Editors --- "CERD Committee Decision on Australia - Digest" [1999] AUIndigLawRpr 15; (1999) 4(2) Australian Indigenous Law Reporter 140

CERD Committee Decision on Australia

Committee On the Elimination of Racial Discrimination 54 th Session.

CERD/C/54/Misc 40/Rev 2.

18 March 1999

On 12 and 15 March 1999, the CERD Committee met with representatives of the Australian Government and others. The CERD Committee has kept this matter on its agenda under its early warning and urgent action procedures, and will again discuss Australia at its next meeting in August 1999. The text of the Committee's Decision on Australia made on 18 March 1999 follows.

1. Acting under its early warning procedures, the Committee adopted Decision 1(53) on Australia on 11 August 1998 (A/53/18, para 22), requesting information from the State Party regarding three areas of concern: proposed changes to the 1993 Native Title Act; changes of policy as to Aboriginal land rights; and changes in the position or function of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The Committee welcomes the full and thorough reply of the Commonwealth Government of Australia to this request for information (CERD/C/347). The Committee also appreciates the dialogue with the delegation from the State party at the Committee's 1323rd and 1324th meetings to respond to additional questions posed by the Committee in regard to the State Party's submission.
2. The Committee received similarly detailed and useful comments from the Acting Aboriginal and Torres and Strait Islander Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission; the Aboriginal and Torres Strait Islander Commission; members of the Parliament and Senate of Australia.
3. The Committee recognises that within the broad range of discriminatory practices that have long been directed against Australia's Aboriginal and Torres Strait Islander peoples, the effects of Australia's racially discriminatory land practices have endured as an acute impairment of the rights of Australia's indigenous communities.
4. The Committee recognises further that the land rights of indigenous peoples are unique and encompass a traditional and cultural identification of the indigenous peoples with their land that has been generally recognised.
5. In its last Concluding Observations on the previous report of Australia, the Committee welcomed the attention paid by the Australian judiciary to the implementation of the Convention. (A/49/18, para 540) The Committee also welcomed the decision of the High Court of Australia in the case of Mabo v Queensland, noting that in recognising the survival of indigenous title to land where such title had not otherwise been validly extinguished, the High Court case constituted a significant development in the recognition of indigenous rights under the Convention. The Committee welcomed, further, the Native Title Act of 1993, which provided a framework for the continued recognition of indigenous land rights following the precedent established in the Mabo case.
6. The Committee, having considered a series of new amendments to the Native Title Act, as adopted in 1998, expresses concern over the compatibility of the Native Title Act, as currently amended, with the State Party's international obligations under the Convention. While the original Native Title Act recognises and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act. While the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title.
7. The Committee notes, in particular, four specific provisions that discriminate against indigenous title-holders under the newly amended Act. These include: the Act's 'validation' provisions; the 'confirmation of extinguishment' provisions; the primary production upgrade provisions; and restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses.
8. These provisions raise concerns that the amended Act appears to wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act. As such, the amended Act cannot be considered to be a special measure within the meaning of arts 1(4) and 2(2) of the Convention and raises concerns about the State Party's compliance with arts 2 and 5 of the Convention.
9. The lack of effective participation by indigenous communities in the formulation of the amendments also raises concerns with respect to the State Party's compliance with its obligations under art 5(c) of the Convention. Calling upon States Parties to 'recognise and protect the rights of indigenous peoples to own, develop, control and use their common lands, territories and resources,' the Committee, in its General Recommendation XXIII, 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'.
10. While welcoming the State Party's recognition of the important role that has been played by the Human Rights and Equal Opportunity Commission, the Committee also notes with concern the State Party's proposed changes to the overall structure of the Commission; abolishing the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner and assigning those functions to a generalist Deputy President. The Committee strongly encourages the State Party to consider all possible effects of such a restructuring, including whether the new Deputy President would have sufficient opportunity to address in an adequate manner the full range of issues regarding indigenous peoples warranting attention. Consideration should be given to the additional benefits of an appropriately qualified specialist position to address these matters, given the continuing political, economic and social marginalisation of the indigenous community of Australia.
11. The Committee calls on the State Party to address these concerns as a matter of utmost urgency. Most importantly, in conformity with the Committee's General Recommendation XXIII concerning indigenous peoples, the Committee urges the State Party to suspend implementation of the 1998 amendments and 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.
12. In light of the urgency and fundamental importance of these matters, and taking into account the willingness expressed by the State Party to continue the dialogue with the Committee over these provisions, the Committee decides to keep this matter on its agenda under its early warning and urgent action procedures to be reviewed again at its 55th session.