Native Title Amendment (Infrastructure and Public Facilities) Bill 2020 [2020] AUPJCHR 154 (13 November 2020)

1.2 The committee seeks a response from the relevant minister with respect to the following bills.

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Native Title Amendment (Infrastructure and Public Facilities) Bill 2020^[1]

Purpose	This bill seeks to amend the Native Title Act 1993 to extend the operation of Subdivision JA, which permits the construction of public housing and other structures on Indigenous held land, for another 10 years.
Portfolio	Attorney-General
Introduced	House of Representatives, 8 October 2020
Rights	Equality and non-discrimination; self-determination; culture; effective remedy; adequate standard of living; education; health
Status	Seeking additional information

Extension of the future acts regime

1.3 This bill proposes to extend the operation of the future acts regime in the Native Title Act 1993 for a further 10 years.^[2] The future acts regime sets out how future acts that will affect native title rights and interests can be validly undertaken. Native title is not extinguished by the future acts regime, but if a future act is inconsistent with native title, the native title rights and interests have no effect in relation to the act (or to the extent of the inconsistency).^[3]

1.4 A future act must facilitate or consist of the construction, operation, use, maintenance or repair of specific facilities, including public housing, staff housing and other public infrastructure, such as education, health, police and emergency facilities. These facilities must be established by or on behalf of the Crown or a local government body, or other statutory authority of the Crown (the action body), on land held by or for the benefit of Aboriginal or Torres Strait Islander people.^[4]

1.5 The action body must give registered native title claimants, registered native title body corporates, or representatives of Aboriginal and Torres Strait Islander bodies notice of, and an opportunity to comment on, the act, and provide a report to the Commonwealth Minister.^[5] If the action body does not do so, the future act will not be valid. The future act cannot be done before the consultation period ends.^[6] Additionally, the future acts regime allows any registered native title claimant or body corporate to request consultation with the action body about the future act so far as it affects their registered native title rights and interests.^[7] If such a request is made, the action body must consult with the claimant or body corporate about ways of minimising the impact of the future act on the native title rights and interests in relation to land or waters in the area.^[8]

Preliminary international human rights legal advice

Rights to adequate standard of living, education and health

1.6 In extending the operation of the future acts regime by a further 10 years, to the extent that this facilitates the timely provision of adequate and safe public housing and other public infrastructure, such as education and health facilities, for Aboriginal and Torres Strait Islander people, the bill may promote the rights to an adequate standard of living, education and health. The right to an adequate standard of living requires States parties to take steps to ensure the availability, adequacy (including cultural adequacy) and accessibility of food, clothing, water and housing for all people in its jurisdiction.^[9] The right to education includes the provision of functioning educational institutions and related facilities.^[10] The right to health requires available, accessible, acceptable (including culturally appropriate) and quality health care. It includes the right to enjoy functioning public health facilities as well as those facilities, services and conditions necessary for the realisation of the highest attainable standard of health, such as adequate sanitation facilities, hospitals and health-related buildings.^[11]

1.7 The statement of compatibility states that the bill promotes these rights by ensuring that Aboriginal and Torres Strait Islander people can access adequate and safe public housing, public health facilities and associated infrastructure, such as sewerage treatment facilities and water supply facilities, as well as public education facilities and associated infrastructure, such as housing for teachers.^[12] It notes that the timely construction of public infrastructure will address overcrowding in houses and the current and emerging health needs of remote Indigenous communities.^[13]

Rights to equality and non-discrimination, self-determination, culture and an effective remedy

1.8 The bill also engages and limits several other human rights, including the rights to equality and non-discrimination, self-determination, culture and an effective remedy. The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, including on the grounds of race, and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.^[14] The bill appears to limit the right to non-discrimination by treating native title holders (who are exclusively Aboriginal and Torres Strait Islander people) differently from other land holders. The effect of the bill would be the continued limitation of the rights and interests of native title holders in exchange for the provision of public housing and public infrastructure on Indigenous held land—an exchange not imposed on other land owners.

