Government Response to the United Nations Committee on Racial Discrimination Request for Information under Article 9 Paragraph 1 of the Convention on the Elimination of All Forms of Racial Discrimination (1999) (‘Government Response’). On 9 July 1999, the Australian Government commented on the views of CERD and expressed its ‘disappointment’ that there had been an ‘unfortunate omission of relevant material from the Committee’s report.’ The Government’s response is less a legal response than one which attempts to explain its policy of achieving closer parity between the rights of respective parties. No attempt is made to challenge the primary finding of CERD that there are respects in which the amendments do not comply with art 2 of the Racial Discrimination Convention. On 16 August CERD reinforced its findings of March 1999, and reiterated the need for Australia to address the issues relating to the Native Title Amendment Act before it appears before CERD in March 2000.

[7] Note the view of Brennan J (Mason CJ and McHugh J concurring) that ‘the opening up of international remedies to individuals pursuant to Australia’s accession to the [First] Optional Protocol to the ICCPR brings to bear on the common law the powerful influence of the Covenant and the international standards it imports’: Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 42 (‘Mabo’). See, eg, Toonen v Australia: United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 488/1992, UN Doc CCPR/C/50/D/488 (1994). But see the United Nations Economic Social and Cultural Organisation’s World Heritage Committee views regarding the Jabiluka uranium mine: ‘Kakadu is Not in Danger’, The Age (Melbourne), 13 July 1999, 1 and <http://www.biodiversity.environment.gov.au/kakadu> .

[8] Many provisions commenced on 30 September 1998. The remainder commenced on 30 October 1998.

[9] The success of such a challenge is uncertain but note the comments by Dennis Rose, ‘The 10-Point Plan – Its Constitutional Validity’ (1998) 17 Australian Mining and Petroleum Law Journal 216.

[10] See, eg, Michael Dodson, ‘Linking International Standards with Contemporary Concerns of Aboriginal and Torres Strait Islander Peoples’ in Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998) 18.

[11] See, eg, Fisheries Jurisdiction Case (UK v Iceland; FRG v Iceland) (Merits) [1974] ICJ Rep 3; Ivan Shearer, Starke’s International Law (11th ed, 1994) 36.

[12] GA Res 217A, 3 UN GAOR (183rd plen mtg), UN Doc A/Res/217A (1948) (‘Universal Declaration’).

[13] Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). As at 1 January 1995, there were 131 states parties.

[14] Opened for signature 27 June 1989, 28 ILM 1382 (entered into force 5 September 1991) (‘ILO Convention No 169’).

[15] Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/1995/2, E/CN.4/Sub.2/1994/56 (1994); 34 ILM 541.

[16] See generally Pritchard (ed), above n 10; S James Anaya, Indigenous Peoples and International Law (1996); Gillian Triggs, ‘The Rights of Peoples and Individual Rights: Conflict or Harmony?’ in James Crawford (ed), The Rights of Peoples (1988) 141.

[17] Opened for signature 16 December 1966, 993 UNTS 3, 6 ILM 360 (entered into force 3 January 1976).

[18] The Human Rights and Equal Opportunity Commission Act 1996 (Cth) has scheduled to it a number of human rights instruments to which Australia is a party, along with some UN resolutions. The work of the Commission is to achieve progressive implementation of the rights these instruments guarantee.

[19] Racial Discrimination Convention, above n 2, art 5(v) and (vi).

[20] The American Law Institute, Restatement of the Law (3rd): The Foreign Relations Law of the United States (1987) vol 2, [702]. For a discussion of the concept of jus cogens, see Shearer, above n 11, 48–50.

[21] Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (1997) 124–30.

[22] CERD, Decision 1(53) on Australia, UN Doc A/53/18 (11 August 1998), based on art 9 of the Racial Discrimination Convention.

[23] Government Response, above n 6, 11.

[24] Amended Native Title Act s 7. Concerns have been expressed that s 7 could have the effect of undermining the constitutional basis of the Racial Discrimination Act. See John Basten in his evidence to the Commonwealth Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 27 November 1996, cited in ATSIC, Aboriginal and Torres Strait Islander Peoples and Australia’s Obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination: A Report to the UN Committee on the Elimination of Racial Discrimination (1999) (‘ATSIC Submission to CERD’) [4.1.10(e)].

