AUSTRALIA PRESENTS REPORT ON ABORIGINAL RIGHTS TO UNITED NATIONS COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION
12 March 1999
AFTERNOON
HR/CERD/99/21
12 March 1999
An Australian Government delegation this afternoon presented a report on Aboriginal rights to the Committee on the Elimination of Racial Discrimination, saying that the expropriation of indigenous lands had been a tragic event but that it was difficult to reverse past situations.
The remark came as the Committee started its consideration of a report submitted by Australia in compliance with its request for further information under its early warning measures and urgent action procedures concerning the amendment of Aboriginal land rights.
Gay McDougall, the Committee expert who served as country rapporteur to the situation of Australia, said that within the broad range of discriminatory practices long directed against Aboriginal and Torres Strait Islanders, the effects of Australia's racially discriminatory land practices had stood out as an acute impairment of the rights of its native communities.
Committee Chairman Mahmoud Aboul-Nasr said the Committee had received communications from individuals concerning the violation of Aboriginal rights in Australia and that justified the Committee’s request for additional information on this issue.
Also taking the floor this afternoon were Committee experts Ion Diaconu, Michael Parker Banton, Mario Jorge Yutzis, Carlos Lechuga Hevia, Luis Valencia Rodriguez, Deci Zou, and Shanti Sadiq Ali.
As one of the 153 States parties to the International Convention on the Elimination of All Forms of Racial Discrimination, Australia is obliged to submit periodic reports as well as further information as requested under the Committee's early warning measures and urgent action procedures.
The Committee will continue its consideration of the Australian situation when it reconvenes at 10 a.m. on Monday, 15 March.
Report of Australia
The Australian report (CERD/C/347) was submitted in compliance with the request of the Committee. On 11 August 1998, the Committee requested the Government of Australia to provide it with information on the changes recently projected or introduced to the 1993 Native Title Act on any changes of policy as to Aboriginal land rights, and on the functions of the Aboriginal and Torres Strait Social Justice Commissioner. According to the document, the Committee states that it wishes to consider the compatibility of any such changes with Australia's obligations under the Convention.
The report says that in July 1998, the Australian Parliament passed the Native Title Amendment Act. It contained amendments to the 1993 Native Title Act which dealt with a range of issues. The majority of the amendments came into operation in September 1998. The Native Title Act of 1993 and the Native Title Amendment Act of 1998 were the legislative responses of successive Commonwealth Governments to two landmark High Court decisions: the Mabo decision in June 1992 and the Wik decision in December 1996.
Presentation of Australian Report
ANDREW GOLEDZINOWSKI, Chargé d'Affaires, Permanent Mission of Australia to the United Nations Office at Geneva, introduced his country's report, recalling that a Commissioner for indigenous peoples within the Commission of Equal Opportunity had been appointed in his country. In addition, the Government of Australia had invited Maurice Glélé-Ahanhanzo, the Special Rapporteur on contemporary forms of racism, racial discrimination and xenophobia to visit the country in 1998. However, because of health problems, the Special Rapporteur was not able to carry out his visit as scheduled. Lately, in light of recent events in Australia, the Special Rapporteur had made it known that his visit was no longer a priority and it was unlikely that it would take place this year. Nevertheless, the invitation extended to the Special Rapporteur remained valid.
The delegation of Australia, which also included two other members,
said that under the text of the Native Title Act of 1993 regarding pastoral rights, a distinction was established between the past and the future. The Government was thus inclined to the future use of the lands in order to avoid any further annulation of indigenous rights. The delegation said that the expropriation of indigenous lands had been a tragic event but it was difficult to reverse past situations.
The delegation said that the Mabo and Wik decisions transformed the way in which Australian law regarded the relationship of indigenous people with land. The Mabo decision recognized for the first time that Australia's indigenous people had common law rights flowing from their traditional connection with land. The Mik decision held that those legal rights might exist even in relation to land which was under a pastoral lease.
The members of the delegation said that the Native Title Act was first recognized in Australia by the High Court in Mabo in 1992. The majority of the Court held that the common law of Australia recognized a form of native title existing in accordance with the laws and customs of indigenous people where those people had maintained their traditional connection with the land; and that their title had not been "extinguished" by legislative or other acts of Government.
The Australian delegation stressed that as part of developing its response to the Wik decision, the Government had undertaken from early 1997 an extensive consultation phase with all interested groups, including indigenous groups, miners, pastoralists and local Governments. In response to legal uncertainty on a range of subjects, the Native Title Act made provisions to be confirmed by States and Territories which sought to reflect the common law, but removed the need for lengthy case-by-case determination by the courts.
