MORNING

HR/CERD/99/22
15 March 1999




The Committee on the Elimination of Racial Discrimination this morning concluded its consideration of the situation in Australia concerning Aboriginal land rights under its early warning measures and urgent action procedures.

The Committee heard the responses of the Australian delegation to a number of questions raised by experts during the previous meeting. Formal, written observations and recommendations will be issued by the Committee towards the end of its three-week session, which concludes on 19 March.

Gay McDougall, the Committee expert who served as country rapporteur to the situation in Australia, said that indigenous land rights were unique and encompassed a traditional and cultural connection to the land that had been recognized in international law. The international community now understood that doctrines of dispossession were illegitimate and racist, she added.

The following Committee experts also participated in the discussion: Theodoor van Boven, Mahmoud Aboul-Nasr, Luis Valencia Rodriguez, Agha Shahi, Régis de Gouttes, Mario Jorge Yutzis, 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 obligated to present information when requested to by the Committee in addition to its submission of periodic reports on how it is implementing the provisions of the treaty.


When the Committee reconvenes at 3 p.m., it will take up the report of Kuwait.

Discussion of Australian Situation

In response to numerous questions raised by the Committee's experts, the members of the Australian delegation said that most Australian States and Territories had some form of legislation relating to the provision of access and granting of land to indigenous peoples. Commonwealth land rights legislation sought to recognize and provide for the rights and needs of Aboriginal people and Torres Strait Islanders in relation to land.

The delegation said that States and Territories could validate acts carried out from 1 January 1994 to the date of the Wik decision, but only when those acts concerned current or former leasehold or freehold land. The amendments made to the Native Title Amendment Act 1998 ensured that native title-holders and representative bodies were required to be notified of mining grants that might be affected by the validation provisions.

The amendments also expressly confirmed that pastoralists could lawfully carry on activities under their pastoral lease notwithstanding that native title might co-exist and that the exercise of pastoral rights prevailed over the exercise of native title rights on pastoral lease land, said the delegation. In addition, authorities were not prevented under the Native Title Act from authorizing the carrying on of other primary production activities on pastoral lease land. However, those primary production provisions could not be used to extinguish native title.

Under the Native Title Act, the only way by which native title could be extinguished on a pastoral lease was by agreement with the native title-holders, or by its acquisition by the Government under non-discriminatory acquisition legislation, the officials said. In some jurisdictions, acquisitions could only be made for "public purposes". The amendment also allowed authorities to continue to grant off-land grazing and irrigation rights, and to provide for the removal of some resources from pastoral lease lands, but with procedural rights and compensation to native tittle-holders.

Concerning the indigenous land fund, the delegation said that its purpose was to assist indigenous people to purchase land in recognition that many native title rights had already been extinguished. The fund was established in 1994 as part of the Government's response to the High Court decision in Mabo in 1992 which recognized native title. The fund was established with an initial allocation of 200 million Australian dollars. At present, 15 per cent of the Australian continent was Aboriginal-owned.

The delegation said that the amended Native Title Act maintained and strengthened the provisions in relation to compulsory acquisition of native title. Native title could be compulsorily acquired and thereby extinguished by authorities only when freehold title could be compulsorily acquired.

Commenting on the presentation of the Australian report, some experts said that presenting a report solely on its legal aspect could be monotonous, not only for the experts - some of whom were jurists themselves - but for the layman who listened to the debate. An expert also remarked that the delegation had said that because of the lack of consensus on land rights, the Australian Parliament had to impose a law on the subject. The expert said that this was an alarming trend. Some experts said that the situation was very complex.

In response to additional queries put by Committee experts, the delegation said that the present situation did not satisfy anyone, including the Aboriginal people and other segments of the society. It noted that the overwhelming majority of the deputies in the country's Parliament were white.

Concerning the land rights, the delegation recognized that many of the Aboriginals had been dispossessed of their lands and their rights had been extinguished. In the process of drafting the Native Title Amendment Act, the Government had attempted to consult the Aboriginal people but it had been impossible to do so, added the delegation.

Regarding the registration test, the delegation said that the acceptance test had been replaced by a new registration test applied by the Native Title Registrar. Claimants who passed the registration test obtained significant procedural rights under the Native Title Act and could be parties to a rights negotiated process.

With regard to the Aboriginal and Torres Strait Islander Social Justice Commissioner, the delegation said that it was a member of the Human Rights and Equal Opportunity Commission. A new Commissioner was appointed this month for a five-year term beginning 6 April. The Commission's functions included handling complaints of discrimination under Commonwealth anti-discriminating legislation, including the Racial Discrimination Act of 1975.

GAY MCDOUGALL, the Committee expert who served as country rapporteur to the situation in Australia, said that indigenous land rights were unique and encompassed a traditional and cultural connection to the land that had been recognized in international law. The international community now understood that doctrines of dispossession were illegitimate and racist.

Ms. McDougall noted what the delegation had said several times that the Australian Government believed that it could not go back and cure the injustices of the past. She said she could see some merit in that view. However, what concerned her was that the validation and confirmation of extinguishment provisions in the amended act did not apply to the distant past, they appeared to apply to actions that in some cases had taken place as recently as 1994 and 1996.

Ms. McDougall said that she would welcome a discussion within the Committee about how the experts might continue their urgent deliberations on Australia's situation beyond the conclusion of the current session.