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Pritchard, Sarah --- "Native Title from the Perspective of International Standards" [1997] AUYrBkIntLaw 4; (1997) 18 Australian Year Book of International Law 127

Native Title from the Perspective
of International Standard[1]1

Sarah Pritchard[*]

I. Introduction

In 1992 in Mabo v Queensland (No 2) the High Court of Australia held that the common law of Australia recognises a form of native title to land.[2] The Court held that pre-existing rights to land survived colonisation and continue to exist today, where they have not been extinguished by legislation or by an action of government which shows a clear and plain intention inconsistent with the continued exercise of native title rights. The Federal Government responded to Mabo (No 2) with the passage of the Native Title Act 1993 (Cth) (NTA). In 1996 the new Federal Government introduced a Bill proposing a number of amendments to the NTA. Also in 1996, in Wik Peoples v Queensland, the High Court held that the granting of a pastoral lease did not necessarily extinguish native title, and that the rights of native title holders can coexist with those of pastoral leaseholders.[3]

In 1997 the Government introduced a Native Title Amendment Bill incorporating amendments to the NTA proposed in 1996, as well as amendments arising specifically out of the High Court’s Wik decision. After protracted rounds of debate in the Senate in November and December 1997, April 1998 and July 1998, the Native Title Amendment Bill was passed by the Senate on 8 July 1998. The Native Title Amendment Act 1998 (Cth) (NTAA) received the Royal Assent on 27 July. The commencement of its provisions on 30 September 1998 will conclude a turbulent period in Australian political life. Widely divergent assessments of its outcomes, especially its impact upon indigenous rights and interests, are likely to remain.

In the present article it is proposed to examine some international standards and decisions which bear on the complex issues which recognition of native title presents for the (non-indigenous) Australian legal and political system. In asserting their rights, law and sovereignty indigenous peoples are confronted by a number of difficult conceptual and political dilemmas. In Mabo (No 2), Wik and other native title cases greater recognition of aspects of indigenous law has been sought within and subject to the non-indigenous legal system. The difficulty is, as Maori lawyer Moana Jackson has said, that such adaptations to non-indigenous law and sovereignty “maintain the dishonesty of illusion and redefine [indigenous] rights within parameters of the state”.[4] On the one hand it is recognised that indigenous peoples have rights which came into existence in the pre-state/incorporation sphere. At the same time, the State is reassured that indigenous peoples are not autonomous from its authority and law.[5] That is, indigenous claims to recognition are made in and against a legal system that views indigenous/non-indigenous relations from the vantage point of the colonising power, a system that demands that political and legal institutions do not threaten basic organising categories of the colonial legal imagination.[6]

Such dilemmas pertain also to the “discourse” in international law on human rights and, more particularly, indigenous peoples’ rights. Nonetheless, indigenous peoples have recognised international legal constructions as a resource which can be used to reach out beyond the normative and political boundaries of the State and its law. Increasingly, the search for legal spaces in which indigenous identities can be negotiated and constructed by indigenous peoples themselves has been carried out in international fora and with reference to international norms. Former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson speaks of the “project of fully utilising the international human rights system”.[7] Noting that the Racial Discrimination Act 1975 (Cth) (RDA), the Land Rights (Northern Territory) Act 1976 (Cth) and the 1992 decision of the High Court in Mabo (No 2) are firmly grounded in international law, Dodson claims that it “is all about strategy and using every tool available”.[8] Native American lawyer Robert Williams Jnr has described the emergence of indigenous rights discourse in international fora in this way:

In challenging the exclusive jurisdictional claims of settler state governments to define the terms of their survival in the world, indigenous peoples have given voice to a new vision of the human rights that matter to them under international law. This vision seeks international legal recognition of indigenous peoples’ collective human rights to exist as culturally autonomous peoples, to continue in the peaceful possession of their traditionally occupied territories and to exercise greater self-determining autonomy over their ways of life.

When so much work needs to be done to transform the domestic laws of states that exercise jurisdiction and power over the terms of their survival in the world, why have indigenous peoples placed such great faith and efforts in the international human rights process? Like many other oppressed peoples who have appealed to the emerging discourse of international human rights in recent years, indigenous peoples recognise that international human rights laws and norms have come to assume a more authoritative and even constraining role on state actors in the world.[9]

Some of the issues which arise from recognition of native title include:

The jurisprudential basis of legislative and other measures which recognise the distinct identities of Aboriginal and Torres Strait Islander peoples, in particular those measures which seek to secure protection of their distinct relationship with their land and waters. Are such measures discriminatory? Are they prima facie discriminatory but redeemable as temporary “special measures” which recognise past and ongoing disadvantage and aim to assist indigenous Australians to catch up with the “mainstream”? Or are they implicit in or mandated by the principle of equality?

Limitations upon activities and measures which threaten indigenous cultures and ways of life and cultures of indigenous peoples. To what extent do rights to a cultural identity and to religious freedom impose restrictions upon development activities affecting indigenous communities, economic and social activities, and land and waters?

Aspirations of indigenous communities to participate in decisions which affect their lives and futures. To what extent are policy and decision makers required to consult with Aboriginal and Torres Strait Islander communities when contemplating decisions which affect them, in particular, decisions relating to the use and development of their land and waters? What is the meaning of “participation”?

Aspirations of indigenous peoples to control the economic development of their land and waters, including the exploitation of mineral resources. Do Aboriginal and Torres Strait Islander communities have a right to veto proposed developments pertaining to their land and waters? What is the basis of the “right to negotiate”?

I will contend that in grappling with these issues Australian governments can not disregard a growing body of international jurisprudence about human rights and, in particular, the rights of indigenous peoples. This body of jurisprudence suggests that native title — and aspects of the native title regime such as the right to negotiate — are not special privileges but are positive measures of protection necessary to achieve substantive racial equality and to accommodate the inherently different character of native title. As holders of a property right recognised by the Australian legal system, native title holders should be treated equally with other property holders. Accordingly, any legislative or other measures which wind back native title rights while other property rights are left alone or enhanced will run foul of the prohibition of racial discrimination.[10] International standards relevant to native title which will be examined include property rights, the prohibition of racial discrimination, rights of ethnic minorities/cultural rights, freedom of religion, self-determination/political participation rights, and the land and resource rights of indigenous peoples.

II. The Native Title Debate

Mabo v State of Queensland (No 2)

On 3 June 1992 the High Court of Australia handed down its historic decision in Mabo (No 2).[11]

The High Court rejected the view that Australia was terra nullius at the time of European colonisation and held that the common law of Australia recognises a form of native title to which the radical title of the Crown is subject. The Court held that native title might be extinguished only by legislation, by the alienation of land by the Crown, or by the appropriation of the land by the Crown in a manner inconsistent with the continuation of native title.

Native Title Act 1993 (Cth)

On 27 October 1992 the former Federal Labor Government commenced a process of consultation with State and Territory governments, Aboriginal and Torres Strait Islander organisations and industry to discuss the implications of and appropriate responses to the High Court’s decision. The first element of the Government’s response was the negotiation and passage of the NTA. The NTA received Royal Assent on 24 December 1993 and its operative provisions commenced on 1 January 1994. The main objects of the NTA are stated in s 3:

• to provide for the recognition and protection of native title;

• to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings;

• to establish a mechanism for determining claims to native title;

• to provide for, or permit, the validation of past acts invalidated because of the existence of native title.

The NTA recognises and protects the native title of Aboriginal people and Torres Strait Islanders in relation to land and waters which they possess under their traditional laws and customs and with which they have a connection, where these rights have not been extinguished by acts of governments.[12] The NTA also establishes a regime for the protection of native title rights in future dealings affecting native title land and waters (“future acts”). In the case of future acts, other than low impact future acts, native title holders are entitled to the same procedural rights as the holders of freehold title. For certain future acts, relating amongst other things to mining proposals, the 1993 NTA recognises an additional right of native title holders and claimants to negotiate, not a right to vote.[13]

The NTA validates past acts of the Commonwealth which might otherwise have been invalid because of the existence of native title. It enables States and Territories to validate past acts attributable to them. It provides a right to compensation for the effects of validation of past acts on the rights of native title holders since the enactment, in 1975, of the RDA. The Act establishes federal processes, including a National Native Title Tribunal (NNTT), for the determination of native title rights and of compensation for acts affecting native title. It also provides for the recognition of procedures established under State or Territory laws consistent with criteria prescribed in the NTA.

Native Title Amendment Bill 1996

A number of amendments to the NTA were proposed by the Federal Coalition Government through an Amending Bill of 27 June 1996 and its Exposure Draft of October 1996. Key elements of the proposed amendments included:

• a stringent new retrospective registration test for activating the right to negotiate in respect of mining (and some compulsory acquisition);

• substantial reduction or elimination of the right to negotiate through a discretionary power of the Minister to exclude exploration in deference to State/Territory regimes; otherwise, provision for a once-only right to negotiate at the exploration stage to cover both exploration and extraction; discretionary Ministerial powers to short-cut or by-pass the right to negotiate; limitation of the matters subject to negotiation; exclusion from the “expedited procedure” by-pass of the right to negotiate of any consideration of spiritual attachment to land;

• conversion of pastoral leases from term leases to perpetual leases and authorisation of non-pastoral activities, such as agricultural, commercial or tourism activities;

• enlarged responsibilities for Aboriginal and Torres Strait Islander representative bodies; and

• provision for wide-ranging indigenous land-use agreements.[14]

Wik Peoples v State of Queensland

On 23 December 1996 the High Court handed down its decision in Wik.[15]

The Court held that the granting of a pastoral lease did not necessarily extinguish native title and that the rights of native title holders can coexist with those of pastoral leaseholders. The Court recognised pastoral leases as a peculiar feature of the Australian legal system created to meet the particular needs of the emerging Australian pastoral industry. Pastoral leases did not give exclusive possession to pastoralists but gave them the right to use the land for pastoral purposes, while recognising the rights of indigenous peoples to continue to exercise their native title rights. The High Court held that in the event of inconsistency between rights of pastoralists and those of native title holders, the rights of pastoralists will prevail.

Responses to Wik

Following the High Court’s Wik decision, the National Indigenous Working Group on Native Title (NIWG), a national body representing major indigenous organisations, developed a proposal for a formal process of co-existence which “recognised and respected the rights and interests of all with a stake in the pastoral rangelands”.[16] In a statement of 23 April 1997, augmented by further statements of 8 and 23 May, the Prime Minister announced his Government’s “Ten-Point Plan” in response to the High Court’s decision.[17] The NIWG responded that the Ten-Point Plan was not “a fair and reasonable response to Wik ”. Instead, “it provided for a substantial up-grading of pastoralists’ rights, at the direct expense of indigenous peoples’ ability to enjoy the rights which have been recognised by the courts”.[18] The NIWG argued that the Ten-Point Plan would allow States to authorise more intensive use of pastoral land without negotiation with native title holders. The NIWG claimed that the Ten-Point Plan would extinguish conflicting native title rights, contrary to the decision in Wik in which the High Court held only that in the event of inconsistency native title rights yield to pastoralists’ rights, leaving open the possibility of revival of native title rights. In relation to the Ten-Point Plan’s discussion of the right to negotiate, the NIWG was concerned that the right of indigenous peoples to have a say about activity on their land would be seriously reduced. In relation to non-exclusive tenures such as pastoral leases, including former pastoral leases abandoned long ago, the Ten-Point Plan would eliminate native title holders’ right to negotiate altogether.

Native Title Amendment Bill 1997

On 4 September 1997 a Bill was introduced into the House of Representatives which incorporated the amendments to the NTA proposed in June and October 1996, as well as Wik-specific amendments.[19] The Native Title Amendment Bill 1997 (NTAB) generated considerable controversy within the community. Australians for Native Title and Reconciliation (ANTAR) expressed concern at the following aspects of the NTAB:[20] the number of provisions affecting outright, partial, de facto and retrospective extinguishment;[21] difficulties in obtaining compensation; cutting back of the right to negotiate; under-cutting of rural development negotiations;[22] the high threshold test for lodging claims, the short cut-off date for lodging claims and the restriction of claims to people with current physical access. On 20 September 1997 in a letter and media release responding to an advertisement in the Weekend Australian, Senator Nick Minchin accused ANTAR of “promoting a complete misrepresentation of the High Court’s Wik decision and the Federal Government’s 10 point plan”. The Senator described the NTAB as “a fair and balanced response to the uncertainties arising from the Wik decision and to the practical difficulties with the workability of the existing Native Title Act”.