The delegation said that only a small percentage of the total area of Australia was potentially affected by the confirmation regime. About 79 per cent of Australia was potentially claimable where traditional connection with the land could still be established while 12.8 represented freehold land and 7.7 per cent was land under lease, said the delegation.
GAY MCDOUGALL, the Committee expert who served as country rapporteur to the situation in Australia, said that within the broad range of discriminatory practices long directed against Aboriginal and Torres Strait Islanders, the effects of Australia's racially discriminatory land practices had stood out as an acute impairment of the rights of its native communities. The doctrine of terra nullius had continued to be enforced until the landmark 1992 High Court case of Mabo which held the doctrine both unconstitutional and a violation of the Racial Discrimination Act of 1975, she said.
Ms. McDougall recalled that in reaction to the landmark Mabo decision, the Australian Government had passed the Native Title Act in 1993 which established a system to recognize native title claims through the National Native Title Tribunal, a measure that the Committee welcomed when it last considered a report by Australia. Because so much of the Government's argument was that its actions were justified because they met the standard of the common law, it was important to note that the common law was racially discriminatory, she said.
With regard to the confirmation of extinguishment provisions, Ms. McDougall said that its purpose was to reflect the common law and remove the need for lengthy case-by-case determination by the courts. She said it appeared to her that those confirmation provisions in the amended Act represented a significant encroachment on common law native title protection in two ways: they deemed that certain tenures extinguished native titles where according to common law they would not; and upon being confirmed, those tenures provided extinguished native titles forever, regardless of whether the non-native tenure would continue to subsist on the land.
Other Committee experts also took the floor to express concern about what they called a "regressing situation" in matters of respect for the rights of Aboriginal people. An expert was of the view that the Australian Aboriginals had been subjected to various sorts of racially motivated violations and discrimination. Some experts recalled the situation of the "lost generation" of Aboriginal children who were either abducted or forced to be assimilated within "white" families. The measure undertaken by the Government of Australia was yet another aspect of racial discrimination directed against the Aboriginal people, some experts said.
An expert said that apparently over 60 per cent of the Aboriginal population would be able to register no claims since their ancestral land rights had already been extinguished. In those circumstances, the compatibility of the amendments with obligations of the Convention was questionable.
In response to the questions raised by the Committee members, the Australian delegation said that the leader of the "One Nation" party which had a racist policy had already lost her parliamentary seat which reflected the people’s rejection of her ideas. The delegation reiterated that the invitation extended to the Special Rapporteur on Contemporary Forms of Racism was still valid and he could visit the country whenever he wished to do so.
HR/CERD/99/21
12 March 1999
An Australian Government delegation this afternoon presented a report on Aboriginal rights to the Committee on the Elimination of Racial Discrimination, saying that the expropriation of indigenous lands had been a tragic event but that it was difficult to reverse past situations.
The remark came as the Committee started its consideration of a report submitted by Australia in compliance with its request for further information under its early warning measures and urgent action procedures concerning the amendment of Aboriginal land rights.
Gay McDougall, the Committee expert who served as country rapporteur to the situation of Australia, said that within the broad range of discriminatory practices long directed against Aboriginal and Torres Strait Islanders, the effects of Australia's racially discriminatory land practices had stood out as an acute impairment of the rights of its native communities.
Committee Chairman Mahmoud Aboul-Nasr said the Committee had received communications from individuals concerning the violation of Aboriginal rights in Australia and that justified the Committee’s request for additional information on this issue.
Also taking the floor this afternoon were Committee experts Ion Diaconu, Michael Parker Banton, Mario Jorge Yutzis, Carlos Lechuga Hevia, Luis Valencia Rodriguez, Deci Zou, and Shanti Sadiq Ali.
As one of the 153 States parties to the International Convention on the Elimination of All Forms of Racial Discrimination, Australia is obliged to submit periodic reports as well as further information as requested under the Committee's early warning measures and urgent action procedures.
The Committee will continue its consideration of the Australian situation when it reconvenes at 10 a.m. on Monday, 15 March.
Report of Australia
The Australian report (CERD/C/347) was submitted in compliance with the request of the Committee. On 11 August 1998, the Committee requested the Government of Australia to provide it with information on the changes recently projected or introduced to the 1993 Native Title Act on any changes of policy as to Aboriginal land rights, and on the functions of the Aboriginal and Torres Strait Social Justice Commissioner. According to the document, the Committee states that it wishes to consider the compatibility of any such changes with Australia's obligations under the Convention.
The report says that in July 1998, the Australian Parliament passed the Native Title Amendment Act. It contained amendments to the 1993 Native Title Act which dealt with a range of issues. The majority of the amendments came into operation in September 1998. The Native Title Act of 1993 and the Native Title Amendment Act of 1998 were the legislative responses of successive Commonwealth Governments to two landmark High Court decisions: the Mabo decision in June 1992 and the Wik decision in December 1996.
