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Nettheim, Garth --- "The International Implications of the Native Title Act Amendments" [1998] IndigLawB 16; (1998) 4(9) Indigenous Law Bulletin 12

The International Implications of the Native Title Act Amendments

By Garth Nettheim

The Bill to amend the Native Title Act 1993 (Cth) (the ‘NTA ‘) was amended in the Senate late in 1997 in terms which the Government, and the House of Representatives, held unacceptable. The Government intends to re–introduce the Bill in March.

Amendments to the NTA[1] are primarily a matter for political and legislative processes within Australia. But it may be helpful to those processes to set particular proposals within the context of international law standards. Those international law standards fall within four main groupings:

  • Property rights;
  • Cultural rights;
  • Participation rights;
  • Equality rights.

Property rights

The Universal Declaration of Human Rights Article 17 states:

‘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.’

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) has been ratified by Australia. Article 5 requires equality before the law, without distinction as to race, colour, or national or ethnic origin, in the enjoyment of various rights, including:

‘(d) (v) The right to own property alone as well as in association with others.

(vi) The right to inherit.’

Clearly, native title rights and interests are covered by these standards. On 18 August 1997 the Committee on the Elimination of Racial Discrimination published its interpretation of the Convention in relation to Indigenous Peoples as General Recommendation XXIII(51). In paragraph 5 the Committee said:

‘The Committee especially calls upon States parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such comensation should as far as possible take the form of lands and territories.’

The High Court in Mabo [No.1] held invalid a 1985 Queensland Act to extinguish native title in the Torres Strait on the basis that it offended the RDA by reference to these provisions.[2]

The amendment proposals, to the extent that they extinguish or displace native title, and do so on a discriminatory basis, would infringe these standards. So would proposals making it more difficult to achieve recognition of native title.

Cultural rights

The International Covenant on Civil and Political Rights (ICCPR) has been ratified by Australia. Article 27 states:

‘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 practice their own religion, or to use their own language.’

The Convention on the Rights of the Child, also ratified by Australia, contains parallel language in Article 30 specifically for children, and extended so as to expressly include Indigenous people.

Does Indigenous culture relate to land? The Coalition parties accepted that it does in their 1996 election policy on Aboriginal and Torres Strait Islander Affairs. The Coalition approach to Aboriginal land rights was said to be based on several considerations including ‘the special relationship between Indigenous people and land which is at the core of Indigenous culture’.

The Human Rights Committee oversees implementation of the ICCPR by States. In its 1995 General Comment on Article 27 it said:

‘...[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 means of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.’

The Human Rights Committee has also stated that Article 27 applies to the use of land and resources by Indigenous peoples in the context of a number of communications brought to the committee under the first Optional Protocol to the ICCPR (eg Kitok v Sweden (1988); Ominayak v Canada (1990); Lansman v Finland (1993)).

The proposed amendments to the NTA which would extinguish native title, and those that would diminish the ‘right to negotiate’ processes, would both appear to adversely affect the cultural rights of native title holders.

Participation rights

The extract quoted from the Human Rights Committee’s 1995 General Comment referred to the need for ‘measures to ensure the effective participation of members of minority communities in decisions which affect them’.

There are a number of other bases which support the proposition. The broadest is the right of self–determination.

Self–determination of peoples is one of two human rights principles to receive specific mention in the United Nations Charter. (The other is the principle of equality and non–discrimination on the basis of race, sex, language or religion, see below).

The principle of self–determination receives its most authoritative expression in common Article 1 in the two Covenants—the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR):

‘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...’

This formulation raises not only the issue of choice of political status but also the economic and cultural dimensions of a people’s territory which is put in issue by proposals to extinguish native title and proposals to deprive native title holders of the ‘right to negotiate’.

Article 25 of the ICCPR contains a general right of public participation focussing largely on such issues as elections and access to public office. But a number of quite recent international instruments provide specifically for Indigenous peoples to participate in decisions as to the use and management of land and resources: the United Nations Earth Summit, Agenda 21; the UN Convention on the Conservation of Biological Diversity; and the Rio Declaration on Environment and Development.