The Senate Debates

The first round of Debate in the Senate took place between 25 November and 5 December 1997.[23] Both the Government and Opposition parties tabled a substantial number of amendments to the NTAB, with a majority of the amendments proposed by the Opposition parties (the Australian Labor Party, Australian Democrats, the Greens and Senator Harradine) being rejected. The most notable of the amendments moved by Opposition parties which were defeated in the Senate included those seeking to remove/modify the Government’s validation of intermediate period acts (that is, acts between the commencement of the NTA and the handing-down of Wik); the confirmation of the extinguishment of native title by interests deemed to confer “exclusive possession”; the retention of the sunset clause in relation to claims for compensation; and pastoral lease diversification through authorisation of acts within a broad definition of “primary production” without regard to native title holders. Key amendments to the NTAB made by the Senate include the removal of the sunset clause in relation to native title claims; the rejection of the physical connection test for registration of native title claims; retention of the right to negotiate on pastoral leases, in national parks and in cities and towns; retention of the existing right to negotiate at both the exploration and extraction stages; rejection of early Ministerial intervention in right to negotiate processes; suspension rather than extinguishment of native title on pastoral leases; and the capacity to make full claims on vacant Crown land and Aboriginal reserves regardless of previous lease history.[24]

The Senate passed the Bill as amended on 5 December 1997. The following morning, in an unusual Saturday session, the House of Representatives voted against the majority of the non-Government amendments made in the Senate. The Prime Minister moved a motion citing four main sticking points: the threshold test for registration; the right to negotiate; the proposal to make the NTA subject to the RDA; and the sunset clause. The NTAB was reintroduced early April 1998 (Native Title Amendment Bill 1997 [No 2]), including most of the amendments accepted by the House of Representatives in December 1997. The Senate was again unable to accept all aspects of the Government’s Bill and the House of Representatives again unable to accept all amendments adopted by the Senate. After the Senate’s second rejection of key aspects of the Native Title Amendment Bill there was much speculation about the prospect of a double-dissolution election to secure passage of the Government’s Bill through a joint sitting of both Houses of Parliament.

In late June 1998 the Prime Minister announced that agreement had been reached with independent Senator Brian Harradine over further amendments to the Government’s Bill which would enable Senator Harradine to support its passage through the Senate. Eighty-eight additional amendments were quickly passed by the House of Representatives and, after a lengthier debate, were finally accepted by the Senate on 7 July 1998. The amended Bill was passed by the Senate on 8 July. The NTAA received the Royal Assent on 27 July and most of its provisions will commence on 30 September 1998.[25]

Native Title Amendment Act 1998

The four sticking points cited by the Prime Minister in December 1997 were the threshold test for registration; the right to negotiate; proposals to make the NTA subject to the RDA; and the sunset clause. In relation to the threshold test for registration, the NTAA provides a substantially higher threshold test for the registration of claims; including that the factual basis of a claim must be sufficient to support the rights asserted; that prima facie some native title rights can be established; and the physical (rather than traditional) connection of at least one member of the claim group. There is an exception to the physical connection test where physical connection cannot be established because a parent was removed from their traditional country (s 190B(7)), but where connection of a parent is relied upon, registration can only be by court order. The amendments contained in the NTAA affect the right to negotiate in three broad ways. First, the range of matters to which the right to negotiate applies have been reduced. It is removed altogether from compulsory acquisition for private infrastructure projects not associated with mining (s 26(1)(c)(iii)). Private infrastructure projects associated with mining and compulsory acquisition for a third party in a town or city attract extra procedural rights. The right to negotiate is excluded altogether at the exploration stage in relation to acts “unlikely to have a significant impact on the particular lands or waters concerned”; and replaced with an alternative consultation scheme (s 26A). Second, State and Territory governments are empowered to replace the right to negotiate over large areas with their own regimes (subject to Commonwealth Ministerial approval and disallowance by either House of Parliament). The areas to which State and Territory regimes can apply include pastoral leases (past and present), land reserved for a public or particular purpose, national parks, and areas in a town or city (s 43A(2)). The standards for alternative regimes include many but not all of the procedural rights associated with the right to negotiate; in particular the requirement for good faith negotiations has been removed and the scope for consideration by an independent body reduced. Third, the new registration test will render the right to negotiate significantly more difficult to access.

A so-called “clause-buster” (proposed by the Democrats and Greens) designed to make the NTA in its entirety subject to the RDA was ultimately defeated. The effect of such a clause would have been to render inoperative any provisions in the NTA (as amended) which accord to native title rights treatment less than that accorded to the rights of other property holders. Such provisions might have included those relating to validation of intermediate period acts, legislative extinguishment, diversification up to full range of primary production activities without negotiating with native title holders (s 24GA), and other future acts of governments.[26] Instead the amendment ultimately adopted and reflected in the NTAA will ensure that the RDA will apply to the administration of all government native title regimes (including State and Territory regimes); and to the interpretation of ambiguous terms and provisions in the NTA as amended. This will leave little scope for challenging provisions of the NTA on the ground of inconsistency with the RDA[27]. Finally the Government backed down from its insistence upon the inclusion in the NTA of a sunset clause on claims either for the determination of native title or for compensation. Assessments of the outcomes of the so-called Howard/Harradine compromise differ widely, with indigenous leaders decrying the NTAA as an attack on the rights of indigenous Australians and a setback in the process of reconciliation.[28]

III. Property Rights

A first cluster of rights contained in international human rights instruments which bear on issues arising out of the recognition of native title are rights to property. Article 17 of the Universal Declaration of Human Rights[29] (UDHR) provides:

1. Everyone has the right to own property alone, as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Following the adoption of the UDHR in 1948, the international community split into two opposing economic and ideological blocs. Divergent notions of property ownership ensured that Article 17 was virtually ignored in the early development of UN human rights standards and procedures. It was not included in the catalogue of human rights articulated in 1966 in the International Covenant on Civil and Political Rights[30] (ICCPR) and the International Covenant on Economic, Social and Cultural Rights[31] (ICESCR). Following the end of the Cold War and the widespread (re)emergence of market economies, greater consensus has been possible with respect to the scope and content of Article 17.[32] It is not suggested that Article 17 can be relied upon to assert a concept of “absolute” protection of property. Rather, Article 17 contains a guarantee that deprivation of property shall not occur in an “arbitrary” manner (Article 17(2)) or in a manner capable of being construed as discriminatory (Article 17(1) in conjunction with the principle of non-discrimination). It has been suggested that the right to property, in this sense, has attained the status of customary international law, independent of its articulation in particular treaties.[33]

Numerous commentators have invoked Article 17 of the UDHR as a basis for the international legal recognition of the land claims of indigenous peoples,[34] and have argued that interference with the property rights of indigenous peoples constitutes a violation of Article 17, in conjunction with the principle of non-discrimination.[35] It is noteworthy that the 1965 International Convention the Elimination of All Forms of Racial Discrimination[36] (CERD) requires equality before the law without distinction as to race, colour or national or ethnic origin, including in the enjoyment of (Article 5(d)):

v. The right to own property alone as well as in association with others;

vi. The right to inherit.

In Australia recognition of property rights in the UDHR and CERD has been critical in securing protection against attempts to extinguish native title. In

Mabo v Queensland (No 1) the High Court of Australia held that the enactment of the RDA in implementation of Australia’s obligations under CERD limits the effect of an exercise of legislative or executive power by a State or Territory to extinguish native title or to otherwise interfere with the property rights of indigenous Australians.[37] A bare legislative extinguishment of native title was held to be inconsistent with the RDA and for that reason inoperative under s 109 of the Constitution. In 1993 the Parliament of Western Australia enacted the Land (Titles and Traditional Usage) Act 1993 (WA) which purported to extinguish common law native title in Western Australia and replace it with statutory “rights of traditional usage”. In the Native Title Act case,[38] the High Court subsequently declared the WA legislation to be inconsistent with the RDA and, by virtue of s 109 of the Constitution, invalid.

IV. Prohibition of Racial Discrimination

Of central relevance to the debate about recognition and the extent of native title rights in Australia is the international legal prohibition of racial discrimination. Its relevance arises in two ways: first, in connection with purported infringements of other international human rights guarantees, such as the right to own property; and second, as an autonomous right which both proscribes and requires particular conduct on the part of States.

The Charter of the United Nations,[39] signed on 26 June 1945 in San Francisco, provides a clear foundation for the international prohibition of racial discrimination. A principle purpose of the United Nations, enumerated in Article 1(3) of the Charter, is achievement of “international co-operation in … promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”. The prohibition of racial discrimination is recognised in all the major human rights instruments subsequently elaborated within the United Nations. The UDHR adopted in 1948, provides in Article 2:

Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 7 of the UDHR provides:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

The two human rights covenants, the ICCPR and the ICESCR, impose an obligation on States to respect and to ensure the rights recognised in them “without distinction of any kind, such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status”. Article 26 of the ICCPR contains a guarantee of the equality of all persons before the law and the equal protection of the law. It provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

CERD elaborates the prohibition of discrimination on the ground of race and specifies a range of obligations of States in relation to the elimination of racial discrimination. The following sections will consider the status of the prohibition of racial discrimination in international law, its content and its implications for indigenous rights in Australia.

A. Status of the prohibition of racial discrimination in international law

It is pertinent to consider the status of the prohibition of racial discrimination in international law. Or, more specifically, the international legal implications of overriding the RDA. In much of the discussion of how to respond to the High Court’s decision in Wik, most governments and non-indigenous “stakeholders” refused to discount the possibility of overriding the RDA in order to extinguish and/or diminish native title on pastoral leases.[40]

From an international perspective, it seems remarkable that there is so little consensus within Australia as to the inviolability of the prohibition of racial discrimination. Cavalier references to the RDA suggest that the norm of non-discrimination can be set aside at will, once its implications become inconvenient for the policy makers and legislators of the day. Such casual regard for the regime established under the RDA is at odds with the central importance of the prohibition of racial discrimination in the international legal order. The Charter itself provides the legal foundation for the prohibition of racial discrimination. As noted, the purposes of the United Nations are enumerated in Article 1 of the Charter, the third paragraph of which reads:

To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Article 55 of the Charter States that the UN shall promote:

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

In accordance with Article 56:

All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

In 1949, an authoritative commentary on the Charter provided the following account of the history of Article 56:

History of Article. The Dumbarton Oaks Proposals contained no such pledge. Apparently it was to be assumed that the commitment of the organization contained in the statement of purposes was enough. Some of the governments represented at San Francisco felt, however, that a more specific commitment to reinforce the statement of purposes and to make it clear that the Members obligated themselves to take individually the action to make the cooperation effective.[41]

In San Francisco, the Australian delegation pressed the view that in accordance with Article 56 “each Member should pledge itself to take independent action to achieve the purposes set forth in Article 55”.[42] In 1950, Hersch Lauterpacht commented on the Charter’s human rights provisions:

Members of the United Nations are under a legal obligation to act in accordance with these Purposes. It is their legal duty to respect and observe fundamental human rights and freedoms. These provisions are no mere embellishment of a historic document; they were not the result of an afterthought or an accident of drafting. They were adopted, with deliberation and after prolonged discussions before and during the San Francisco Conference, as part of the philosophy of the new international system and as a most compelling lesson of the experience of the inadequacies and dangers of the old. Nothing but most explicit terms of the Charter would justify the conclusion that these Articles were contemplated as being devoid of any effect from the point of view of either the legal obligation resting upon the Members or the duty incumbent upon the United Nations as a whole.[43]

The most eminent international publicists have confirmed the binding nature of the Charter’s human rights provisions.[44] A former member of the UN Committee on the Elimination of Racial Discrimination has commented on the words “without distinction as to race, sex, language or religion” in Article 55(c):

[T]he non-discrimination clause is worded as a clear legal obligation which is directly applicable without additional implementation … The non-discrimination clause at the end of the sentence does not have the function of a decoration or interpretation of the preceding passage … [T]his heterogeneous clause adds a normative element … The non-discrimination rule — referring mainly to race — even exists independently of the general obligation to promote human rights.[45]

In its 1971 Namibia Advisory Opinion, the International Court of Justice stated with respect to the Charter’s references to distinctions on grounds of race, that the “denial by [South Africa] of fundamental human rights is a flagrant violation of the human rights provisions of the Charter”.[46]

Referring to the Namibia Advisory Opinion, Schwelb notes that “the authority of the [International Court of Justice] is now clearly behind the interpretation of the human rights clauses of the Charter [imposing a legal obligation on UN Members] as presented almost a generation ago by Lauterpacht and others”.[47]

In the international legal literature there is considerable support for the view that in accordance with the Charter, States are responsible for gross violations of human rights. According to Ian Brownlie:

As treaty provisions applicable to the Organization and its members these prescriptions are of paramount importance … [W]hile it may be doubted whether states can be called to account for every alleged infringement of the rather general Charter provisions, there can be little doubt that responsibility exists under the Charter for any substantial infringement of the provisions, especially when a class of persons, or a pattern of activity, are involved.[48]

In addition to its status as a treaty obligation imposed by the Charter upon all Members of the United Nations, as well as contained in all major human rights instruments adopted within the framework of the UN, there exists widespread support for the view that the prohibition of racial discrimination has attained the status of customary international law. Moreover, the “principle of racial non-discrimination” has been characterised as one of the “least controversial examples of the class” of jus cogens.[49]

Jus cogens or peremptory norms of international law are overriding principles of international law, distinguished by their indelibility and non-derogability.[50] They cannot be set aside by treaty or by acquiescence. Other “least controversial” examples of jus cogens include the prohibition of the use of force, the prohibitions of genocide, slavery and apartheid, and the principle of self-determination.[51]

What are the implications of the foregoing analysis for issues arising out of the recognition of native title in Australia? It is suggested that acts of racial discrimination, committed in a systematic manner or on a large scale, and instigated or condoned as a matter of government policy, would see Australia in breach of the Charter, violate a peremptory norm of international law, and give rise to international responsibility.[52] The question arises: To whom is such responsibility owed? Recent developments have affirmed that State responsibility under multilateral human rights treaties and the customary law of human rights entails obligations not only to an “injured State”, but to the community of nations.[53] The European Commission of Human Rights has held that in claiming a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[54] a State party is not enforcing its own rights, or the rights of its nationals, but vindicating the public order of Europe.[55]

In the Barcelona Traction case the International Court of Justice held that all States have the right to vindicate erga omnes obligations:

[A]n essential distinction can be drawn between obligations of a State towards the international community as a whole, and those arising vis-a-vis another State … By their very nature, the former are the concern of all States. In the view of the importance of the rights involved, all States can be said to have an interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-universal character.[56]

These developments suggest therefore that the concept of State responsibility has implications not only in relation to other States participating in multilateral human rights treaty regimes but in relation to the entire international community, in particular where the human rights obligations which have been violated are of an erga omnes character.[57]

Moreover, more recent development suggest that State responsibility comes into play not only with respect to other States, but also with respect to individual victims of human rights violations subject to the jurisdiction of the offending State. In a 1982 Advisory Opinion the Inter-American Court of Human Rights affirmed that human rights treaties are binding on States that have agreed to them not only with respect to other States parties, but also with regard to individuals subject to their jurisdiction:

[M]odern human rights treaties in general, and the American Convention on Human Rights in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.[58]

Theo van Boven, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, has summarised developments relating to State responsibility for human rights violations as follows:

It may therefore be stated that the obligations resulting from State responsibility for breaches of international human rights law entail corresponding rights on the part of individual persons and groups of persons who are under the jurisdiction of the offending State and who are victims of those breaches.