[25] Commonwealth of Australia, Draft 10th, 11th and 12th Report under the Convention for the Elimination of All Forms of Racial Discrimination for Period 1 July 1992 to 30 June 1998 (1998) (‘Draft Report to CERD’).

[26] Ibid [307].

[27] Ibid [308].

[28] See above n 24.

[29] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, 8 ILM 679, art 27 (entered into force 27 January 1980). As at 1 January 1995, there were 76 states parties.

[30] (1996) 187 CLR 1 (‘Wik’).

[31] Amended Native Title Act pt 2, div 2A.

[32] Amended Native Title Act s 23B.

[33] Amended Native Title Act s 24MD(2).

[34] Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to Senate Legal and Constitutional Legislation Committee in Relation to the Hindmarsh Island Bridge Bill (29 November 1996), cited in ATSIC Submission to CERD, above n 24, [4.1.11].

[35] Ibid.

[36] Michael O’Flaherty, ‘Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination’ in Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998) 162, 171.

[37] [1985] HCA 11; (1985) 159 CLR 70. See also Sarah Pritchard, ‘Special Measures’ in Race Discrimination Commissioner (ed), Racial Discrimination Act: A Review (1995) 183; and Wojciech Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination: Reflections on the Landmark Case that Wasn’t’ [1986] SydLawRw 2; (1986) 11 Sydney Law Review 5.

[38] Note the views of Garth Nettheim, ‘The International Implications of the Native Title Act Amendments’ [1998] IndigLawB 16; (1998) 4(9) Indigenous Law Bulletin 12, 13.

[39] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 483–4 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) (‘Native Title Act Case’).

[40] [1935] PCIJ (ser A/B), No 64, 19.

[41] (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6, 303–4.

[42] CERD, General Recommendation XIV on Article 1 of the Convention (42nd session, 1993) in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) 67.

[43] Rose, above n 9, 225.

[44] [1995] HCA 47; (1995) 183 CLR 373, 488–91 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), 495 (Dawson J).

[45] [1998] HCA 22; (1998) 152 ALR 540 (‘Hindmarsh Island Bridge Case’). The majority held that the Hindmarsh Island Bridge Act 1997 (Cth) was not invalid on any head of Commonwealth power. For a discussion of this case, see generally Alexander Reilly, ‘Reading the Race Power: A Hermeneutic Analysis’ [1999] MelbULawRw 19; (1999) 23 Melbourne University Law Review 476.

[46] Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 566–9.

[47] Rose, above n 9, 219–20.

[48] Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 596–8.

[49] Ibid 593.

[50] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

[51] Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 601.

[52] Ibid 583.

[53] Original Native Title Act pt 2, div 2.

[54] Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 583.

[55] See amended Native Title Act divs 2A, 2B and 3 for all adverse effects on native title, except those voluntarily accepted under agreements provided for under the Native Title Amendment Act and ‘low impact’ acts uncompensated under the original Native Title Act.

[56] Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 558–9. However, on the facts, her Honour found that the amendments remained laws for the ‘protection and preservation of areas and objects of significance in accordance with Aboriginal tradition’: at 560.

[57] Ibid 557–8. It remains to be seen whether this test will attract other adherents on the High Court.

[58] Ibid 568. This reflects the maxim ‘what Parliament can enact it may repeal’: R v Public Vehicles Licensing Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207, 226.

[59] Kirby J argued, by contrast, that parliamentary sovereignty ‘cannot be sustained in the face of a constitutional provision that does not permit laws made to the detriment of, or which discriminate against, people by reference to their race’: Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 602.

[60] Ibid 569.

[61] Ibid 542–51.

[62] Gleeson CJ and Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

[63] See, eg, the debates concerning the Draft Declaration on the Rights of Indigenous Peoples in the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations: UN Doc E/CN.4/Sub.2/1996/21; Anaya, above n 16, 86. Attempts to submit communications based on art 1 to the Human Rights Committee have been unsuccessful: Special Rapporteur Erica-Irene Daes, ‘Working Paper on the Fifty-Ninth Session of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities: Indigenous Peoples and Their Relationship to Land’ (1997) 2 Australian Indigenous Law Reporter 564.

[64] See the discussion of the various forms of self-government for indigenous peoples in the United States, Canada, Scandinavia and elsewhere in Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (1997) 146–57. For the adoption of the policy of self-determination in Australia after the election of the Labor Government in 1972, see a 1973 speech by Prime Minister Gough Whitlam that government policy ‘is to restore to the Aboriginal people of Australia the lost power of self-determination in economic, social and political affairs’: Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (1997) 55.

