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Marks, Greg --- "Australia, Indigenous Rights and International Law" [2006] IndigLawB 56; (2006) 6(22) Indigenous Law Bulletin 20


Australia, Indigenous Rights and International Law[1]

by Greg Marks

Indigenous issues in international law are often complex and difficult. This paper presents a case study from Australian experience which illustrates some of this complexity. It focuses on the interrelationship between the protection of Indigenous rights in the domestic sphere and international norms and practice.

Developments in Australian law and policy concerning Indigenous rights during the last 10 years have raised a number of international law issues. These issues revolve primarily around the norm of non-discrimination on the grounds of race. Questions that arise in this context include, what application the principle of non-discrimination has in respect of Indigenous peoples, what actions of a state of a discriminatory nature will potentially place that state in danger of non-compliance with its international obligations, and whether democratic states have an unfettered right to legislate to the detriment of Indigenous peoples in the name of national sovereignty. A central issue is the right of informed consent in relation to decisions affecting Indigenous peoples. Related matters concern the role of United Nations (‘UN’) treaty bodies in monitoring compliance with UN human rights instruments, and the application of the principle of the so-called ‘margin of appreciation’ (discussed below) in implementing treaties.

Allegations that Australia has failed to comply with its international obligations in respect of the rights of Indigenous Australians, in particular under the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’),[2] have been made over recent years. These allegations, and the ensuing interaction between Australia and the UN human rights treaty monitoring system, provide a useful case study concerning the interdependence of domestic and international law. The allegations refer in particular to the Commonwealth Native Title Act 1993,[3] which purports to recognise and protect native title in Australia.

Native title

It is clear that there has been no true reconciliation between the state of Australia, as the successor to the colonising power of Great Britain, and the Indigenous peoples of this continent in respect of dispossession of lands, loss of sovereignty and consequent social and economic disruption.[4] In the latter part of the 20th century some progress was made in addressing the outstanding issues between Indigenous and non-Indigenous Australians. There was recognition by the Australian courts that the rights of Indigenous Australians to their lands and waters had survived the acquisition of sovereignty by the British and that such rights, known as native title, were cognisable by the common law of Australia.[5]

These developments were explicitly based on international norms of non-discrimination.[6] However, native title still remained subject to extinguishment by valid acts of Government, providing a discriminatory loophole under Australian law. Unlike Canada, there is no accepted doctrine of fiduciary duty in relation to Indigenous peoples in Australia to provide a measure of protection.

Because of the vulnerability of native title, and to provide a process for land management, the then Labor Government passed the Native Title Act 1993 (Cth). The provisions of this legislation were hammered out in protracted negotiations between the Government and Indigenous representatives. Lowitja O’Donoghue, Chairperson of the former Aboriginal and Torres Strait Islander Commission (‘ATSIC’), has observed:

for the first time Indigenous people were at the table negotiating their future[7] (emphasis added).

Indeed, the Preamble to the Native Title Act refers to the key UN human rights instruments Australia has ratified and makes explicit that the Act is based on Australia’s acceptance of its obligations under international law to protect the rights of all its citizens, and in particular its Indigenous peoples. Thus the recognition and regulation of native title in Australia is rooted in international law.

The process of negotiation with Indigenous representatives at the time of the passage of the legislation was consistent with the principle of free and informed consent. However, the election of a conservative Government in 1996 brought changes. From 1997 the Government developed amendments to the Native Title Act, the effect of many being to restrict the scope of native title rights and to truncate the processes available to holders of native title to negotiate uses of their land. Indigenous Australians believed that the compact of the 1993 Native Title Act was unravelling in front of them. The categorical refusal of the Government to base its proposed changes on Indigenous consent and agreement was seen by Indigenous representatives as a major breach of faith.

International law, including its compliance monitoring machinery, soon became part of the story. The Government had in fact been warned at the outset that its proposed amendments might breach its international obligations.[8] Nevertheless, it chose to go ahead and, after a protracted and bitterly fought parliamentary process, the Native Title Act was extensively amended in 1998.

The Government justified its actions on the grounds that it needed to restore what it saw as a necessary balance between all stakeholders in the native title process, arguing that the pendulum had swung too far towards the Indigenous side.[9] However, Indigenous representatives claimed that the 1998 changes to the Native Title Act made it more difficult to bring native title claims, provided legislative confirmation of extinguishment of native title and significantly reduced their rights in negotiations over use of their land. The effect of the changes, they said, would be to marginalise native title holders in decision-making processes. It seemed to Indigenous people that the interests and titles of other Australians were being privileged in comparison to their own residual rights, that is, they claimed that the amendments were racially discriminatory.