Van Boven makes explicit the relationship between State responsibility for human rights violations and the right of victims to reparation:

The principal right these victims are entitled to under international law is the right to effective remedies and just reparations.[59]

B. The concepts of equality and non-discrimination and equality in international law

Before examining the relevance of the prohibition of racial discrimination for the native title debate in Australia, it is helpful to consider the content of the concepts of equality and non-discrimination in international law. Much of the discussion of native title as defined in Mabo (No 2) and Wik has been plagued by misunderstanding not only about the nature of native title, but more fundamentally about the nature of indigenous rights and their relationship to principles of non-discrimination and equality. It has been claimed by various “stakeholders” that indigenous rights are somehow additional rights or special privileges, the removal or narrowing of which would not offend the prohibition of racial discrimination. This argument was made with respect to amendments to the right to negotiate regime in the NTA,[60] to heritage protection legislation generally[61] and to the Hindmarsh Island Bridge Bill 1996, in particular.[62] During the second round of the Debate in the Senate April 1998, the Prime Minister explained in Parliament his opposition to a compromise “right to negotiate” clause for native title holders dealing with miners on pastoral leases: “It is fundamental to our kind of society that all Australians should be treated equally before the law. All Australians should be entitled to an equal dispensation of justice and all Australians should have equal responsibility before the law”.[63]

It appears that the native title debate — and the challenge of reconciliation between indigenous and non-indigenous Australians — would benefit from greater clarity in relation to the concepts of equality and non-discrimination.[64] The provisions of CERD are informed by reflection about the concepts of equality and non-discrimination which go back at least to the adoption of a system of treaties for the protection of minorities as part of the Paris Peace Settlement at the conclusion of the First World War. The League of Nations’ system for the protection of minorities produced a number of celebrated judgments. In its 1935 Advisory Opinion on Minority Schools in Albania the Permanent Court of International Justice stated that the idea underlying the Minorities Treaties was to secure for the minorities concerned the possibility of living peaceably alongside the rest of the population, whilst preserving their own characteristics. To attain this objective, measures were necessary:

(a) … to ensure that members of racial, religious or linguistic minorities should be placed in every respect on a footing of perfect equality with the other nationals of the State.

(b) … to ensure for the minority elements suitable means for the preservation of their own characteristics and traditions.[65]

According to the Court:

These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority. [66]

In a famous dictum in the 1965 decision of the International Court of Justice in the South West Africa case, Judge Tanaka stated:

The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal …

To treat unequal matters differently according to their inequality is not only permitted but required.

Judge Tanaka distinguished permissible from impermissible discrimination:

In the case of the minorities treaties the norm of non-discrimination as a reverse side of the notion of equality before the law prohibits a State to exclude members of a minority group from participating in rights, interests and opportunities which a majority population group can enjoy. On the other hand, a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not.[67]

As noted, Article 26 of the ICCPR contains a guarantee of the equality of all persons before the law and of the equal protection of the law. The Human Rights Committee, the body established to supervise implementation by States parties of their obligations under the ICCPR, has stated that Article 26 is not infringed “if the criteria for a differentiation are reasonable and objective and the aim is to achieve a purpose which is legitimate under the Covenant”.[68] In 1993 the Committee on the Elimination of Racial Discrimination adopted a General Recommendation on Article 1(1) of CERD, upon which s 9 of the RDA is based:

The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4 of the Convention … In considering whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.[69]

An analysis of the foregoing authorities allows the following conclusions. First, not all differences in treatment are discriminatory; that is, equality does not mean identical treatment without regard to concrete circumstances. A distinction is not discriminatory if the criteria for its adoption are objective and reasonable and it pursues a legitimate aim. Moreover special measures — or affirmative action — are sometimes required to redress inequality and to secure for the members of disadvantaged groups full and equal enjoyment of their human rights.[70] And finally, special regimes of minority rights in recognition of distinct cultural and religious identities are consistent with, and indeed sometimes required to achieve factual or substantive equality. The recognition and protection of the distinct rights of indigenous peoples is also implicit in the concept of equality.[71]

In an important jurisprudential development, on 18 August 1997 the Committee on the Elimination of Racial Discrimination adopted General Recommendation XXIII(51) concerning Indigenous Peoples. The General Recommendation confirms that “discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to eliminate such discrimination”. The General Recommendation calls on States parties to CERD to:

a recognize and respect indigenous distinct culture, history and language and way of life as an enrichment of the State’s cultural identity and to promote its preservation;

b ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;

c provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their economic characteristics;

d ensure that 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;

e ensure that indigenous communities can exercise their rights to practise and revitalise their cultural traditions and customs, to preserve and to practise their languages.

Of particular relevance to recent discussion of native title in Australia, the Committee called on States parties to:

recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and territories and resources and, where they have been deprived of their lands and territories traditionally used or otherwise inhabited or used without their free and informed consent, to take steps to return these land and territories. Only where this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.[72]

C. Discrimination and indigenous rights in Australia

What are the implications of the foregoing analysis for the current debate about native title in Australia? I would suggest that it is simply wrong to refer to positive measures to protect native title as discriminatory. Rather, positive measures to protect the unique and vulnerable nature of native title are a reasonable and proportionate means to achieve substantive equality, required as a matter of international obligation to safeguard indigenous cultural characteristics. Some of the present confusion as to the relationship of native title to broader notions of equality can, with respect, be attributed to the High Court’s characterisation in Gerhardy v Brown [73] of entry restrictions upon Pitjantjatjara lands as “special measures” for the purposes of CERD (Articles 1(1) and 2(4) and the RDA (s 8(1)).[74] On the approach of the majority the permit provisions of the Pitjantjatjara Land Rights Act 1981 (SA) would have been racially discriminatory, had they not been saved as special measures. The High Court rejected the submission of the appellant that the State legislation merely recognises and gives effect to traditional ownership and that there is no inconsistency between it and the Commonwealth RDA.[75]

The High Court did not accept that a distinction or differentiation must be arbitrary, invidious or unjustified for there to be discrimination. Instead, it endorsed an approach according to which all references to race, however benign and reasonable, are prima facie discriminatory, unless they come within the carefully circumscribed “special measures” exception.[76] The High Court’s understanding of equality requires, in effect, identical treatment without regard to actual inequality and concrete circumstances.[77]

It contrasts with international legal usage, according to which references to race are discriminatory only where they lack an objective and reasonable basis or a legitimate purpose. In international practice, a test of reasonable or legitimate classification seeks to ensure substantive rather than merely formal equality before the law.[78]

In a number of decisions, the High Court has indicated that it might be persuaded to depart from the understanding of discrimination reflected in Gerhardy v Brown. The Court’s decisions in Street v Queensland Bar Association [79] and Castlemaine Tooheys Ltd v South Australia [80]

suggest a move away from a formalistic towards a more contextualised understanding of equality. In those cases the High Court was concerned with Sections 92 and 117 of the Constitution and not with the particular legislative regime of the RDA. However, in the 1995 NTA case, the High Court appeared to place a question mark over the conceptualisation of the NTA as a special measure.[81]

In argument before the Court, the Commonwealth had submitted that the NTA was:

a seminal example of the way in which traditional cultural rights of indigenous minorities, particularly their right to land, can be protected and accommodated in a way that ensures equal protection of the law for that minority. [82]

The High Court neither endorsed nor rejected the approach urged by the Commonwealth. The Court squarely rejected the submission of Western Australia that the NTA discriminates in favour of Aborigines and Torres Strait Islanders and thus offends the RDA. In the first place, the Court had difficulty detecting any inconsistency between the two pieces of legislation. Even if there were any discrepancy in the operation of the two Acts, the NTA could be regarded:

either as a special measure under s.8 of the Racial Discrimination Act or as law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Racial Discrimination.[83]

As a vehicle for accommodating recognition of native title and other indigenous rights “special measures” are problematic. The concept of special measures implies that certain historically disadvantaged racial groups may require some special assistance in order to “catch-up” with other groups. The provisos in Articles 1(4) and 2(2) of CERD suggest that special measures are envisaged as a temporary response to disadvantage, aimed at achieving a specified result within a more or less definite period of time.[84] Thus, a permanent avenue for judicial review will exist in order to ascertain when the objectives of the special measures have been achieved.[85]

Also as the Chief General Counsel in the Attorney General’s Department noted in 1996 in relation to the Hindmarsh Island Bridge Bill, it remains open to the Parliament “to conclude that there is no longer a need for special … legislation to apply to a particular community or to a particular area or areas”.[86]

In a submission to the Senate Legal and Constitutional Legislation Committee in relation to the Hindmarsh Island Bridge Bill, the former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson argued that Commonwealth heritage legislation is not a special measure but a permanent measure to protect the heritage of indigenous Australians: “Part of the features of a special measure are that it is to overcome … disadvantage and is temporary in nature …” Heritage legislation, on the other hand, “is about spiritual and religious and heritage values” and “not about disadvantage in the socio-economic sense”. Mick Dodson has argued that it is similarly misconceived to talk of the NTA and, in particular, the right to negotiate as special measures.[87] Such an approach leads to the result that “Oh, because [the NTA] is a special measure and we gift it, we can do what we like with it”.[88]

An approach in accordance with international human rights law would conceptualise law and policy relating to native title not as prima facie discriminatory special measures, but as measures necessary to ensure the protection of distinct indigenous identities and safeguard the particular relationship of indigenous peoples with their land. A more contextualised understanding of equality, rather than construing all race-conscious distinctions as prima facie unlawful and saving some, exceptionally, as remedial measures designed to eliminate disadvantage in the equal enjoyment of human rights, instead has regard to cultural identity as an important aspect of a commitment to substantive equality. Thus, native title — and aspects of the native title regime, such as the right to negotiate — are not special privileges or additional rights, the removal of which would not offend the prohibition of discrimination. Such positive measures of protection are necessary to achieve substantive racial equality and to accommodate the inherently different character of native title, including the need of native holders to exercise, on an ongoing basis, a reasonable level of control over access to, and the use of their land.[89]

The same analysis applies to native title in relation to land subject to pastoral leases. In this context substantive equality and realistic coexistence require that native title holders are able to exercise some control over future developments affecting native title land.

It is not within the scope of the present article to subject all provisions of the NTAA to close analysis from the point of view of conformity with the international prohibition of racial discrimination. It suffices to note that native title holders should be treated equally with other property holders. Accordingly, any winding-back of native title rights while other property rights are left alone or enhanced will run foul of the norm of racial non-discrimination. Favouring the property rights of non-indigenous people over those of indigenous people — by substantially rolling back the right to negotiate, or by impairing the enjoyment of or affecting complete or partial extinguishment of indigenous property rights is inconsistent with the obligations imposed upon Australia under a number of treaties, as well as at customary international law.