[65] Elizabeth Evatt, for example, accepts that ‘the rights protected by art 27 apply to indigenous people’: Elizabeth Evatt, ‘Individual Communications under the Optional Protocol to the International Covenant on Civil and Political Rights’ in Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998) 114.

[66] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988).

[67] Ibid.

[68] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 167/1984, UN Doc A/45/40 (1990) vol 2, 1.

[69] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 511/1992, UN Doc CCPR/C/52/0/511/1992 (1993); [1996] AUIndigLawRpr 17; (1996) 1 Australian Indigenous Law Reporter 154.

[70] Ibid [9.8].

[71] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 24/1977, UN Doc A/36/40 Annex 18 (1977); (1981) 2 Human Rights Law Journal 158.

[72] United Nations Human Rights Committee, General Comment No 23 on Article 27 of the Covenant, UN Doc CCPR/C.21/Rev.1/Add.5 (1994) [7]. See also Douglas Saunders, ‘Collective Rights’ (1991) 13 Human Rights Quarterly 368, 379–80.

[73] CERD, General Recommendation XXIII Concerning Indigenous Peoples, UN Doc CERC/C/51/Misc.13/Rev.4 (1997).

[74] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 549/1993, UN Doc CCPR/C.60/D/549/1993/Rev.1 (1997).

[75] Ibid [11].

[76] Ibid [10.3].

[77] Ibid [12].

[78] Ibid [11].

[79] For recent developments in Australian law regarding native title sea rights, see Yarmirr v Northern Territory [1998] FCA 771; (1998) 82 FCR 533.

[80] See below Part III.

[81] Case Concerning East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90.

[82] See discussion of the methodology of the Australian courts in determining the international rule in Polyukhovich v Commonwealth (1991) 122 CLR 501 in Gillian Triggs, ‘Australia’s War Crimes Trials: All Pity Choked’ in Timothy McCormack and Gerry Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 123.

[83] See below Part III.

[84] Opened for signature 26 June 1957, 328 UNTS 247 (entered into force 2 June 1959) (‘ILO Convention No 107’).

[85] ILO Convention No 169, above n 14.

[86] See also ILO Convention No 169, above n 14, art 14(2) and (3).

[87] Ibid art 7(1).

[88] Ibid art 15.

[89] Anaya, above n 16, 49–58.

[90] United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, Discrimination Against Indigenous Peoples: Report of the Working Group on Indigenous Populations on Its Twelfth Session, UN Doc E/CN.4/Sub.2/1994/30 (46th session, 1994) agenda 5.

[91] It also confirms other existing rights such as the right to self-determination under art 3.

[92] Agenda 21: United Nations Program of Action for Sustainable Development, Report of the United Nations Conference on Environment and Development (Rio de Janiero, 3–14 June 1992), UN Doc A/CONF.151/26 (vol I-III), 16, Annex 2 (1992).

[93] Rio Declaration, UNCED Doc A/Conf.151/5/Rev.1 (1992); 31 ILM 874.

[94] Convention on Biological Diversity, opened for signature 5 June 1992, [1993] ATS No 32, 31 ILM 818 (entered into force 29 December 1993) (‘Biological Diversity Convention’).

[95] Opened for signature 12 June 1976, [1990] ATS No 41 (entered into force 26 June 1990).

[96] Ibid art 6.

[97] Action Plan for Managing the Natural Resources and Environment of the South Pacific Region, adopted at Rarotonga, Cook Islands, 11 March 1982, as discussed in Anthony Bergin, ‘International Law and Indigenous Marine Rights: The Evolving Framework’ (1993) 10 Environmental and Planning Law Journal 438, 446. See also Anthony Bergin, ‘Marine Policy in the South Pacific: SPREP Moves into the 1990s’ (1992) 17 Ocean and Coastal Management 92.

[98] Statute of the International Court of Justice art 38. There are several decisions by the courts of New Zealand, Canada and the United States, for example, which have recognised and developed the rights of indigenous peoples in the land.

[99] See, eg, Mabo [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J; Mason CJ and McHugh J concurring).

[100] (Advisory Opinion) [1975] ICJ Rep 12.

[101] [1997] 3 SCR 1010; 153 DLR (4th) 193 (‘Delgamuukw’). A full analysis of this case, including issues of proof, nature and extinguishment of native title is provided by Robert Blowes, Delgamuukw v British Columbia (1998).