Two instruments which have been developed—or are under development—relating specifically to Indigenous peoples, expressly require the involvement of Indigenous peoples in resource development decisions. The International Labour Organization Convention No 169 concerning Indigenous and Tribal People in Independent Countries (1989) has not yet been ratified by Australia. Article 15 in particular provides:

‘1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be especially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

2. In cases in which the State retains the ownership of mineral or sub–surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.’

The right to negotiate (RTN) provisions of the NTA correspond approximately to these standards. A higher standard appears in the UN Draft Declaration on the Rights of Indigenous Peoples, currently under consideration by a Working Group of the UN Commission on Human Rights. In particular, Article 30 states:

‘Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.’

Pursuant to agreement with the Indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, social, cultural or spiritual impact.

Proposals to eliminate and/or reduce the ‘right to negotiate’ provisions of the NTA cut directly across these standards.

Equality rights

As mentioned, the UN Charter requires respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. (Article 1(3), 55(c)).

The Universal Declaration of Human Rights develops the principle in Article 2:

‘Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status...’

Article 7 of the Universal Declaration of Human Rights is also relevant:

‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.’

The two Covenants (ICCPR, ICESCR) both spell out the obligations on State Parties in Article 2 which, in each case, preclude distinction or discrimination ‘of any kind such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status’.

The ICCPR Article 26 also provides as follows:

‘All persons are equal before the law and are entitled without any discrimination to the equal

protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

The entire purpose of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is, of course, to develop the broad principle of non–discrimination on the basis of race and to set forth a range of obligations on States Parties, both in general, and in relation to specific human rights (eg the right to property). The Convention also makes it clear that all distinctions on the basis of race are not necessarily forbidden; in some circumstances ‘special measures’ to overcome disadvantage are permitted (Article 1(4)) and may even be required (Article 2(2)).

There is a strong body of opinion that the principle against discrimination on the basis of race has become a principle of customary international law, independently of any specific treaty obligations.

Does the non–discrimination principle require only formal equality of treatment? Or may there be an obligation to provide additional levels of protection for particular groups? Reference has been made to the provisions of ICERD Article 1(4) and 2(2) as to special measures for the purpose of overcoming disadvantage—such special measures will not constitute ‘discrimination’ for the purposes of the Convention. The Human Rights Committee under ICCPR has made the same point in its General Comment 18 on the principle of non–discrimination; in addition,

‘...not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.’

Similarly the Committee on the Elimination of Racial Discrimination under ICERD, in General Recommendation XIV on Article 1(1) observed

‘...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 affect 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.’

May the reduction of additional rights given to members of a racial group offend non–discrimination and equality principles? Government officials have stated that the right to negotiate regime is an additional right that non–Indigenous Australians generally do not have, in relation to mining activity and compulsory acquisitions; accordingly its reduction or elimination will not offend non–discrimination principles.

However, the relationship of Indigenous peoples to their land is of a qualitatively different nature from the relationship of non–Indigenous peoples to land so that it requires differential treatment in order to achieve substantive equality of outcome. This proposition has been accepted in a series of Australian inquiries into land rights legislation. It has also been accepted in international law.

The issue is not solely to do with principles of non–discrimination. It relates to equality rights generally, and, to the specific rights of ethnic minorities and Indigenous peoples.

True equality requires measures (a) to ensure that members of racial minorities are placed in every respect on a footing of perfect equality with other citizens and (b) to ensure for the minority means for the preservation of their particular characteristics and traditions. This was decided as long ago as 1935 by the Permanent Court of International Justice in its Advisory Opinion on Minority Schools in Albania. The need for differential treatment to protect the basic and distinguishing characteristics of minorities has been reiterated on a number of subsequent occasions, for example the judgment of Judge Tanaka in the 1966 South West Africa Case in the International Court of Justice.[3]

How are the right to negotiate (RTN) provisions of the NTA to be regarded? The RTN procedures have been said to represent a modified version of the need, under Indigenous law, for consent to enter on Aboriginal or Torres Strait Islander land. It also represents a limited procedural protection for the equality rights of Indigenous peoples. The RTN processes can also be characterised as a necessary consequence of Indigenous rights of participation in decisions which affect them.