Presentation of Australian Report
ANDREW GOLEDZINOWSKI, Chargé d'Affaires, Permanent Mission of Australia to the United Nations Office at Geneva, introduced his country's report, recalling that a Commissioner for indigenous peoples within the Commission of Equal Opportunity had been appointed in his country. In addition, the Government of Australia had invited Maurice Glélé-Ahanhanzo, the Special Rapporteur on contemporary forms of racism, racial discrimination and xenophobia to visit the country in 1998. However, because of health problems, the Special Rapporteur was not able to carry out his visit as scheduled. Lately, in light of recent events in Australia, the Special Rapporteur had made it known that his visit was no longer a priority and it was unlikely that it would take place this year. Nevertheless, the invitation extended to the Special Rapporteur remained valid.
The delegation of Australia, which also included two other members,
said that under the text of the Native Title Act of 1993 regarding pastoral rights, a distinction was established between the past and the future. The Government was thus inclined to the future use of the lands in order to avoid any further annulation of indigenous rights. The delegation said that the expropriation of indigenous lands had been a tragic event but it was difficult to reverse past situations.
The delegation said that the Mabo and Wik decisions transformed the way in which Australian law regarded the relationship of indigenous people with land. The Mabo decision recognized for the first time that Australia's indigenous people had common law rights flowing from their traditional connection with land. The Mik decision held that those legal rights might exist even in relation to land which was under a pastoral lease.
The members of the delegation said that the Native Title Act was first recognized in Australia by the High Court in Mabo in 1992. The majority of the Court held that the common law of Australia recognized a form of native title existing in accordance with the laws and customs of indigenous people where those people had maintained their traditional connection with the land; and that their title had not been "extinguished" by legislative or other acts of Government.
The Australian delegation stressed that as part of developing its response to the Wik decision, the Government had undertaken from early 1997 an extensive consultation phase with all interested groups, including indigenous groups, miners, pastoralists and local Governments. In response to legal uncertainty on a range of subjects, the Native Title Act made provisions to be confirmed by States and Territories which sought to reflect the common law, but removed the need for lengthy case-by-case determination by the courts.
The delegation said that only a small percentage of the total area of Australia was potentially affected by the confirmation regime. About 79 per cent of Australia was potentially claimable where traditional connection with the land could still be established while 12.8 represented freehold land and 7.7 per cent was land under lease, said the delegation.
GAY MCDOUGALL, the Committee expert who served as country rapporteur to the situation in Australia, said that within the broad range of discriminatory practices long directed against Aboriginal and Torres Strait Islanders, the effects of Australia's racially discriminatory land practices had stood out as an acute impairment of the rights of its native communities. The doctrine of terra nullius had continued to be enforced until the landmark 1992 High Court case of Mabo which held the doctrine both unconstitutional and a violation of the Racial Discrimination Act of 1975, she said.
Ms. McDougall recalled that in reaction to the landmark Mabo decision, the Australian Government had passed the Native Title Act in 1993 which established a system to recognize native title claims through the National Native Title Tribunal, a measure that the Committee welcomed when it last considered a report by Australia. Because so much of the Government's argument was that its actions were justified because they met the standard of the common law, it was important to note that the common law was racially discriminatory, she said.
With regard to the confirmation of extinguishment provisions, Ms. McDougall said that its purpose was to reflect the common law and remove the need for lengthy case-by-case determination by the courts. She said it appeared to her that those confirmation provisions in the amended Act represented a significant encroachment on common law native title protection in two ways: they deemed that certain tenures extinguished native titles where according to common law they would not; and upon being confirmed, those tenures provided extinguished native titles forever, regardless of whether the non-native tenure would continue to subsist on the land.
Other Committee experts also took the floor to express concern about what they called a "regressing situation" in matters of respect for the rights of Aboriginal people. An expert was of the view that the Australian Aboriginals had been subjected to various sorts of racially motivated violations and discrimination. Some experts recalled the situation of the "lost generation" of Aboriginal children who were either abducted or forced to be assimilated within "white" families. The measure undertaken by the Government of Australia was yet another aspect of racial discrimination directed against the Aboriginal people, some experts said.
An expert said that apparently over 60 per cent of the Aboriginal population would be able to register no claims since their ancestral land rights had already been extinguished. In those circumstances, the compatibility of the amendments with obligations of the Convention was questionable.
In response to the questions raised by the Committee members, the Australian delegation said that the leader of the "One Nation" party which had a racist policy had already lost her parliamentary seat which reflected the people’s rejection of her ideas. The delegation reiterated that the invitation extended to the Special Rapporteur on Contemporary Forms of Racism was still valid and he could visit the country whenever he wished to do so.