[102] Delgamuukw [1997] 3 SCR 1010, 1081; 153 DLR (4th) 193, 242 (Lamer CJ).

[103] Ibid 1111–14; 263–6 (Lamer CJ).

[104] Ibid 1113; 265 (Lamer CJ). When assessing the persuasive value of these statements in Australian law, it will be recalled that Brennan CJ in Wik stated that the vulnerability of native title to extinguishment by an exercise of power by the Crown, and the position occupied by indigenous people in relation to the government of a State, does not ‘create some free-standing fiduciary duty’: (1996) 187 CLR 1, 95. Rather, some action or function that attracts the duty must be identified. His Honour suggests, however, that a discretionary power conferred on the Crown by statute or common law, to be exercised for the benefit of another, may give rise to a fiduciary obligation. Kirby J, when considering the presumption against expropriation of property without compensation in Wik, also appears to support the concept of a duty owed by the Crown, in honour, to native people who are under the Crown’s protection: (1996) 187 CLR 1, 248.

[105] The language, concepts and methodology of international law are markedly different from Australian law. When referring to international law to assess the validity of the Native Title Amendment Act, it will be necessary to translate general international principles into the specific domestic context. For example, the right to consult at international law can be equated with the RTN under the Native Title Act, although ‘consultations’ might range from consent to minimal notice.

[106] See, eg, North Sea Continental Shelf Case (FRG v Denmark; FRG v The Netherlands) (Judgment) [1969] ICJ Rep 3.

[107] There is, eg, a legal policy that municipal law should conform to international law: Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68–9 (Latham CJ); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J) (‘Teoh’).

[108] Cachia v Hanes (1991) 23 NSWLR 304, 313. See also Kirby P in Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262, 273 and Justice Michael Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes’ [1993] UNSWLawJl 15; (1993) 16 University of New South Wales Law Journal 363.

[109] (Advisory Opinion) [1975] ICJ Rep 12.

[110] Mabo [1992] HCA 23; (1992) 175 CLR 1, 42.

[111] See, eg, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 74 (McHugh J).

[112] [1995] HCA 20; (1995) 183 CLR 273.

[113] Ibid 291–2 (Mason CJ and Deane J).

[114] Gummow and Hayne JJ examined the relevance of international legal principles to the common law and legislation. While they accepted that legislation is to be interpreted and applied in conformity, and not in conflict, with any relevant established rules of customary international law, they concluded on the facts that there was no ambiguity and therefore there was no scope for the application of any contrary international rule: Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 152 ALR 540, 571–3. The question of the incorporation of a norm of international law thus becomes one of deciding whether there is any scope for finding ambiguity in the relevant legislation.

[115] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 305 (Mason CJ and McHugh J), 318 (Brennan J), 347–9 (Dawson J), 359–60 (Toohey J).

[116] Ivan Shearer, ‘The Relationship Between International Law and Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (1997) 34, 55–7.

[117] Opened for signature 20 November 1989, 1588 UNTS 530, 28 ILM 1448 (entered into force 2 September 1990).

[118] [1992] HCA 23; (1992) 175 CLR 1.

[119] CERD, Findings on the Native Title Amendment Act 1998 (Cth), UN Doc ERD/C/54/Misc.40/

Rev.2 (18 March 1999) [6].

[120] [1995] HCA 10; (1995) 183 CLR 245 (‘Brandy’).

[121] (1995) 59 FCR 332 (‘Lane’).

[122] Wik (1996) 187 CLR 1, 133 (Toohey J, with the concurrence of Gaudron, Gummow and Kirby JJ).

[123] Ibid.

[124] See generally Commonwealth Attorney-General’s Department, Legal Implications of the High Court Decision in the Wik Peoples v Queensland: Current Advice (23 January 1997); Department of Prime Minister and Cabinet, Amended Wik 10 Point Plan (9 May 1997); Department of Prime Minister and Cabinet, Wik: The 10 Point Plan Explained (5 June 1997). Each of these sources may be viewed at <http://www.dpmc.gov.au/indeg_index.html> .

[125] According to the ‘freehold test’, governments cannot generally undertake acts on land where native title exists if those acts could not be done over freehold land.