Conclusion

In conclusion, then, there are strong bases in international law for reconsidering the proposed amendments to the NTA, including the 10 Point Plan. There is also scope for reconsideration. Any problems with the NTA and any problems arising from the Wik decision are perfectly capable of being met, so as to accommodate the interests of all stake holders—pastoralists, miners, governments and Indigenous Australians. There is simply no need for the massive cut–back of Indigenous peoples’ rights that are being proposed.[4]

All of this represents sufficient reason to reconsider the entire amendment package and to start again with a legislative design based on genuine negotiation.

International processes. If the present scheme—or something similar to it—goes ahead and becomes legislation, there are possible international fora where Australia’s breach of international human rights standards may be raised.

Treaty reports. Under a number of treaties Australia is obliged to provide periodic reports to the relevant monitoring committee. Particularly relevant are the Human Rights Committee under the ICCPR and the Committee on the Elimination of Racial Discrimination under ICERD.

Treaty communication. Under both ICCPR and ICERD Indigenous Australians are also entitled to send ‘Communications’ to the respective committees. After inviting Australia’s response to such communications both committees can formulate their conclusions as to any allegations of breaches of treaty standards.

Under neither process can the treaty committee override Australian law. But any concluded view that Australia is in breach of its obligations under international law would create some political embarrassment.

UN processes. Apart from these treaty processes it would be open to Indigenous peoples’ organisations to raise their concerns about the proposed legislation before the United Nations Working Group on Indigenous Populations.

They would also be able to draw these developments to the attention of UN Special Rapporteurs—notably, the Special Rapporteur on Racism, Racial Discrimination and Xenophobia or the Special Rapporteur on Religious Intolerance.

These are relatively formal processes which could bring unfortunate international scrutiny to Australia.

But it is not even necessary for such processes to be set in motion to attract critical attention. The ‘native title debate’, like the ‘Hanson debate’, is already being reported in the media in other countries, particularly in our region. Like the ‘Hanson debate’, it is likely to adversely affect our economic position in relation to trade and investment.

Secondly, it is clearly preferable that such issues be settled within Australia rather than being subject to adverse international scrutiny. The international law standards should directly influence us to ensure that amendments to the NTA meet essential needs without involving serious violation of the human rights of Indigenous Australians.

And that result is achievable.

But not by the amendments as proposed to date.

Garth Nettheim is Emeritus Professor, Faculty of Law, University of NSW; Chairman, Indigenous Law Centre, University of NSW.

An earlier version of this paper was presented at the AIC Conference Working with the Native Title Act. The Political and Commercial Realities, 16–18 June 1997, Brisbane.


[1] Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report. July 1995–June 1996 (AGPS, 1996). See also Proposed Amendments to the Native Title Act 1993. Issues for Indigenous peoples (ATSIC, 1996); S Beckett ‘Workability in whose interest? the Native Title Amendment Bill 1996[1996] AboriginalLawB 60; (1996) 3(84) ALB 4; S Beckett ‘But wait...there’s more! Federal Government releases more amendments to the Native Title Act[1996] AboriginalLawB 90; (1996) 3(87) ALB 8; Jennifer Clarke ‘The Native Title Amendment Bill 1997’, (1997) 4 (6) ILB 4; Native Title Amendment Bill 1997. Issues for Indigenous peoples (ATSIC, October 1997); Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report July 1996–June 1997, Paul Burke, ‘The Native Title Amendment Bill: what happened in the Senate’ (1998) 4 (9) ILB 4.

[2] Mabo v Queensland [No 1] (1988) 166 CLR 186. See also Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.

[3] See also the report by Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (1979) and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992). See also General Comment (1995) of the Human Rights Committee on Article 27 of the ICCPR, and the 1996 General Recommendation XXI (48) of the Committee on the Elimination of Racial Discrimination on the internal aspect of the right of self–determination.

[4] G Nettheim ‘Nailing Down Native Title’ (1997) 4 (3) ILB 30.


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