1.9 Differential treatment on the grounds of a protected attribute, such as race, may not constitute discrimination if it is considered to be a special measure. Special measures are those that are 'taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms'.^[15] The statement of compatibility states that the bill can be characterised as components of a broader special measure, being the Native Title Act 1993 in its entirety.^[16] However, the UN Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people has emphasised that while special measures are:

1.10 Special measures are ordinarily achieved through preferential treatment of disadvantaged groups and ‘not the impairment of the enjoyment of their human rights’.^[18] The UN Committee on the Elimination of Racial Discrimination has similarly stated that special measures should be ‘designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities’.^[19] The extension of the future acts regime by a further 10 years is unlikely to be considered a special measure under international law noting that it seeks to advance certain human rights for Aboriginal and Torres Strait Islander people through measures implemented without the free, prior and informed consent of the affected communities, and appears to have the effect of limiting other human rights for some or all members of that community.

1.11 The bill would also limit the rights to self-determination and culture as the future acts regime affects native title rights and interests by permitting the construction of infrastructure on Indigenous held land without requiring the consent of the relevant native title holders and registered claimants.^[20] The right to

self-determination includes 'the rights of all peoples to pursue freely their economic, social and cultural development without outside interference'.^[21] As part of its obligations in relation to respecting the right to self-determination, Australia has an obligation under customary international law to consult with Indigenous peoples in relation to actions which may affect them.^[22] A related requirement is that of Indigenous peoples’ 'free, prior and informed consent' in relation to decisions that may affect them.^[23] The United Nations Declaration on the Rights of Indigenous Peoples provides that States shall consult and cooperate in good faith with Indigenous persons and their representative organisations to obtain free and informed consent prior to the approval of projects affecting Indigenous held land or territories.^[24] The UN Human Rights Committee Expert Mechanism on the Rights of Indigenous Peoples has stated that ‘free, prior and informed consent is a human rights norm grounded in the fundamental rights to self-determination and to be free from racial discrimination’.^[25] In the context of amendments to native title legislation, the UN Committee on the Elimination of Racial Discrimination and the UN Committee on Economic, Social and Cultural Rights have recommended that Australia ensure the principle of free, prior and informed consent is incorporated into the Native Title Act 1993 and fully implemented in practice.^[26]

1.12 The right to culture provides that all people have the right to benefit from and take part in cultural life.^[27] In the context of Indigenous peoples, the right to culture includes the right for Indigenous people to use land resources, including through traditional activities such as hunting and fishing, and to live on their traditional lands.^[28]

1.13 The statement of compatibility notes that the bill limits the procedural rights of native title holders to the extent that they only have the right to be consulted for a maximum of four months about ways of minimising impacts of future acts on native title rights and interests, and do not have to consent to the proposed future act.^[29] To the extent that the bill permits the construction of infrastructure without the consent of the relevant community, the right of Indigenous peoples to freely pursue their economic, social and cultural development and live on, use and protect their traditional lands would be limited.^[30]

1.14 It is possible that the bill may engage and limit the right to an effective remedy. The right to an effective remedy requires the availability of a remedy which is effective with respect to any violation of rights and freedoms recognised by the International Covenant on Civil and Political Rights.^[31] While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), state parties must comply with the fundamental obligation to provide a remedy that is effective.^[32] The statement of compatibility states that the bill will promote the right to an effective remedy by providing native title holders with an entitlement to compensation on just terms for the effect of any future act on their native title rights and interests. However, it is unclear how this compensation scheme operates in practice and whether all future acts constitute an impairment of native title rights and interests, thereby engaging the right to compensation.

1.15 The rights to equality and non-discrimination, self-determination and culture may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.16 Through the timely provision of public infrastructure, the bill seeks to address overcrowding, poor housing conditions and other infrastructure needs of Aboriginal and Torres Strait Islander people on Indigenous held land. This is likely to be a legitimate objective for the purpose of international human rights law, and the measure would appear to be rationally connected to that objective insofar as this measure may ensure such infrastructure is constructed quickly.

1.17 Regarding the proportionality of the measure, it is necessary to consider whether any less rights restrictive alternatives could achieve the stated objective. The statement of compatibility states that permitting development without consent and the consequent limitation on human rights is necessary and proportionate to achieving the rights of Indigenous community members to an adequate standard of living, health and education. It notes that Indigenous Land Use Agreements (ILUAs) are the standard and preferred mechanism for undertaking future acts and the future act regime would be used in limited circumstances where an ILUA cannot be agreed or is facing extended negotiations. ILUAs, or another process informed by the principle of free, prior and informed consent, would appear to be a less rights restrictive avenue for pursuing development on Indigenous held land compared to the future acts regime.^[33] However, while the statement of compatibility states that ILUAs are the preferred mechanism for undertaking future acts, there is no legal requirement that agreement via an ILUA first be sought. Thus, further information as to why this is not included in the legislation, and information regarding the adequacy of the ILUA process would be helpful to assess the proportionality of the measure. In particular, it is unclear to what extent consideration was given to less rights restrictive measures to alleviate delays in the negotiation process of ILUAs.