CERD Committee Intervention

The Australian Government increasingly came under international scrutiny. The Committee on the Elimination of Racial Discrimination (‘the CERD Committee’) became alarmed at the prospective derogation by Australia from the norm of non-discrimination in respect of the protection afforded to native title and land rights. In August 1998, the CERD Committee, acting under its early warning and urgent action procedures, requested that the Federal Government provide information on proposed or introduced changes to land rights.[10] The CERD Committee, after examining the information provided and arguments made by the Government, upheld the claims of discrimination made by Indigenous representatives. In its decision of March 1999, the CERD Committee observed that:

While the original Native Title Act recognizes and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act (emphasis added).

and

the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title [11] (emphasis added).

The CERD Committee identified four provisions in the amended Native Title Act that it said discriminated against Indigenous title holders.[12] In addition, it stated that the lack of effective participation by Indigenous communities in the formulation of the amendments raised concerns about Australia’s compliance with its obligations under CERD.[13]

The CERD Committee urged the Australian Government to suspend implementation of the 1998 amendments and to re-open discussions with the representatives of the 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.[14] The Government, however, refused and expressed its disagreement with the conclusions reached by the CERD Committee. The then Attorney-General, Darryl Williams, in setting out the Government's position, criticised the CERD Committee’s approach as unbalanced.[15]

A ‘Margin of Appreciation’?

The CERD Committee decision is significant and bears directly on the content and scope of international norms by confirming the centrality of the norm of non-discrimination on the basis of race and affirming the importance of the principle of informed consent in respect of Indigenous peoples. Indeed the principle of non-discrimination on the grounds of race is one of the foundational principles of the UN[16] and is generally considered to have become a fundamental norm of customary international law (ius cogens) from which no derogation is permitted.[17]

Nevertheless, Australia argued, both before the CERD Committee in 1999[18] and before a Joint Parliamentary Committee inquiring into the CERD Committee findings in 2000,[19] that at international law there is a degree of latitude that allows states a ‘margin of appreciation’ in the implementation of international obligations. According to the Australian Government, the margin of appreciation is accorded in recognition that national institutions are best placed to assess the need for substantive equality measures and to find a balance between a range of competing interests. The Government further argued that this margin of appreciation applied in the case of its far-reaching amendments to the Native Title Act.[20]

Although admitting that in relation to discrimination on the basis of race the margin of appreciation is narrow, Australia nevertheless argued before the CERD Committee that novel areas of law attract a wider margin of appreciation and that as native title was a relatively new area of Australian law, the Government’s discretion was wider than it would normally be in such a matter.[21]

The dangers of such an argument are clear. The margin of appreciation may be used as an excuse for avoiding obligations previously entered into and it can provide a veneer of respectability for internationally illegal behaviour. It can allow for the substitution of the self-interest of domestic political judgment for expert international opinion. The states are not necessarily in the position of being impartial arbiters.

The margin of appreciation argument generally failed to convince. The reasons for this are quite straight forward. For one thing, the language of the CERD Committee, unlike many other conventions, is clear-cut and straightforward. It simply does not contemplate exemptions to allow for negative treatment of racial groups. And, given the ius cogens status of the norm of non-discrimination, there appears little likelihood of the application of a margin of appreciation being acceptable in any racial discrimination matters.[22]

Conclusion

In the end, the dispute between Australia and the CERD Committee may have had little impact on the outcomes for Indigenous peoples in relation to native title, although the Senate appears to have taken into account the findings of the CERD Committee when considering regulations to implement the amendments. This provided some protection to native title rights. In the main, the Government ostensibly ignored the CERD Committee findings. However, there are other outcomes, perhaps less tangible, which appear significant. One is the knowledge that discriminatory actions in respect of Indigenous peoples can be the subject of such intense scrutiny. International concern and domestic politics can develop a degree of synergy, which was certainly the case in Australia. The episode with the CERD Committee was obviously one of considerable discomfort for Australia, and brought a degree of unfavourable international comment. Such an outcome may well act as a brake on future discriminatory behaviours, whether by Australia or others.