[126] Government Response, above n 6, 5. In addition to Mabo, there have been other judicial determinations of native title, including three consent orders in favour of the Dunghutti people at Crescent Head, NSW north coast, the people of Hopevale in North Queensland, and the Western Yalanje people, also of North Queensland: see Draft Report to CERD, above n 25, [312]. Note that as at 31 October 1998, there were 3702 applications lodged with the NNTT, including 878 native title determination applications: Draft Report to CERD, above n 25, [311].

[127] Rose, above n 9, 216.

[128] Amended Native Title Act s 61.

[129] Amended Native Title Act s 22F (acts attributable to States and Territories) and s 22A (acts attributable to the Commonwealth).

[130] Amended Native Title Act ss 24GA24GC.

[131] Amended Native Title Act ss 24GD, 24GE.

[132] Amended Native Title Act ss 190A190D.

[133] Government Response, above n 6, 10.

[134] Amended Native Title Act s 24MD(6), (6A), (6B).

[135] Amended Native Title Act ss 26A26C, 43A.

[136] Amended Native Title Act ss 23B, 23C and 23E.

[137] Amended Native Title Act s 23J.

[138] Amended Native Title Act s 47A.

[139] Amended Native Title Act s 47B.

[140] Amended Native Title Act s 47.

[141] Amended Native Title Act div 3(B)–(E).

[142] Amended Native Title Act ss 24HA, 24JB, 24KA.

[143] Amended Native Title Act s 207B.

[144] Amended Native Title Act s 7, but see above nn 2433 and accompanying text.

[145] Amended Native Title Act s 24MD.

[146] Mabo [1992] HCA 23; (1992) 175 CLR 1, 64 (Brennan J), 111 (Deane and Gaudron JJ), 195 (Toohey J).

[147] (1996) 187 CLR 1, 128–9 (Toohey J), 155–6 (Gaudron J), 186–90 (Gummow J).

[148] Amended Native Title Act s 23B.

[149] Amended Native Title Act s 23B(2).

[150] Government Response, above n 6, 7.

[151] Amended Native Title Act s 23E.

[152] [1998] FCA 1478; (1998) 159 ALR 483 (on appeal by Western Australia and the Northern Territory).

[153] Native Title (Queensland) State Provisions Act (No 1) 1998 (Qld).

[154] Amended Native Title Act s 23J. Note that s 23(3) of the original Native Title Act provided that compulsory acquisition did not necessarily extinguish native title but allowed any act done in giving effect to the purpose of the acquisition to extinguish native title and left open the possibility that native title rights might not be extinguished if the purpose did not proceed. Now s 24MD(2) provides that extinguishment occurs.

[155] Amended Native Title Act pt 2, div 2B.

[156] Amended Native Title Act pt 2, div 2A.

[157] See generally ATSIC Submission to CERD, above n 24, [4.1.11].

[158] Amended Native Title Act ss 24GA24GE.

[159] Amended Native Title Act s 24GD(4) refers to ‘an entitlement to compensation for the act in accordance with Division 5.’

[160] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 167/1984, UN Doc A/45/40 (1990) vol 2, 1.

[161] Amended Native Title Act s 24MD(2).

[162] Amended Native Title Act s 24MD(2)(ba) provides that ‘the practices and procedures adopted in acquiring the native title rights or interests’ should not cause ‘native title holders any greater disadvantage than is caused to the holders of non-native title interests when their rights and interests are acquired.’

[163] Amended Native Title Act s 24HA.

[164] Amended Native Title Act ss 24AB, 24GB, 24KA. A ‘future act’ is defined by s 233. See s 24MD(2)(ba), above n 162, for the ‘no greater disadvantage’ test.

[165] Amended Native Title Act s 44B(5).

[166] See text accompanying above n 71.

[167] Original Native Title Act ss 2644.

[168] Original Native Title Act s 29.

[169] Original Native Title Act ss 28, 31.

[170] Original Native Title Act ss 35, 38.

[171] Original Native Tile Act s 42.

[172] Original Native Title Act s 32.

[173] Amended Native Title Act pt 2, div 3.

[174] Merrilee Garnett and David Ritter, ‘The Application and Operation of the Right to Negotiate’ (1998) 17 Australian Mining and Petroleum Law Journal 284, 292.

[175] Amended Native Title Act s 24MD(6A).

[176] Amended Native Title Act pt 2, divs 2A and 2B.

[177] Amended Native Title Act s 26(1)(c)(iii)(B).