V. Rights of Ethnic Minorities/Cultural Rights

The principal international guarantee of minority rights is found in Article 27 of the ICCPR, which provides that:

Members of ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

In international discussion of the rights of indigenous peoples, indigenous representatives have resisted attempts to limit their rights to those of ethnic minorities. They contend that their distinct historical experiences as the first peoples in territories subjected to processes of colonisation and their unique relationships with those territories give rise to particular rights. Nonetheless, there has been recognition that whilst “indigenous peoples” and “minorities” are not coextensive categories, neither are they mutually exclusive. The jurisprudence of the Human Rights Committee has demonstrated that Article 27 of the ICCPR can be of assistance in compelling States parties to recognise and secure the special relationship of indigenous peoples with their land, and to recognise the cultural importance and protect the enjoyment of indigenous economic activities.[90]

The Human Rights Committee has rejected a minimalist interpretation of Article 27 as imposing an obligation on States parties simply to refrain from activities interfering in the enjoyment of the rights under Article 27. In a General Comment adopted in 1994 the Committee stated that:

[P]ositive measures by States may … be necessary to protect the identity of a minority and the rights of its members. In their reports, States parties should indicate the measures they have adopted to ensure the full protection of these rights. … Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of the minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with other members of the group.[91]

The General Comment affirms the relevance of Article 27 for indigenous peoples:

[T]he Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.[92]

In a series of decisions (or “views”) pursuant to the First Optional Protocol to the ICCPR, the Human Rights Committee has confirmed the legitimacy of systems of distinct rights to ensure the cultural survival of indigenous collectivities.[93] In Kitok v Sweden, Ivan Kitok — a Sami — challenged Swedish legislation which sought to secure the existence of reindeer husbandry by restricting reindeer breeding to members of Sami communities. By pursuing other employment, Kitok had lost his breeding rights. The Sami community could have restored these rights but declined to do so. In Kitok’s case the Human Rights Committee affirmed that economic activities may come within the ambit of Article 27 where they are an essential element of the culture of an ethnic community. The Human Rights Committee found reindeer husbandry to be an essential element of Sami culture. The “right to enjoy one’s own culture in community” could not be determined in abstract, but had to be placed in context.[94]

On the facts of Kitok’s case restricting the number of reindeer breeders for economic and ecological reasons, and to secure the wellbeing of the Sami community, was reasonable and consistent with Article 27. Accordingly, there was no violation of Kitok’s rights under Article 27.[95]

In Ominayak v Canada, Chief Ominayak complained that the expropriation of the Lubicon Lake Band’s territories for the purpose of granting leases for forestry and for oil and gas exploration violated the Band’s rights under the ICCPR.[96] The Committee noted that:

Historical inequities … and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant.[97]

The decision in Ominayak’s case was based upon Rule 86 of the Committee’s rules of procedure. This allows the Committee to inform a State party as to the desirability of interim measures to avoid irreparable damage to the complainant (“victim”) prior to forwarding its final views.

In Lansmann v Finland the Human Rights Committee recalled that economic activities might come within the ambit of Article 27, if they are an essential element of the culture of an ethnic community. The Committee reiterated the view expressed in Kitok’s case that “the right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context”. In Lansmann’s case Sami reindeer breeders challenged the decision of the Central Forestry Board to award a contract allowing the quarrying of stone on the flank of the Etela-Riutusvaara Mountain, a sacred place of the old Sami religion. The “authors” contended that the quarrying and transport of stone would disturb their reindeer breeding activities and the complex system of reindeer fences determined by the natural environment. The Human Rights Committee rejected the submission of Finland that Article 27 only protects traditional means of livelihood of national minorities. The fact that the authors “may have adapted their methods of reindeer herding over the years and practice it with the help of modern technology” did not prevent them from invoking Article 27. Mountain Riutusvaara continued to have “a spiritual significance relevant to their culture”.[98] On the facts of the case, however, the Committee did not consider the impact of quarrying to be so substantial that it effectively denied to the authors “their right to enjoy their cultural rights in that region”. In reaching this conclusion, the Committee noted that the interests of the Herdsmen’s Committee of the authors were taken into account in the proceedings leading to the delivery of the quarrying permit, that the authors had been consulted during the proceedings, and that reindeer herding in the area did not appear to have been adversely affected by such quarrying as had occurred. The Committee concluded by noting that significant expansion of mining activities might constitute a violation of the authors’ rights under Article 27.

Indigenous peoples have begun exploring the limits of the right of their members, “in community with the other members of their group, to enjoy their own culture”. Kitok’s case is authority for a contextual approach to the right to culture. Ominayak’s case suggests that expropriation of indigenous land for the granting of forestry leases and exploration licences constitutes a violation of Article 27. Lansmann’s case supports the proposition that development which adversely affects indigenous cultural rights — including places of spiritual significance and the pursuit of economic and social activities — will be similarly contrary to Article 27. It is noteworthy that in its consideration of the first report submitted by the United States after ratification of the ICCPR, the Human Rights Committee recommended that the United States take steps “to ensure that previously recognised aboriginal Native American rights not be extinguished”.[99] In Australia, former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson frequently argued that extinguishment of native title would contravene Article 27 of the ICCPR.[100] The jurisprudence of the Human Rights Committee in relation to Article 27 suggests that in cases of interference with native title rights short of extinguishment it will be necessary to examine the actual impact upon the enjoyment of indigenous cultures and ways of life.

In recent years the international community has paid increasing attention to international legal guarantees concerning the rights of ethnic minorities. There is considerable support for the view that the rights of minorities have also attained the status of norms of customary international law. In connection with the dissolution of the Former Socialist Federal Republic of Yugoslavia, the Arbitration Conference of the European Community’s Peace Conference on Yugoslavia (the Badinter Commission) stated:

Where there are one or more groups within a State constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law … [T]he — now peremptory — norms of international law require States to ensure respect for the rights of minorities.[101]

VI. Freedom of Religion

Further international standards relevant to native title are those surrounding freedom of religion. CERD requires equality before the law without distinction as to race, colour or national or ethnic origin, including in the enjoyment of “the right to freedom of thought, conscience and religion” (Article 5(d)(vii)). Article 18 of the ICCPR contains a guarantee of freedom of thought, conscience and religion. In UN practice, the concept of religion has been interpreted broadly. The 1967 draft UN Convention on the Elimination of All Forms of Religious Intolerance defined “religion or belief” to include “theistic, non-theistic and atheistic beliefs”. A UN Special Rapporteur on Religious Intolerance has described religion as “an explanation of the meaning of life and how to live accordingly”: “Every religion has at least a creed, a code of action and a cult”.[102] Pursuant to their procedures for examining State reports, both the Committee on the Elimination of Racial Discrimination and the Human Rights Committee frequently seek information concerning the protection of the religions of indigenous peoples.[103] The guarantee of freedom of religion, in conjunction with the prohibition of discrimination, is likely to be at risk where measures threaten access to and control of sacred sites, skeletal remains, burial artefacts and other items of religious significance to indigenous Australians. More generally, it might be argued that religious freedom is jeopardised where the distinctive spiritual relationship of indigenous peoples with their land, waters and resources is denied or obstructed.

VII. Self-Determination/Political Participation Rights

Also relevant to native title are rights relating to self-determination and political participation. These relate both to procedural questions (such as the negotiation of a legislative response to the decisions in Mabo (No 2) and Wik), as well as to substantive aspects of the native title regime, such as the right to negotiate over mining and exploration activities. The broadest articulation of rights of political participation is found in the right of self-determination. Common Article 1 of the ICCPR and the ICESCR affirms that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The international community has long recognised that the right of self-determination involves external as well as internal aspects. Much of the controversy concerning the status of the right of self-determination in the post-colonial context has focused on the external aspects of self-determination. UN General Assembly resolution 2625 (XXV), the Friendly Relations Declaration, seeks to clarify the relationship between the principle of self-determination and principles of territorial integrity and national unity. The Friendly Relations Declaration provides that inviolability of territorial integrity will be enjoyed by those States “conducting themselves in accordance with the principles of equal rights and self-determination of peoples … and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”.[104] The Friendly Relations Declaration thus establishes that the right of self-determination does not normally entail a right of secession from independent States.[105] The early practice of the European Community in relation to the dissolution of the former Socialist Federal Republic of Yugoslavia also affirmed the cardinal importance of the principle of territorial integrity. In its Opinion No 2, the Arbitration Conference of the EC’s Peace Conference on Yugoslavia (the Badinter Commission) noted that:

[I]t is well-established that, whatever the circumstances, the right to self-determination must not involve changes to the existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise.[106]

In recent practice the contours of the internal dimensions of self-determination, in particular, are undergoing a process of refinement and elaboration. This practice has made clear that in addition to individual rights to participate in genuine periodic elections, the internal aspects of self-determination have implications for the institutional identities and participation of ethnic groups. In a General Recommendation adopted on 8 March 1996, the Committee on the Elimination of Racial Discrimination affirmed that self-determination has an internal as well as external aspect. The Committee noted that governments should be sensitive to the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the government of the country of which they are citizens. The Committee stated that governments should consider “within their respective constitutional frameworks, vesting persons belonging to ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups”.[107]

Article 3(3) of the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities[108] proclaims the right of such persons:

to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.

As noted, the Human Rights Committee’s General Comment on Article 27 states that the enjoyment by indigenous peoples of rights under Article 27 “may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”.[109] Recent practice thus suggests that with respect to ethnic groups the internal aspect of self-determination involves two dimensions: the right of such groups to retain and develop their own institutional identities, as well as to participate effectively in decisions which affect them.

To recognise that in its internal aspects, the right of self-determination can require institutional accommodation of ethnic minorities is not necessarily to posit such ethnic communities as subjects of the right of self-determination. In relation to the question of whether minorities, as such, are entitled to self-determination, there exists widely divergent opinion. In recent standard-setting concerning the rights of indigenous peoples, however, there has been recognition of the particular claims of indigenous peoples to self-determination. Recent standard-setting has resulted in the 1989 International Labour Organisation Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No 169) as well as the UN Draft Declaration on the Rights of Indigenous Peoples (UN Draft Declaration). Article 3 of the UN Draft Declaration[110] provides, in the language of common Article 1 of the ICCPR and ICESCR:

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic social and cultural development.[111]

In addition, both ILO Convention No 169 and the UN Draft Declaration contain provisions which recognise the right of indigenous peoples to participate in decision-making through representatives chosen by them, as well as to develop their own decision-making institutions. In relation to rights of political participation, Article 19 of the UN Draft Declaration provides:

Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

ILO Convention No 169, Article 6(1)(b) calls on Governments to:

establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them.

Article 20 of the UN Draft Declaration deals with a particular aspect of participation in decision-making, that is with respect to the elaboration of legislative and administrative measures:

Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them.

States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures.

A similar right is contained in Article 6(1)(a) of ILO Convention No 169, which provides that indigenous peoples have the right to be consulted:

through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.

The status of ILO Convention No 169 and the UN Draft Declaration are considered below.

VIII. International Standards on the Land and Resource Rights of Indigenous Peoples

A final cluster of international standards relevant to native title are those relating specifically to the land and resource rights of indigenous peoples. Both ILO Convention No 169 as well as the UN Draft Declaration contain a number of provisions concerning indigenous land and resource rights.

A. Distinctive Relationship

Both recognise the distinctive relationship of indigenous peoples with their land and waters. The UN Draft Declaration provides in Article 25:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.

ILO Convention No 169 recognises in Article 13(1) the importance “for the cultures and spiritual values of the peoples concerned of their relationship with their lands and territories”.

B. Ownership

Both recognise the right of indigenous peoples to own and control the use and development of their land, waters and other resources.[112] The Draft Declaration provides in Article 26:

Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.

Article 14(1) of ILO Convention No 169 states that: “The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised”. Unlike the Draft Declaration, Article 14(3) explicitly requires the establishment of procedures within national legal systems to resolve the land claims of indigenous peoples.

C. Restitution

Both the Draft Declaration and ILO Convention No 169 recognise the right of indigenous peoples to the return of land and resources taken without their consent. Where this is not possible, they are entitled to just compensation, generally in the form of land and resources. The Draft Declaration provides in Article 27 that:

Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status.

Article 16(4) of ILO Convention No 169 provides that in cases where indigenous peoples cannot return to their lands, they:

shall be provided with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

D. Resource Development

Both the Draft Declaration and ILO Convention No 169 recognise the right of indigenous peoples to determine strategies for the development of their land and resources. The Draft Declaration provides in Article 30 that:

Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 7 of ILO Convention No 169 recognises the right of indigenous peoples “to decide their own priorities for the process of development”. Article 7(3) requires that Governments ensure that studies are carried out “in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities”. Article 15(1) provides that:

The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

Article 15(2) requires that governments establish or maintain procedures for consultation with indigenous peoples “before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands”. The peoples concerned “shall, wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities”. Unlike the Draft Declaration, this does not provide indigenous peoples with a right to veto proposed developments by withholding their consent.[113]

Prior to the passage of the NTAA in 1998, it could be said that the regime established under the NTA corresponded approximately with the provisions of ILO Convention No 169 concerning land and resources. Whilst the NTA (prior to the 1998 amendments) also accorded with most aspects of the provisions of the UN Draft Declaration relating to land and resources, in a number of respects the native title regime developed in response to the High Court’s 1992 decision in Mabo (No 2)

fell short of the standards articulated in the Draft Declaration. For example, in accordance with this regime native title is not an absolute title but, subject to an additional right to negotiate in certain circumstances, is protected by law to the same extent as freehold title. Native title can be extinguished as a result of its voluntary surrender or under compulsory acquisition legislation. Compensation is payable for the compulsory acquisition of native title land and for other acts affecting native title if compensation would be payable for the same act done in respect of freehold land. There is no right to compensation for acts of dispossession which occurred prior to the enactment in 1975 of the RDA. Also, where a grant of a mining interest can be made over freehold land, it can also be made over native title land, subject to the right of native title holders to negotiate. Thus there was under the 1993 NTA a right to negotiate, not a right to veto proposed mining activities on native title or claimed native title land.[114]

It is clearly arguable that a number of the amendments to the NTA which passed the Senate in August 1998 are inconsistent with both ILO Convention No 169 as well as the Draft Declaration. Of particular concern are those amendments which facilitate a complete or partial extinguishment of native title on pastoral leases, the extent of the winding back of the right to negotiate and the high threshold test for lodging claims.