Secondly, the situation shows clearly that Indigenous rights, especially regarding lands and waters, are not merely aspirational, they are matters of real substantive law, at the international level as well as the domestic. These norms are of increasing coherence and cogency. The jurisprudence of the CERD Committee, the Human Rights Committee, the ILO’s Committee of Experts and other bodies has developed rules and standards that require the free and informed consent of Indigenous peoples for actions directly affecting their interests and welfare.

Lastly, the convoluted arguments that took place over the margin of appreciation show that the rights and well-being of Indigenous peoples and communities can ultimately revolve around fine legal points and relatively obscure legal principles. Significant resources were applied to running these arguments, both internationally and at home. The issues were taken very seriously because they were real, and a lot depended on how they were resolved. Put simply, Indigenous rights are legal rights.

It is a truism that in settler states such as Australia there is an ongoing tension between the rights of Indigenous peoples and the interests of the wider society. Rights already gained, unless constitutionally entrenched, are always vulnerable to revision. The overarching difficulty for Indigenous peoples in Australia is in fact the lack of constitutional entrenchment of their rights or of the principle of non-discrimination, leaving them vulnerable to discriminatory legislation.

The CERD Committee noted this fundamental problem in the arrangements for race relations in Australia in its Concluding Observations in 2000 on the eleventh and twelfth periodic reports submitted by Australia. The CERD Committee observed:

The Committee is concerned over the absence from Australian law of any entrenched guarantee against racial discrimination that would override subsequent law of the Commonwealth, states and territories.[23]

For Australia, like most settler democracies, there is a long way to go before a true reconciliation is achieved between the Indigenous peoples and the descendants of the settlers. But it is a journey that must be undertaken and international law can play an important role.

Greg Marks is a Canberra-based consultant and researcher whose principal areas of interest are international law, Indigenous rights and native title.


[1] Edited version of a paper presented at the 72nd Biennial Conference of the International Law Association, Toronto, Canada, 4-8 June 2006.

[2] International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

[3]Native Title Act 1993 (Cth).

[4] There has been no treaty, compact or other instrument, no constitutional entrenchment of Indigenous rights, nor other measures of restitution or compensation to provide adequate redress.

[5] See Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1.

[6] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, at 28-29 (Brennan J).

[7] Aboriginal and Torres Strait Islander Commission, Proposed Amendments to the Native Title Act 1993 – Issues for Indigenous Peoples, Canberra (1996) 1.

[8] Ibid 2.

[9] See Australian Government Solicitor, Native Title, (2nd Edition), (1998) 7886-7893.

[10] The Convention on the Elimination of All Forms of Racial Discrimination Committee (‘the CERD Committee’), Decision 1(53) Concerning Australia, 11 August 1998. UN Doc CERD/C/53/Misc.17/Rev.2.

[11] The CERD Committee, Decision 2(54) on Australia: Australia. 18 March 1999. UN Doc A/54/18, para.21(2) (Decision) [6].

[12] Ibid [7]. These included the Act’s ‘validation’ provisions, the provisions for ‘confirmation of extinguishment’ provisions, the primary production upgrade provisions and restrictions concerning the right to negotiate non-Indigenous land uses.

[13] Ibid [9] (refers to Article 5(c) of CERD).

[14] The CERD Committee, above n 11, [11].

[15] The Hon Darryl Williams, Attorney-General’s Department, United Nations Committee Misunderstands and Misrepresents Australia (News Release, 19 March 1999).

[16] See Charter of the United Nations, 26 June 1945, 557 UNTS 143, Article 1(3) and the Universal Declaration of Human Rights 10 December 1948, UN Doc. A/810/, at 71, Article 2.

[17] See Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi (eds), Public International Law: An Australian Perspective (1997) 69; and Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998) 14-15.

[18] Robert Orr, Australian Government representative before CERD Committee 18 March 1999. Quoted in the Parliament of the Commonwealth of Australia, ‘Sixteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - CERD and Native Title Amendment Act 1998, June 2000, para 6.16.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] As the separate report of the non-Government members of the Parliamentary Committee pointed out: ‘The arguments put forward by the Commonwealth Government on the existence of a “margin of appreciation” …fail to take account of the fundamental nature of the prohibition on racial discrimination in international law, and the unqualified language of the CERD’ Ibid, 130.

[23] The CERD Committee, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia.19/04/2000. UN Doc.CERD/C/304/Add.101 19 April 2000, paragraph 6.