1.18 Another relevant factor in assessing whether a measure is proportionate is whether it is accompanied by sufficient safeguards and there is the possibility of oversight and the availability of review. The statement of compatibility states that native title holders and registered claimants are afforded the right to participate in a consultation process and the bill retains a mechanism for raising concerns about land use.^[34] While consultation with Indigenous peoples can operate as a safeguard to protect certain human rights, notably the right to self-determination, questions remain as to whether the consultation process contained in the bill is effective and meaningful.^[35] The UN Human Rights Council has emphasised that a consultation process should be intended to protect the right of indigenous peoples to 'influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard'.^[36] It would appear that native title holders may not be able to substantially influence the outcome of decisions relating to proposed future acts on their land. This is because their consent is neither the objective of consultation nor a requirement for the validity of the act; the onus is placed on the native title holders to request consultation about ways to minimise the impact of the future act on native title; the consultation period is restricted to a maximum of four months; and the outcomes of any consultation are not required to be publicly reported (although the action body must provide a report to the Commonwealth Minister). Further, the bill does not appear to provide any possibility of oversight or availability of review for decisions made under the future acts regime or contain any safeguards to ensure that the future acts regime is used as a measure of last resort where an ILUA cannot be reached. While the statement of compatibility notes that the measure is temporary and will be reassessed in a further 10 years, it provides no information about available monitoring mechanisms to inform that reassessment.

1.19 In order to assess the compatibility of this bill with human rights, further information is required as to:

Committee view

1.20 The committee notes that this bill seeks to amend the Native Title Act 1993 to extend the operation of the future acts regime, which permits the construction of public housing and other infrastructure on Indigenous held land, for another 10 years. This would have the effect that any native title rights and interests would have no effect in relation to that act.

1.21 The committee considers that the bill could promote the rights to an adequate standard of living, education and health for Aboriginal and Torres Strait Islander peoples on Indigenous held land through facilitating the timely provision of public housing and other public infrastructure such as education and health facilities. However, the committee notes that the bill engages and may limit a number of other human rights, including the rights to self-determination, culture and equality and non-discrimination by permitting the development of infrastructure on native title land without requiring the consent of native title holders and registered claimants. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.22 The committee considers that the bill seeks to address overcrowding, poor housing conditions and other infrastructure needs of Aboriginal and Torres Strait Islander people on Indigenous held land through the timely provision of public infrastructure. This is a legitimate objective for the purpose of international human rights law, and the measure would appear to be rationally connected to that objective. The committee notes that some questions remain as to the proportionality of the measure.

1.23 In order to form a concluded view of the human rights implications of this bill, the committee seeks the minister's advice as to the matters set out at paragraph [1.19].

[2] The bill proposes to amend subparagraphs 24JAA(1)(d)(i) and (ii) of the Native Title Act 1993 to omit '10 years' and substitute '20 years'. Under the future acts regime, a future act must be done within 10 years of the commencement of subdivision JA. The bill extends the operation of subdivision JA for another 10 years.

[9] International Covenant on Economic, Social and Cultural Rights, article 11. See also, United Nations Human Rights Committee, General Comment No. 3: Article 2 (Implementation at a national level) and United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant) (1990) [8(g)].

[10] International Covenant on Economic, Social and Cultural Rights, article 13; United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 13: The right to education (article 13 of the Covenant) (1999) [6].

[11] International Covenant on Economic, Social and Cultural Rights, article 12; United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health (Art. 12) (2000) [9], [12].

[13] Statement of compatibility, p. 10. However, it is noted that the statement of compatibility does not contain information regarding the extent to which public housing and other infrastructure constructed or planned under the future acts regime is culturally appropriate and responsive to the needs of Aboriginal and Torres Strait Islander people as articulated by the communities themselves. Cultural adequacy is an important consideration in realising the rights to an adequate standard of living, health and education: United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant) (1990) [8(g)].