It remains finally to consider the formal status of the standards articulated in ILO Convention No 169 and the UN Draft Declaration. ILO Convention No 169 is a legally binding treaty, although one which — for a number of reasons — has not been ratified by Australia. It has been referred to by major international funding agencies such as the World Bank as the framework for policies and programs in relation to indigenous rights. It has been instrumental in shaping the Regional Fund for the Development of Indigenous Peoples of Latin America and the Caribbean.[115] At least one commentator has suggested that ILO Convention No 169 reflects an emergent minimum body of customary international law on indigenous rights.[116]

The Draft Declaration is the result of standard-setting undertaken in the Working Group on Indigenous Populations (WGIP), an independent, non-governmental body within the UN. It has not been adopted by the UN General Assembly, so its formal status is not that of a treaty or even of a declaration of the General Assembly. At the same time, irrespective of its formal status, the Draft Declaration possesses exceptional legitimacy in the eyes of the world’s indigenous peoples. The WGIP has provided previously unavailable formally structured opportunities for open dialogue and encounter between indigenous peoples and States. In the words of Robert Williams Jnr: “The Working Group has created a serious public space for encounter and dialogue, predominated by the high ideals, public values and formal diplomacy of the institutionalised international human rights standard-setting process.[117]

In the WGIP’s efforts in elaborating the Draft Declaration indigenous peoples’ own stories played a central role. Through these stories, and through appeals to the broadly stated standards contained in human rights instruments adopted under the auspices of the UN, indigenous peoples have sought to transform legal thought and doctrine about the human rights that matter to them under international law.[118] At a seminar in Sydney in 1995 Mathew Coone Come, Grand Chief of the Grand Council of the Crees, described the significance of the Draft Declaration in the following words:

Every paragraph of the Draft Declaration is based upon known instances of the violations of the human rights of indigenous peoples. There is nothing theoretical, abstract, or speculative about the substantive content of the Draft Declaration … The Draft Declaration … began a cry from the indigenous peoples for justice, and it is drafted to confirm that the international standards which apply to all peoples of the world apply to indigenous peoples. It is an inclusive instrument, meant to bring indigenous peoples into the purview of international law as subjects of international law.[119]

The Draft Declaration is a significant manifestation of a movement within international law, in the words of Native American lawyer Jim Anaya, “to develop, however grudgingly or imperfectly, to accommodate indigenous peoples’ demands”.[120]

Developments in the WGIP and elsewhere attest to a substantial level of international concern for indigenous peoples and a gradual convergence of international opinion about the content of indigenous peoples’ rights.[121] The Draft Declaration provides a moral framework for indigenous peoples’ rights, a tool for changing attitudes, a focus for dialogue and a basis for mobilising resources. It is difficult to predict whether the Draft Declaration will emerge unscathed from examination by States in the inter-governmental working group of the Commission on Human Rights. Indigenous negotiators will have a formidable task in defending the wording of the existing text in the face of many governments keen to secure major textual changes. Any document that does emerge will contribute to a growing body of customary international law in the area of indigenous peoples’ rights. Whilst the specific contours of these rights are still evolving, the core elements of a new generation of international norms are finding increasing acceptance.[122]

IX. Status of International Law in Australia

Discussion of international standards remains inconclusive in the absence of consideration of their status in the Australian legal system. Despite a commitment to internationalism in Australia’s recent human rights diplomacy, Australia has been, as Justice Michael Kirby has observed, one of the few countries to stand substantially outside the body of international human rights jurisprudence which has been developing since the end of the Second World War. Australia has no Bill of Rights around which human rights jurisprudence might have developed. Nor is there a regional human rights mechanism that might influence domestic law into conforming with international thinking on human rights issues.[123] In a small number of cases, international statements of human rights have been enacted as part of domestic law. Thus, as we have seen, in Mabo (No 1) [124] the High Court held that the enactment of the RDA in implementation of Australia’s international obligations under CERD limits the effect of an exercise of legislative or executive power by a State or Territory to extinguish native title. However, neither the RDA nor the Constitution prevents the Federal Parliament from enacting such laws. Generally speaking, where international standards have been enacted domestically, there are only weak mechanisms for ensuring compliance.[125]

An important step to redress Australia’s detachment from the international discussion of human rights was taken in 1991, with the accession by Australia to the First Optional Protocol to the ICCPR. This development enables the UN Human Rights Committee to receive and examine complaints that Australia has failed to comply with the human rights standards recognised in the ICCPR. In Mabo (No 2) the High Court explicitly endorsed the development of Australian law in conformity with the expectations of the international community. Justice Brennan, with whom Mason CJ and McHugh J agreed, said:

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.[126]

In numerous other cases as well, Australian courts have referred to international human rights standards in the development of the common law and resolution of statutory ambiguities.[127]

Finally, international discourse on indigenous rights has potential to enter into and transform domestic policy discourse. In Australia the Draft Declaration has had some impact on debate about indigenous issues. This is evident, for example, in the Aboriginal and Torres Strait Islander Commission’s (ATSIC) 1995 Report to Government on Native Title Social Justice Measures: Recognition, Rights and Reform which notes that recognition of the particular rights of indigenous peoples is gathering momentum through the Draft Declaration, as well as ILO Convention No 169. Recognition, Rights and Reform recommends that the Commonwealth Government commit itself to the “principles contained in existing and emerging international instruments as the basis for developing a comprehensive approach to the protection of indigenous rights”.[128] These would help guide action in such areas as cultural and intellectual property; recognition of customary law; flexible approaches to self-determination, including options of self-government and regional agreements; entitlements to land and compensation for dispossession, including the creation of new forms of co-extensive rights; and sharing in mineral and other resources.[129] Similarly, participants at the Australian Reconciliation Convention in May 1997 supported the “principles contained in existing and emerging international instruments (Draft Declaration on the Rights of Indigenous People) as the basis for developing a comprehensive approach to the protection of indigenous rights in Australia”.[130]

X. Recourse to International Complaints Procedures

Australia’s accession to the First Optional Protocol to the ICCPR on 25 September 1991 (entry into force for Australia on 25 December 1991) as well as the lodging on 28 January 1993 of a declaration recognising the competence of the Committee on the Elimination of Racial Discrimination to receive communications concerning violations of CERD, open new possibilities for the submission of complaints to UN human rights treaty bodies. The former Chief Justice of Australia Sir Anthony Mason recently commented:

Lord Lester of Herne Hill, a leading English lawyer and commentator, has expressed the view that: “The Covenant may yet prove to be a sleeping giant in Australia”.[131] In Australia, the Covenant, giant or not, yet remains dormant, so far as Aboriginal native title claims are concerned.[132]

It will be important that expectations in relation to international avenues of complaint remain realistic. First, they offer instances of last resort, that are available only upon exhaustion of domestic remedies. The process of exhausting domestic remedies can be notoriously lengthy, expensive and politically fraught. And second, the views of treaty bodies are of an advisory nature only. Ultimately, there is no guarantee that they will be acted upon by unfriendly governments. The Australian Government’s response to the adverse views of the Human Rights Committee in A’s case (the Port Hedland Detention case) does not give cause for particular optimism.[133]

It is nonetheless surprising that to date not a single complaint has been made by an indigenous Australian to the Human Rights Committee or the Committee on the Elimination of Racial Discrimination.

Finally, as well as the possibility of adverse decisions against Australia pursuant to individual complaints procedures, the Australian Government will also have to explain breaches of Australia’s international obligations in the State reporting procedure to the Human Rights Committee and the Committee on the Elimination of Racial Discrimination. In this connection it is noteworthy that Australia’s reports to UN treaty bodies are currently overdue.[134]

XI. Australia’s International Standing

Since 1945 international discourse about human rights has penetrated the carapace of national sovereignty and had a profound impact of national legal systems and jurisprudence. Over the past decade international discourse about indigenous rights has shifted dramatically. Indigenous peoples in all parts of the world have mobilised to renegotiate their relationships with States. In many countries this involves discarding constitutional doctrine that has conferred an air of legality upon indigenous dispossession. Fundamental processes of constitutional review and reallocation of power are taking place. These developments remind us that the accommodation of indigenous rights in Australia is not occurring in a vacuum, but within a framework of historically based rights and international standards and expectations.

In the past Australia has earned praise for the quality of its reporting and participation in the work of UN human rights bodies. A member of the Committee on the Elimination of Racial Discrimination has described the quality of the dialogue between Australia and that Committee as “exceptionally high”.[135] At the Commission on Human Rights and the Working Group on Indigenous Populations, Australia has been seen as seriously concerned to ensure that domestic legal and policy developments accord with relevant international human rights standards. It would be foolhardy to believe that significant breaches of the UN Charter and CERD, and an off-hand attitude to our international obligations, would have no repercussions in our bilateral and multilateral relations. Indeed in its Foreign and Trade Policy White Paper, In the National Interest, the Government has expressed its:

unqualified commitment to racial equality and to eliminating racial discrimination. This is a non-negotiable tenet of our own national cohesion, reflected in our racial diversity, and it must remain a guiding principle of our international behaviour. The rejection of racial discrimination is not only a moral issue, it is fundamental to our acceptance by, and engagement with, the region where our vital security and economic interests lie. Racial discrimination is not only morally repugnant, it repudiates Australia’s best interests.[136]

All Australians are challenged to prevent the spectre of “uncertainty” from allowing the momentum generated in Mabo (No 2) and Wik to dissipate, and to ensure that Australia does not beat an ignominious retreat from our international obligations relevant to native title.

XII. Conclusions

Despite the tensions inherent in seeking recognition and protection of indigenous values and ways of life through non-indigenous institutions and organising categories, indigenous representatives have increasingly appealed to international standards and procedures. In the words of Jim Anaya:

[E]xisting international procedures do provide certain limited means of coalescing international concern for the benefit of many of the world’s indigenous peoples, and these procedures have functioned in numerous instances to promote remedies for the violation of indigenous peoples’ rights in accordance with contemporary norms … [I]nternational law today includes a certain universe of norms and procedures that benefit indigenous peoples.[137]

In order to ensure their applicability in diverse national contexts, international human rights standards are generally formulated in abstract and open-ended language. The international standards I have suggested as relevant to native title — property rights, the prohibition of racial discrimination, rights of ethnic minorities/cultural rights, freedom of religion, self-determination/political participation rights and indigenous peoples’ land and resource rights — do not provide clear answers to every question which will arise in the operation of complex domestic policy and legislative schemes. They do, however, constitute a body of international jurisprudence which cannot be disregarded as Australian governments grapple with issues arising out of the recognition of native title. This body of jurisprudence suggests that native title — and aspects of the native title regime such as the right to negotiate — are necessary to ensure adequate protection of the distinct identities of indigenous peoples, to achieve substantive racial equality and to accommodate the inherently different character of native title. These standards also impose limitations upon development activities and other measures which affect the ways of life and cultures of indigenous peoples. They call for effective participation of indigenous peoples in decisions which affect their lives, in particular those relating to the use and development of their land and waters. They require that indigenous peoples exercise meaningful control over the economic development of their land and waters, including the exploitation of mineral resources. And finally, they prohibit any measures which extinguish or wind back rights of native title holders whilst leaving alone or upgrading rights of other property holders.


[1] An earlier version of this article was delivered at the forum Sharing Country: Land Rights, Human Rights and Reconciliation after Wik, 28 February 1997, Research Institute for Humanities and Social Sciences, University of Sydney.

[*] Senior Lecturer, Faculty of Law, University of New South Wales; Director, Australian Human Rights Centre; editor, Indigenous Peoples, The United Nations and Human Rights (1998).

[2] Mabo v Queensland (No 2) (1992) 175 CLR 1; (hereafter referred to as Mabo (No 2)).

[3] Wik Peoples v State of Queensland (1996) 141 CLR 129; (hereafter referred to as Wik).

[4] Jackson M, “Changing Realities, Unchanging Truths”, Commission on Folk Law and Legal Pluralism, Proceedings of the papers presented to the Congress at Victoria University of Wellington (1992) p 443 at 454.

[5] von Benda-Beckmann F, “Citizens, Strangers and Indigenous Peoples: Conceptual Politics and Legal Pluralism” (1997) 9 Law and Anthropology 1 at 27 ff.

[6] Macklem P, “Ethnonationalism, Aboriginal Identities, and the Law” in Levin M ed, Ethnicity and Aboriginality: Case Studies in Ethnonationalism (1993) p 1 at 11.

[7] Dodson M, “Linking International Standards with Contemporary Concerns of Aboriginal and Torres Strait Islander Peoples” in Pritchard S ed, Indigenous Peoples, the United Nations and Human Rights (1998) p 18 at 21.

[8] Ibid.

[9] Williams R Jnr, “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World” (1990) Duke Law Journal 660 at 668, 669–70.

[10] On the different understandings of equality advanced in recent debates surrounding indigenous rights in Australia, see nn 60–63 below and accompanying text.

[11] See n 2 above.

[12] Sections 3, 10, 223(1).