[178] Amended Native Title Act s 24MD(6B).

[179] Amended Native Title Act s 26(3).

[180] Amended Native Title Act s 26D.

[181] Amended Native Title Act s 26A(3).

[182] Amended Native Title Act s 26(2)(f), 26(3).

[183] Amended Native Title Act s 26B.

[184] Amended Native Title Act s 26C(2).

[185] The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) states that this amendment adopts the Federal Court decision in Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, so that if an act interferes with a native title claimant’s physical ability to enjoy rights such as hunting, fishing or conducting religious ceremonies, then the expedited procedure will not apply: Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) [20.38].

[186] Amended Native Title Act s 28.

[187] Amended Native Title Act s 24FC.

[188] Amended Native Title Act pt 2, div 3(G)–(K).

[189] Amended Native Title Act s 190B.

[190] Amended Native Title Act s 190B(7).

[191] Amended Native Title Act s 36A.

[192] Amended Native Title Act s 24EB.

[193] Rose, above n 9, 227.

[194] General Recommendation XXIII, above n 73.

[195] CERD, Findings on the Native Title Amendment Act 1998 (Cth), UN Doc ERD/C/54/Misc.40/

Rev.2 (18 March 1999) [9].

[196] Government Response, above n 6, 10.

[197] Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Island Fund (Submission 36A, 4 October 1996) 1, cited in ATSIC Submission to CERD, above n 24, [4.1.11(d)].

[198] Mabo [1992] HCA 23; (1992) 175 CLR 1, 58.

[199] ATSIC Submission to CERD, above n 24, [4.1.10(d)].

[200] [1998] HCA 22; (1998) 152 ALR 540, 565–6.

[201] Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 242.

[202] Amended Native Title Act pt 2, div 3.

[203] The Biological Diversity Convention, above n 94, is now the subject of the Environment Protection and Biological Diversity Act 1999 (Cth).

[204] See above n 82, and above nn 105110 and accompanying text.

[205] See, eg, Evatt, above n 65.

[206] Annex to GA Res 2200, 21 UN GAOR (1498th plen mtg), UN Doc No A/Res.2200; 999 UNTS 302. The Optional Protocol came into force for Australia on 25 September 1991: see [1991] ATS No 39.

[207] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 23 ILM 1027 (entered into force 26 June 1987). Australia accepted the individual complaints procedure under the Optional Protocol to this treaty in January 1993: see [1989] ATS No 21.

[208] For a discussion of the local remedies rule, see generally Ambatielos Claim (Greece v UK) (1956) 12 RIAA 83; 23 ILR 306.

[209] (First) Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 302, art 4(1) (entered into force 23 March 1976).

[210] Ibid art 4(2).

[211] Ibid art 6.

[212] See, eg, Evatt, above n 65.

[213] Though note that the opportunity to do so was rejected in Ominayak v Canada: United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 167/1984, UN Doc A/45/40 (1990) vol 2, 1.

[214] Twenty-three States Parties to the Racial Discrimination Convention have accepted the procedures under art 14.

[215] CERD Report, GAOR, Supp 18, 59 (1988); UN Doc A/43/18, Annex IV (1988).

[216] A report by the Australian Government covering the period 1 July 1992 to 30 June 1998 is currently being drafted and is available for comment.

[217] O’Flaherty, above n 36, 173.

[218] The third and fourth reports were due respectively on 12 November 1991 and 12 November 1996. At its 51st session, the Human Rights Committee expressed concern that many states were in default on their reporting obligations: O’Flaherty, above n 36, 200.

[219] See, eg, the interventions made by Lois O’Donoghue, Chairperson of ATSIC, at the 13th session of the United Nations Working Group on Indigenous Populations, 24–28 July 1995 <http://www.atsic.gov.au> . Two Australian indigenous peoples’ organisations have NGO status with the United Nations Economic and Social Council.

[220] Toonen v Australia: United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 488/1992, UN Doc CCPR/C/50/D/488 (1994).

[221] United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).

[222] Toonen v Australia: United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 488/1992, UN Doc CCPR/C/50/D/488 (1994).

[223] Daryl Williams (Attorney-General) and Phillip Ruddock (Minister for Immigration and Multicultural Affairs), Australian Government Responds to the United Nations Human Rights Committee, Press Release (17 December 1997) 2.

[224] See above nn 7179.

[225] See text accompanying above n 66.

[226] See text accompanying above n 68.