[14] International Covenant on Civil and Political Rights, articles 2 and 26; International Covenant on Economic, Social and Cultural Rights, article 2(2); International Convention on the Elimination of All Forms of Racial Discrimination, articles 1, 2 and 5.

[15] International Convention on the Elimination of All Forms of Racial Discrimination, article 1(4).

[17] United Nations Human Rights Council, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: The situation of indigenous peoples in Australia, A/HRC/15/37/Add.4 (2010) [21].

[18] United Nations Human Rights Council, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: The situation of indigenous peoples in Australia, A/HRC/15/37/Add.4 (2010) [21].

[19] United Nations Committee on the Elimination of Racial Discrimination, General Recommendation No. 32 (2009) [16]–[18].

[21] International Covenant on Civil and Political Rights, article 1; and the International Covenant on Economic, Social and Cultural Rights, article 1. See United Nations Committee on the Elimination of Racial Discrimination, General Recommendation 21 on the right to self-determination (1996).

[22] See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017)

pp.122–123. The United Nations Human Rights Council has recently provided guidance on the right to be consulted, as part of its Expert Mechanism on the Rights of Indigenous Peoples, stating that 'states' obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective' and that consultation does not entail 'a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up': United Nations Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) [15]–[16].

[23] See, in particular, United Nations Declaration on the Rights of Indigenous Peoples, article 19. While the Declaration is not included in the definition of 'human rights' under the Human Rights (Parliamentary Scrutiny) Act 2011, it provides clarification as to how human rights standards under international law, including under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights apply to the particular situation of Indigenous peoples. See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) pp. 122–123.

[24] United Nations Declaration on the Rights of Indigenous Peoples, article 32.

[25] United Nations Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) [3].

[26] Committee on the Elimination of Racial Discrimination, Concluding Observations on the eighteenth to twentieth periodic reports of Australia, CERD/C/AUS/CO/18-20 (2017) [21]-[22]; Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO/5 (2017) [15(e)]. The committee has previously stated that principle of 'free, prior and informed consent' should therefore be considered in the context of developing and amending native title legislation. See Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp.76–77.

[27] International Covenant on Economic, Social and Cultural Rights, article 15; and International Covenant on Civil and Political Rights, article 27. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 21: article 15 (right of everyone to take part in cultural life) (2009). The committee explains, at [6], that the right requires from a State party both abstention (including non-interference with the exercise of cultural practices) and positive action (including ensuring preconditions for participation, facilitation ad promotion of cultural life).

[28] See, Käkkäläjärvi et al.v Finland, UN Human Rights Committee Communication No.2950/2017 (2 November 2018) [9.8]–[9.10].

[30] The United Nations Committee on the Elimination of Racial Discrimination has called upon States parties to ensure that no decisions directly relating to the rights and interests of Indigenous peoples are taken without their informed consent: General Recommendation No. 23: Indigenous Peoples (1997) [4].

[31] International Covenant on Civil and Political Rights, article 2(3). See, Kazantzis v Cyprus, United Nations Human Rights Committee Communication No. 972/01 (2003) and Faure v Australia, United Nations Human Rights Committee Communication No. 1036/01 (2005): State parties must not only provide remedies for violations of the Covenant, but must also provide forums in which a person can pursuable arguable if unsuccessful claims of violations of the Covenant.

[32] See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

[33] When the future acts regime was first introduced, some commentators noted a lack of evidence to support the shift away from Indigenous Land Use Agreements (although there were some concerns raised regarding the effectiveness of Indigenous Land Use Agreements): see Claire Stacey and Joe Fardin, ‘Housing on Native Title Lands: Responses to the Housing Amendments of the Native Title Act’, Land, Rights, Laws: Issues of Native Title, vol. 4, no. 6, 2011, pp. 5–6.

[35] Elements of genuine consultation with Indigenous peoples include ‘adequate/formal notification; early involvement of the community; provision of information; adequate timeframes for native title parties to obtain advice, consult with other members and translate information into culturally accessible forms; and an opportunity to reach and record an agreement’: see Claire Stacey and Joe Fardin, ‘Housing on Native Title Lands: Responses to the Housing Amendments of the Native Title Act’, Land, Rights, Laws: Issues of Native Title, vol. 4, no. 6, 2011, p. 8.

[36] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018)

Australian Parliamentary Joint Committee on Human Rights