[13] With respect to certain types of development (essentially mining and the compulsory acquisition of native title in order to make a grant to a third party) native title holders were given additional rights to negotiate before the development or “act” can proceed (s 26). If the parties could not reach agreement after negotiation, any party could apply to the National Native Title Tribunal (NNTT) or State or Territory arbitral body for a determination (s 27). In making its determination, the relevant body was to take account of a number of factors, including the effect of the proposed act on the way of life, culture and traditions of native title holders; on the development of social, cultural and economic structures and on areas or sites of particular traditional significance; the interests and wishes of the native title holders in relation to the management, use or control of the land or waters concerned; and the economic significance of the proposed act to Australia and the relevant State or Territory (s 39). A determination of the NNTT or a State or Territory arbitral body could be overruled by the Commonwealth or the State or Territory Minister respectively (s 42). Under the native title regime, therefore, the right to negotiate is not a veto. The 1993 NTA regime gave native title holders a right to negotiate both at the exploration and development phases. Recent amendments to the NTA have substantially limited the extent of the right to negotiate: see nn 19–28 below and accompanying text.

[14] See Nettheim G, “Nailing Down Native Title” (1997) (4) 3 Indigenous Law Bulletin 13; also Aboriginal and Torres Strait Islander Commission, Proposed Amendment to the Native Title Act 1993: Issues for Indigenous Peoples (1996); Beckett S, “Workability in Whose Interest? The Native Title Amendment Bill 1996” (1996) (3) 84 Aboriginal Law Bulletin 4; Beckett S, “But Wait … There’s More! Federal Government Releases More Amendments to the Native Title Act” (1996) (3) 87 Aboriginal Law Bulletin 8.

[15] See n 3 above.

[16] National Indigenous Working Group on Native Title, Coexistence — Negotiation and Certainty: Indigenous Position in Response to the Wik Decision and the Government’s Proposed Amendments to the Native Title Act 1993 (1997).

[17] The Ten-Point Plan provided for, amongst other things: validation of acts between 1 January 1994 and 23 December 1996 (point 1); confirmation of extinguishment of native title on “exclusive” tenures such as freehold, residential, commercial and public works, as well as agricultural leases to “the extent that it can reasonably be said that … exclusive possession must have been intended” (point 2); permanent extinguishment of native title rights over current or former pastoral leases and any agricultural leases not covered under point 2 to the extent that those rights are inconsistent with those of the pastoralist (point 4); provision of statutory access rights to native title claimants pending determination of native title claim (point 5); in relation to mining on vacant Crown land, a higher registration test for claimants seeking the right to negotiate, as well as no negotiations at the exploration stage and only one right to negotiate per project. In relation to mining on other non-exclusive tenures such as current or former pastoral lease-holdings, the right to negotiate would continue to apply unless displaced by a State/Territory statutory regime which includes compensation (point 6); the ability of governments to manage water (including offshore) resources and airspace to be put beyond doubt (point 8). Further, the 1996 proposal for a higher registration for the right to negotiate would apply to native title claims generally. The Ten-Point Plan also proposed a sunset clause — that is, a date by which native title claims must be lodged, as well as “means to encourage States and Territories to manage claims within their own systems”.

[18] National Indigenous Working Group, “Critique of the Ten-Point Plan” (1997) (4) 3 Indigenous Law Bulletin 10; also Aboriginal and Torres Strait Islander Commission, The Ten-Point Plan on Wik and Native Title (1997).

[19] Clarke J, “The Native Title Amendment Bill 1997” (1997) (4) 6 Indigenous Law Bulletin 4; Aboriginal and Torres Strait Islander Commission, The Native Title Amendment Bill l997: Issues for Indigenous Peoples (1997).

[20] Australians for Native Title and Reconciliation, 9 Facts About Howard’s Wik Legislation (1997).

[21] ANTAR argued that native title would be extinguished forever on many types of land which are essentially public land (public works, land grants from one government to another or to a statutory authority, land subject to community purposes leases) even where there is minimal or no conflict between the public uses and native title uses; that native title rights inconsistent with pastoralists’ rights would be extinguished on all land which at any time since colonisation had been pastoral leasehold; that pastoralists would be permitted to upgrade to full primary production, and native title rights inconsistent with new primary production activities would be extinguished forever; and that hundreds of unlawful mining licences and leases issued by State governments between 1 January 1994 and 23 December 1996 would be retrospectively validated.

[22] ANTAR claimed that in order to obtain compensation, indigenous people would still need to prove native title, and that technical difficulties and expense would make compensation almost impossible to obtain; that gutting the right to negotiate over proposed developments would leave traditional owners with negligible ability to protect their heritage; and that the extinguishment of most native title and destruction of the Wik co-existence model would destroy any real incentive for negotiated agreements.

[23] See account in Burke P, “The Native Title Amendment Bill: What Happened in the Senate” (1998) (4) 9 Indigenous Law Bulletin 4.

[24] Ibid.

[25] Provisions relating to the interim regime for representative bodies will commence on 30 October 1998 and the new regime one year later (s 2, NTAA).

[26] See Burke P, “Evaluating the Native Title Amendment Act 1998” (1998) Australian Indigenous Law Reporter (forthcoming) citing advice of Faigenbaum QC and Moshinski published in Tenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Native Title Amendment Bill 1997 (1997) Appendix 4.

[27] See Burke, n 26 above.

[28] Ibid.

[29] Universal Declaration of Human Rights (UDHR), adopted 10 December 1948, GA Res 217 A (III), UN Doc A/810 at 71 (1948). The UDHR was adopted by 48 votes, with eight abstentions and none against. The abstaining States were Saudi Arabia, South Africa, and 6 members of the Eastern European bloc: Belarus, Czechoslovakia, Poland, Ukraine, Union of Soviet Socialist Republics (USSR) and Yugoslavia.

[30] International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966, entered into force 23 March 1976, GA Res 2200 A (XXI), UN Doc A/6316 (1966); 999 UNTS 171.

[31] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted 16 December 1966, entered into force 3 January 1976, GA Res 2200 A (XXI), UN Doc A/6316 (1966); 993 UNTS 3.

[32] This consensus is reflected in documents of the Organisation on Security and Cooperation in Europe (OSCE). See Rosas A, “Property Rights” in Rosas A and Helgesen J, eds, The Strength of Diversity: Human Rights and Pluralist Democracy (1992) p 133 at 134 f, 144.

[33] Ibid, p 144. This is an approach distinct from the international legal regime’s treatment of the protection of foreign-owned property: on the extensive literature and divergent approaches see Harris D, Cases and Materials on International Law 5th edn (1998) p 548 f.

[34] For example, Hannum H, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (1990) p 112 f; Lucas E, “Towards an International Declaration on Land Rights” (1984) 33 The Review (International Commission of Jurists) 61; Nettheim G, Indigenous Rights, Human Rights with Reference to Australia (1985) p 6.

[35] Already in 1950 Lauterpacht H, International Law and Human Rights (1950) p 342 f.

[36] International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adopted 21 December 1965, entered into force 4 January 1969, GA Res 20/2106A (XX), 660 UNTS 195, preamble, “affirms the necessity of speedily eliminating racial discrimination … and of securing understanding of and respect for the dignity of the human person”.

[37] Mabo v State of Queensland (1988) 166 CLR 186.

[38] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.

[39] Charter of the United Nations adopted 26 June 1945, entered into force 24 October 1945 (hereafter referred to as the Charter).

[40] In the two rounds of debate in the Senate — November/December 1997 and April 1998 — the complex relationship between the RDA and the NTA became a key sticking-point. For an account see Father Frank Brennan’s recent lectures “The Wik Debate: A Legitimate Quest for Workability and Certainty or Just Downright Intolerance”, The Second Freilich Lecture on Tolerance and Bigotry, Humanities Research Centre, Australian National University, 2 June 1998; “The Royal Commission into Aboriginal Deaths in Custody: Lessons for Wik”, The Inaugural Elliott Johnston Tribute, Adelaide Town Hall, Adelaide, 19 May 1998.

[41] Goodrich L and Hambro E, Charter of the United Nations: Commentary and Documents (1949) p 323.

[42] Ibid; also Wolfrum R, “Article 56” in Simma B ed, The Charter of the United Nations: A Commentary (1994) p 793.

[43] Lauterpacht, n 35 above, pp 147–148.

[44] According to Jessup, for example: “It is already the law, at least for Members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter, a treaty to which they are parties”. Jessup P, A Modern Law of Nations: An Introduction (1968) p 91; also Sloan B, “Human Rights, the United Nations and International Law” (1950) 20 Nordic Journal of International Law 30; Higgins R, The Development of International Law Through the Political Organs of the United Nations (1963) p 118; McDougal M, “Human Rights in the United Nations” (1964) 58 American Journal of International Law 603 at 613.

[45] Partsch K-J, “Article 55(c)” in Simma B ed, The Charter of the United Nations: A Commentary (1994) p 776 at 778, 780. Referring to the non-discrimination clause in the 1948 UDHR (Article 2), Partsch suggests that: “One should not forget that the non-discrimination clause in Art.55(c) [of the Charter] already imposed obligations. The corresponding clause in Art.2 of the Declaration is only a repetition …” ibid, p 783. According to Schwelb:

The International Convention on the Elimination of All Forms of Racial Discrimination is, to a large extent, declaratory of the law of the Charter, or, in other words, the basic principles of the convention lay down the law which binds also states which are not parties to the convention, but, as members of the United Nations, are parties to the Charter.

Schwelb E, “The International Court of Justice and the Human Rights Clauses of the Charter” (1972) 66 American Journal of International Law 337 at 351.

[46] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution (1970), ICJ Rep 1971, p 16 at 57.

[47] Schwelb, n 45 above at 350.

[48] Brownlie I, Principles of Public International Law, 4th edn, p 570; also Bagley T, General Principles and Problems in the Protection of Minorities (1950) p 49; Higgins, n 44 above, p 119; Jessup, n 44 above, p 87; Lauterpacht, n 35 above, p 145.

[49] Brownlie, n 48 above, p 513.

[50] Article 53 of the Vienna Convention on the Law of Treaties describes as a peremptory norm of international law “a norm accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

[51] Brownlie, n 48 above, p 513.

[52] It is unnecessary to determine whether a breach of the prohibition of racial discrimination constitutes an international crime. In describing breaches of international obligations, the International Law Commission has made a distinction between international crimes and international delicts. International crimes are breaches of international obligation “so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole” (Article 19(2)). These include serious breaches “on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide apartheid” (Article 19(3)(c)). International delicts are internationally wrongful acts which are not international crimes. See ILC Draft Articles on State Responsibility, Report of the International Law Commission (1996), UN Doc A/51/10, p 125. The ILC’s decision to provide a separate regime for criminal liability has not been uncontroversial: see Harris D, Cases and Materials on International Law, 5th edn (1998) p 487 ff and authorities cited therein.

[53] Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report Submitted by Mr Theo van Boven, Special Rapporteur, UN Doc E/CN.4/Sub.2/1993/8, para 44; (hereafter referred to as the van Boven Report).

[54] European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221.

[55] “In becoming a Party to the Convention, a State undertakes, vis-a-vis the other High Contracting Parties, to secure the rights and freedoms defined in Section I [of the European Convention] to every person within its jurisdiction, regardless of his or her nationality or status … The obligations undertaken by the High Contracting Parties in the Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves”. Austria v Italy Application No 788/60 [1961] Yearbook of the European Convention on Human Rights (1962) at 116; generally Meron T, Human Rights and Humanitarian Norms as Customary Law (1989) p 159–160, 204–205.

[56] Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Rep 1970, p 3 at 32.

[57] van Boven Report, n 53 above.

[58] The Effect of Reservations of the Entry into Force of the American Convention, Advisory Opinion, OC–2/82 of 24 September 1982, Inter-American Court of Human Rights, Series A, Judgments and Opinions, No 2, para 29; see also Artucio A, “Impunity of Perpetrators” Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (1992) p 182 at 190.

[59] van Boven Report, n 53 above.

[60] See for example the characterisation by Senator Minchin of the right to negotiate as a “special privilege” because “Aborigines have these special rights that other Australians don’t have”. Sydney Morning Herald (1 June 1996) p 138; also Parliament of the Commonwealth of Australia, Seventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Native Title Amendment Bill 1996 and the Racial Discrimination Act (1996) p 28.

[61] See Chief General Counsel, Attorney-General’s Department, Senate Legal and Constitutional Legislation Committee, 29 November 1996, p 86. The Committee agreed with the opinion provided to it by the Attorney-General’s Department: see Senate Legal and Constitutional Legislation Committee, “Consideration of Legislation Referred to the Committee: Hindmarsh Island Bridge Bill 1996”, December 1996, p 19. See also evidence of Mr Stephen Palyga, Solicitor for Tom and Wendy Chapman, Senate Legal and Constitutional Legislation Committee, 29 November 1996, p 120.

[62] Ibid.

[63] Cited in Brennan, “The Wik Debate”, n 40 above.

[64] See generally Pritchard S, “Special Measures” in Race Discrimination Commissioner, Racial Discrimination Act 1975: A Review (1995) p 195.

[65] Minority Schools in Albania (1935) PCIJ Ser A/B No 64, p 17.

[66] Ibid. In 1947, the Sub-Commission on Prevention of Discrimination and Protection of Minorities suggested that the drafting of articles on the prevention of discrimination and protection of minorities might be facilitated by the following considerations:

1. Prevention of discrimination is the prevention of any action which denies to individuals or groups of people equality of treatment which they may wish.

2. Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics they possess and which distinguish them from the majority of the population … It follows that differential treatment of such groups or individuals belonging to such groups is justified when it is in the interest of their contentment and the welfare of the community as a whole.

The Main Types and Causes of Discrimination, UN Sales No 49.XIV.3 (1949), paras 6–7; see also Capotori F, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Sales No E.91.XIV.2 (1977), para 239. A memorandum prepared in 1949 by the UN Secretariat refers to the text of the Sub-Commission and concludes:

Thus the prevention of discrimination means the suppression or prevention of any conduct which denies or restricts a person’s right to equality. The protection of minorities, on the other hand, although similarly inspired by the principle of equality of treatment of all peoples, requires positive action: concrete service is rendered to the minority group, such as the establishment of schools in which education is given in the native tongue of the members of the group. Such measures are of course also inspired by the principle of equality. If a minority wishes for assimilation and is debarred, the question is one of discrimination and should be treated as such.

UN Doc E/CN.4/52 (1947), Section V.

[67] South West Africa, Second Phase, Judgment, ICJ Rep 1966, p 6 at 303–4, 305. In his 1977 Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities the Special Rapporteur of the Sub-Commission, Francesco Capotorti observed that the concept of non-discrimination “implies a formal guarantee of uniform treatment … whereas the concept of protection of minorities implies special measures”. Although distinct, the two concepts were closely linked: “The purpose of these measures is to institute factual equality between the members of the minority group and other individuals”.

[68] In a General Comment adopted in 1989 the Human Rights Committee confirmed that affirmative action — or positive discrimination — by States parties might sometimes be mandatory to implement the Covenant’s prohibition of discrimination and to improve the status of disadvantaged groups:

The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to a part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant. Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

General Comment 18 (1989), paras 10, 13; in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) p 28.

[69] General Recommendation XIV (1993), para 2; in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) p 68.

[70] The extent to which the measures called for by Article 26 ICCPR include affirmative action to establish de facto equality in a particular situation has not yet been the subject of an individual communication. In the State reporting procedure, however, States parties are frequently asked about the positive measures they have taken to counteract existing discrimination: Nowak M, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) p 477. With reference to Article 26, an officer with the UN Centre for Human Rights has suggested that:

it would … be conceivable that a member of a minority could submit a case demanding affirmative action, if such action is necessary for him or her to exercise Covenant rights on a basis of equality with members of the majority”.

de Zayas A, “The International Judicial Protection of Peoples and Minorities”, in Brolmann C et al eds, Peoples and Minorities in International Law (1993) p 253 at 269. In relation to the special measures provisions of CERD (Articles 1(1) and 2(4)), a former Secretary of the Committee on the Elimination of Racial Discrimination has commented:

While Article 1(4) allows for the continuation in a State party of certain affirmative programs for groups which have suffered from discriminatory practices, Article 2(2) actually imposes an obligation to undertake such affirmative actions. This provision is of immense importance for racial or ethnic groups and, given the extent to which it surpasses the obligations in Article 27 of the International Covenant on Civil and Political Rights in creating a regime of minority group rights, it is surprising that it has received so little attention from academics and NGOs.

O’Flaherty M, “Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination” in Pritchard S ed, Indigenous Peoples, the United Nations and Human Rights (1998) p 162 at 171.

[71] See generally Pritchard, n 64 above; also Bayefsky A, “The Principle of Equality or Non-Discrimination in International Law” (1990) 11 Human Rights Law Journal 1 at 27.

[72] UN Doc CERD/C/51/Misc.13/Rev 4 (1997) paras 4–5.

[73] David Alan Gerhardy v Robert John Brown [1985] HCA 11; (1985) 159 CLR 70. The Preamble to the NTA, as well, states: “This law, together with the initiatives announced at the time of its introduction and others agreed upon by the Parliament from time to time, is intended, or the purposes of the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders”.

[74] Section 8(1) of the RDA posits “special measures” as an exception to the general prohibition of racial discrimination in the Act.

[75] The Solicitor-General of South Australia, for the appellant, had submitted that: “There is no discrimination within s 9 when there is an objective or reasonable justification in the distinction, exclusion, restriction or preference. For there to be discrimination the distinction or differentiation must be arbitrary, invidious or unjustified … The distinction here is not based upon race as such, but on the recognition of the traditional owners of the land”. See n 73 above, at 72. Intervening in support of the appellant, the Solicitor-General for the Commonwealth had argued similarly: “Section 19 contains no provision, nor does it enter into any field, relating to racial discrimination. Rather, it provides legal recognition to a certain type of legal interests in land not previously recognized, namely traditional ownership. It is based on traditional ownership not race”. Ibid, at 72. Also intervening by leave, Counsel for the Anangu Pitjantjatjara had described the State Act as:

a legislative restoration of rights, benefits and privileges in relation to those lands to those people who have, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibility for, the lands … It does not contain any provision, nor does it enter upon the field, relating to racial discrimination. The criterion employed is based not on race but on traditional ownership. There is no direct inconsistency. Ibid, at 72.

[76] According to Mason J, for example: “I … regard the conclusion as inevitable that the effect of the State Act is to discriminate by reference to race, colour or origin because eligibility to enjoy the right which the statute confers depends in the manner described on membership of the Pitjantjatjara peoples. Ibid, at 103.

[77] Academic criticism of the conceptual basis of the Gerhardy decision is well-known: Brownlie I, “Rights of Peoples in International Law” in Crawford J ed, The Rights of Peoples (1988) p 1 at 9; Nettheim G, “Indigenous Rights, Human Rights and Australia” (1987) 61 Australian Law Journal 291 at 299. Sadurski W, “Gerhardy v Brown: Reflections on the Landmark Case that Wasn’t” [1986] SydLawRw 2; (1986) 11 Sydney Law Review 5 at 30; also Pritchard S, “International Law” in Aborigines and Torres Strait Islanders, Laws of Australia (1993) at 34–35.

[78] McKean W, “The Meaning of Discrimination in International and Municipal Law” (1970) 44 British Yearbook of International Law 178 at 185–186; also Lustgarten L, Legal Control of Racial Discrimination (1980) p 3–37; Vierdag E, The Concept of Discrimination in International Law (1973) pp 86–89. The Australian Law Reform Commission (ALRC) has endorsed an interpretation of CERD as prohibiting only invidious discrimination. The ALRC’s 1986 report on Recognition of Aboriginal Customary Law concludes that the prohibition of discrimination:

does not preclude reasonable measures distinguishing particular groups and responding in a proportionate way to their special characteristics, provided that basic rights and freedoms are assured to members of such groups. Nor does it preclude ‘special measures’, for example for the economic or educational advancement of groups or individuals, so long as these measures are designed for the sole purpose of achieving that advancement, and are not continued after their objectives have been achieved.

The Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) paras 150, 158.

[79] [1989] HCA 53; (1989) 168 CLR 461. Street’s case involved the interpretation of s 117 of the Constitution which provides: “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were the subject of the Queen resident in any other State”. Brennan J stated: “When it is necessary to treat a protected person differently on the ground of out-of-State residence … that ground reflects the fact that the protected person is in a position which is relevantly and necessarily different from the position she or he would be in if she or he were an in-State resident … Such different treatment is not truly discriminatory”. Ibid, at 513–514. Justice Gaudron made the following observations:

Although in the primary sense ‘discrimination’ refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. … The question whether different treatment assigned by reason of a relevant difference is appropriate to that difference is one which is peculiarly apt to an identified and relevant circumstance.

Ibid, at 570–571, 573. See discussion in Morgan J, “Equality Rights: A Feminist Assessment” in Alston P ed, Towards an Australian Bill of Rights (1993) p 123 at 140–142.

[80] [1990] HCA 1; (1990) 169 CLR 436. In Castlemaine Tooheys Ltd v South Australia the High Court had to consider whether a legislative regime which conferred a competitive advantage in the South Australian market was discriminatory and therefore infringed s 92 of the Constitution. Section 92 provides: “On the imposition of uniform duties of customs, trade, commerce and intercourse among the States … shall be absolutely free”. Justices Gaudron and McHugh referred to Gaudron J’s discussion in Street’s case of the general features of a discriminatory law and continued:

A law is discriminatory if it operates by reference to a consideration which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory, if although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference or, in other words, if it treats equally things that are unequal — unless, perhaps there is no practical basis for differentiation. Ibid, at 478.

[81] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.

[82] Western Australia v Commonwealth; Wororra Peoples and Yawuru Peoples v State of Western Australia; Teddy Biljabu v State of Western Australia (1995) 183 CLR 370, Transcript of Proceedings at Canberra on Monday, 12 September 1994, at 370. The NTA was, so the Commonwealth’s submission, “a specific measure designed to address a specific instance of lack of equality before the law in enjoyment of certain rights”. This made it not a special measure within the sense of s 8(1) of the RDA and Articles 1(4) and 2(2) of CERD, but a “reasonable and proportionate means of achieving substantial equality” as required “as a matter of international obligation” by Article 5 of CERD and Article 27 of the ICCPR. Ibid, at 371.

[83] Teddy Biljabu v State of Western Australia, ibid, at 434.

[84] Sanders D, “The Re-emergence of Indigenous Questions in International Law” (1983) Canadian Human Rights Yearbook 16 at 23.

[85] Or when, in the words of Gibbs CJ, the special measures have “degenerate[d] into discrimination” Gerhardy v Brown, n 73 above, at 88–89 (Gibbs CJ), also 105–6 (Mason J), 108 (Murphy J), 113 (Wilson J), 139 (Brennan J).

[86] “Re: Hindmarsh Bridge Bill: Opinion”, 27 November 1996, at 2.

[87] Senate Legal and Constitutional Legislation Committee, 29 November 1996, at 93; also Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1995–June 1996 (1996) p 2; Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 17 October 1996, at 3108–9, 3300–1.

[88] Senate Legal and Constitutional Legislation Committee, 29 November 1996, at 94.

[89] According to the former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson: “the right to control access to and activities on traditional estates is a consistent feature of Australian indigenous law”. Dodson, n 87 above, p 18. See also submission of Cape York Land Council to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Native Title Amendment Bill 1996:

[N]on-indigenous land titles derive from Parliament and the English feudal system of land tenure; native title is rooted in traditional law and custom for the particular area. It makes sense that achieving equal protection for these differently constituted titles may involve the use of quite different legal mechanisms — in other words, the achievement of non-discrimination through substantive rather than formal equality. The [right to negotiate] protects a basic incident of native title: the right to control access and activity on indigenous land. It is a measure to achieve substantive equality. The High Court has shown increasing interest in ‘substantive equality’ as a litmus test for non-discrimination. Amendments which tear at the heart of a basic incident of native title will not satisfy such a test.

Cape York Land Council, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Native Title Amendment Bill 1996 (1996) p 3. This approach was endorsed in the minority report: Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, The Native Title Amendment Bill 1996 and the Racial Discrimination Act: Second Minority Report (1996) pp 14, 19.

[90] See Lovelace v Canada, Communication No 24/1977, Selected Decisions of the Human Rights Committee Under the Optional Protocol, UN Doc CCPR/C/OP/1 (1988) pp 86–90; Kitok v Sweden, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), paras 9.2, 9.3, 9.8; Chief Ominayak v Canada, Communication No 167/1984, Report of the Human Rights Committee UN Doc A/45/40 (1990), vol 2, p 1, para 32.2; Lansmann v Finland, Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994) para 9.3.

[91] General Comment 23 (1994), para 6.2; in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) p 40.

[92] Ibid, para 7.

[93] See Sanders D, “Collective Rights” (1991) 13 Human Rights Quarterly 368 at 379–80.

[94] The Committee was required to find a balance between the rights of Kitok and the rights of the Sami community to which he belonged. The Committee noted that “a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole”. Kitok v Sweden, n 90

above, para 9.3. [95] Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), paras 9.2, 9.3, 9.8.

[96] Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990). The Human Rights Committee declined to consider whether the Lubicon Lake Band constituted a people under Article 1 of the Covenant. Instead, the Committee found a violation of Article 27, recognising that: “the rights protected by article 27, include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong”. para 9.3. See McGoldrick D, “Canadian Indians, Cultural Rights and the Human Rights Committee” (1991) 40 International and Comparative Law Quarterly 658.

[97] Ominayak v Canada, n 96 above, para 9.3.

[98] Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3.

[99] UN Doc CCPR/C/79/Add.50 (1995), para 37.

[100] For example, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January–June 1994 (1995) p 65.

[101] Opinion No 2, (1992) 92 International Law Reports 167.

[102] Benito EO, Elimination of All Forms of Intolerance and of Discrimination Based on Grounds of Religion or Belief (1989) para 19 UN Sales No E.889.XIV.3.

[103] Ibid, p 68 f. In a section dealing with freedom of religion, Australia’s second periodic report to the Human Rights Committee refers to measures to protect Aboriginal sacred sites: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Second Periodic Reports of States Parties Due in 1986: Australia, UN Doc CCPR/C/42/Add.2 (1987), para 459.

[104] The UN General Assembly’s 1970 resolution 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, provides:

Nothing in the foregoing paragraphs shall be interpreted as authorizing or encouraging any action which could dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples … [a]nd thus possessed of a government representing the whole government belonging to the territory.

[105] See also Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, 25 June 1993, para 4.

[106] Opinion No 2, n 101 above.

[107] General Recommendation XXI (48), adopted at the 1147th meeting, 8 March 1996, UN Doc HRI/GEN/1/Rev.3 (1997).

[108] UN Doc A/Res/47/135.

[109] Ibid, para 7.

[110] In 1982 a five member expert UN Working Group on Indigenous Populations (WGIP) was established to (i) review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations; and (ii) give special attention to the evolution of standards concerning the rights of such populations (ECOSOC resolution 1982/34). In 1985 the WGIP decided to produce “a draft declaration on indigenous rights” for eventual adoption by the General Assembly. In July 1993 the WGIP agreed upon a final text of the Draft Declaration on the Rights of Indigenous Peoples. In 1994 the WGIP submitted the text of the Draft Declaration to its parent body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (UN Doc E/CN.4/Sub.2/1994/2/Add.1). At its forty-sixth session in 1994 the Sub-Commission adopted the text of the Draft Declaration and decided to submit it to the Commission on Human Rights (CHR) (Sub-Commission resolution 1994/45). At it fifty-first session in 1995, the CHR decided to establish an open-ended inter-sessional working group “with the sole purpose of elaborating a draft declaration, considering the draft … of the Sub-Commission…” (Commission on Human Rights resolution 1995/32). The CHR inter-sessional working group (CHRWG) has held three sessions in Geneva. These sessions have seen a general discussion on the Draft Declaration and the scope of its application, the beginning of a first reading, and the adoption at first reading of two particularly non-controversial provisions: see Pritchard S, “The United Nations and the Making of a Declaration on Indigenous Rights” (1997) (3) [1983] AboriginalLawB 28; 19 Aboriginal Law Bulletin 4; Pritchard S, “Commission on Human Rights Working Group (CHRWG) Third Session 27 October–7 November 1997” (1998) (4) 10 Indigenous Law Bulletin 4.

[111] In the WGIP indigenous peoples’ organisations consistently maintained that the right to self-determination is the pillar upon which all other provisions of the Draft Declaration rest, and reacted vigorously against attempts to limit its parameters to the conduct of their internal affairs. For example, in 1993 it was stated that:

It is the position of the indigenous delegates … that self-determination is the critical and essential element of the Draft Universal Declaration on the Rights of Indigenous Peoples. Discussion on the right of self-determination has been and still is the sine qua non of our participation in the drafting process. The right of self-determination must therefore be explicitly stated in the declaration … We will not consent to any language which limits or curtails the right of self-determination.

Position of the Indigenous Delegates on Self-Determination, Working Group on Indigenous Populations, Eleventh Session, 20 July 1993. At the following session of the WGIP in 1994 former Aboriginal and Torres Strait Islander Commission Chairperson Lois O’Donoghue elaborated:

The call for self-determination in the Declaration on the Rights of Indigenous Peoples is not a new or different right that applies to us as indigenous peoples. The emphasis in the Declaration highlights the historical fact that this right has been denied to us. Self-determination for the member states of the United Nations has taken many forms. The same will happen, I believe, in the evolution of self-determination for indigenous peoples. There is not a single future to which we must conform, there are multiple futures. And multiple futures within the same environment. Our experience in Australia, for example, reinforces this message. We have ATSIC as an example and we have the Torres Strait Regional Authority. There are presently aspirations for autonomous self-governing States among some of our indigenous communities.

See generally Pritchard S, The United Nations Draft Declaration on the Rights of Indigenous Peoples: An Analysis (1996). The third session of the Commission on Human Rights Working Group on the Draft Declaration (CHRWG) in 1997 saw a far-reaching debate on Article 3 and the crystallisation of a number of different positions of States in relation to the right of indigenous peoples to self-determination: see Pritchard, “Commission on Human Rights”, n 110 above. The approach of the current Australian Government to Article 3 and the right of indigenous self-determination remains to be clarified. Earlier views of the Department of Foreign Affairs and Trade were described in a working paper entitled Self-Determination: The Australian Position, submitted to the first session of the CHRWG in 1995:

In Australia’s view, self-determination is not a static concept, but rather an evolving right which includes equal rights, the continuing right of peoples to decide how they should be governed, the right of people as individuals to participate fully in the political process (particularly by way of periodic free and fair elections) and the right to distinct peoples within a state to make decisions and administer their own affairs (relevant to both indigenous peoples and minorities.

UN Doc E/CN.4/1995/WG.15/2/Add.2, para 8. At the third session of the CHRWG in 1997 Australia declined to participate in the debate on Article 3 of the Draft Declaration.

[112] A Meeting of Experts to review the experience of countries in the operation of schemes of internal self-government for indigenous peoples, held in Nuuk, Greenland, 24–28 September 1991, concluded that:

5. Indigenous territory and the resources it contains are essential to the physical, cultural and spiritual existence of indigenous peoples and to the construction and effective exercise of indigenous autonomy and self-government. This territorial and resource base must be guaranteed to these peoples for their subsistence and the ongoing development of indigenous societies and cultures.

UN Doc E/CN.4/1992/42. An Expert Seminar on Practical Experiences Regarding Indigenous Land Rights and Claims, convened in March 1996 by the Government of Canada at the request of the UN Commission on Human Rights, concluded that: “The promotion and protection of rights over land and resources of indigenous peoples are vital for their development and cultural survival”. “The Whitehorse Conclusions and Recommendations on Indigenous Land Rights and Claims”, Report of the Expert Seminar on Practical Experience Regarding Indigenous Land Rights and Claims UN Doc E/CN.4/Sub 2/AC.4/1996/6, para 86(3). The Whitehorse Seminar called on governments to “renounce discriminatory legal doctrines and policies which deny human rights or limit indigenous land and resource rights”; in particular, “doctrines and policies imposing an extinguishment of indigenous land rights, title or ownership”.

[113] In this connection Principle 22 of the 1992 Rio Declaration on Environment and Development states:

Indigenous people, their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

The World Bank’s 1991 Operational Directive No 4.20 provides: “The key step in project design is the preparation of a culturally appropriate development plan based on full consideration of the options preferred by the indigenous people affected by the project”. See UN Doc E/CN.4/Sub.2/AC.4/1992/2.

[114] See generally Pritchard, n 111 above, pp 60–61.

[115] International Labour Office, A Guide to ILO Convention No 169 on Indigenous and Tribal Peoples (1995) p v–vi.

[116] Anaya J, “Indigenous Rights Norms in Customary International Law” (1992) 8 Arizona Journal of International and Comparative Law 1 at 5; also Anaya J, Indigenous Peoples in International Law (1996) p 57–8.

[117] Williams, n 9 above, at 677.

[118] Ibid, at 681.

[119] From the author’s files.

[120] Anaya J, Indigenous Peoples, n 116 above, p 49.

[121] Ibid, p 55.

[122] Ibid, p 55, 57.

[123] Kirby M, “Implications of the Internationalisation of Human Rights Law” in Alston P ed, Towards an Australian Bill of Rights (1994) p 267 at 268.

[124] See n 37 above.

[125] See generally Charlesworth H, “Australia’s Split Personality: Implementation of Human Rights Treaty Obligations in Australia” in Alston P and Chiam M eds, Treaty-Making and Australia: Globalisation Versus Sovereignty (1995) p 129.

[126] See n 2 above.

[127] The legitimate influence principle was applied by the High Court in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 and confirmed in Environment Protection Authority v Caltex [1993] HCA 74; (1993) 178 CLR 477 and Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. In Teoh’s case Mason CJ and Deane J expressed the view that, taking the transformation principle into account, a cautious approach should be taken in using international instruments to develop the common law; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288. In exercising their discretion to use international instruments as interpretive aids, judges should consider the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of domestic law; ibid, at 288. On decisions of the New South Wales Court of Appeal which have referred to international human rights principles, see Kirby M, “The Impact of Human Rights Norms: A Law Undergoing Evolution” (1995) 25 Western Australian Law Review 30; Kirby M, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes” [1993] UNSWLawJl 15; (1993) 16(2) University of New South Wales Law Journal 363.

[128] Aboriginal and Torres Strait Islander Commission, Recognition, Rights and Reform: Report to Government on Native Title Social Justice Measures (1995) Recommendation 11 at 154.

[129] Ibid.

[130] Proceedings of the Reconciliation Convention, Book 3 “Human Rights and Indigenous Australians”, 26–29 May (1997) p 109.

[131] Lester A QC, “The Impact of Europe on the British Constitution(1992) 3 Public Law Review 228 at 232.

[132] Mason A, “The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown” (1997) 46 International and Comparative Law Quarterly 812 at 829.

[133] In A v Australia the author ‘A’ lodged a communication primarily concerning the length of detention pending the resolution of his claim for refugee status (Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993). ‘A’ had been held in an immigration detention centre at Port Hedland for more than four years. The Human Rights Committee found that there had been breaches of Article 9(1) and (4), and Article 2(3) of the ICCPR. The Committee considered that ‘A’ had been subject to arbitrary detention, that the available grounds of judicial review of his detention were too limited to enable compliance with the ICCPR and that there was a failure to provide an effective remedy for the arbitrary detention. In the Committee’s view, an effective remedy would have included adequate compensation for the length of detention. The Committee’s views were issued on 30 April 1997. The Australian Government was requested to provide information about measures taken to give effect to the views within three months. On 17 December 1997 the Attorney-General and Minister for Immigration and Ethnic Affairs stated that after giving serious and careful thought to the views expressed by the Committee, the Government does not accept that the detention of Mr A was in contravention of the Covenant, nor that provision for review of the lawfulness of that detention by Australian courts was inadequate. Consequently, the Government does not accept the view of the Committee that compensation should be paid to Mr A.

Joint News Release, Attorney-General and Minister for Immigration and Multicultural Affairs, 17 December 1997, at 2.

[134] Australia’s reports to the Human Rights Committee under Article 40 of the ICCPR have been particularly tardy. A third periodic report was due in 1991, and a fourth in 1996. As a result of the lateness of these reports, the Human Rights Committee named Australia as one of a handful of States parties with two or more overdue reports in its 1997 report to the UN General Assembly. The Committee stated that it “considered itself duty bound to express its serious concern about the fact that so many States parties [we]re in default of their obligations under the Covenant. This state of affairs seriously impedes the Committee’s ability to monitor the implementation of the Covenant”. It had therefore “decided to list in the core of its report to the General Assembly ... the States parties that have more than one report overdue. The Committee wishe[d] to reiterate that these States are in serious default of their obligations under Article 40 of the Covenant”. Report of the Human Rights Committee, UN Doc A/52/40 (1997), volume 1. The third and fourth reports were finally submitted on 28 August 1998. Australia’s second report under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was due in 1994. Australia’s tenth and eleventh interim reports under Article 9 of CERD were due in 1994 and 1996. The Committee on the Elimination of Discrimination Against Women (CEDAW) agreed in 1997 to allow Australia to present a combined fourth and fifth report on implementation of the CEDAW in 2000. A fourth report to CEDAW was due in 1996.

[135] Banton M, International Action Against Racial Discrimination (1996) p 284. The Committee on the Elimination of Racial Discrimination considered Australia’s ninth periodic report in 1995: Report of the Committee on the Elimination of Racial Discrimination, UN Doc A/49/18 (1995). It expressed its appreciation for the “opportunity to engage in a frank, serious and extremely constructive dialogue with the delegation lead by the responsible Minister. He was accompanied by the Social Justice Commissioner, himself from Australia’s indigenous population and the holder of an independent post”. (Ibid, para 537). The Committee praised the Australian Government for creating the independent post of Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission. It commended the judiciary’s efforts at implementation of the provisions of CERD, referring to the High Court’s comments in Mabo (No 2). The Government was commended for its response to the High Court’s decision, which included the enactment of the NTA and the establishment of the Aboriginal and Torres Strait Islander Land Fund (Ibid, para 542).

At the same time, a number of concerns were expressed about the progress of Australia’s implementation of the Convention. These included the inability of the Federal Government to control implementation of provisions of international instruments because of exclusive State jurisdiction; the fact that the rate of Aboriginal deaths in custody remains at the level which prompted the establishment of the 1989 Royal Commission into Aboriginal Deaths in Custody (RCADIC); the fact that the requirements for proof of native title will result in a very small percentage of the Aboriginal population being able to benefit from the NTA; the fact that Aboriginal people continue to suffer disadvantage in such areas as education, employment, housing and health services and that Aboriginal people have a low level of participation in public affairs; and the inadequate protection of members of other minorities, particularly refugees and asylum seekers, against discrimination (Ibid, paras 542–546).

The Committee suggested the following changes to domestic legal structure and policy: pursuit of an “energetic policy” of recognising Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past; full implementation of the recommendations of the RCADIC; strengthening measures to remedy discrimination suffered by members of non-English speaking minorities and Aborigines in the fields of the administration of justice, education, employment, housing and health-care services and to promote participation in public affairs (Ibid, paras 547–551). The decreasing profile of Australia’s more recent participation in international human rights fora has been the subject of comment. In 1997 the CEDAW called on Australia to “resume its active and visible participation in international forums on women’s equality” (UN Doc CEDAW/C/1997/II/L.1/Add.8, paras 27–32).

[136] (1997), para 24.

[137] Anaya, Indigenous Peoples, n 116 above, p 184.


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