Transcript of the 1393rd, 1394th and 1395th Meetings held during the Fifty-Sixth Session of the Committee on the Elimination of Racial Discrimination during its consideration of Australia's Tenth, Eleventh and Twelfth Periodic Reports and its continuing consideration of the matters considered by the Committee at its 54th and 55th Sessions in 1999.

(Chairman)
I declare open the 1395th meeting of the Committee on the Elimination of Racial Discrimination. I invite the attention of my colleagues to the order of the day, Rev.1. In Rev.1, there is an enumeration of the work we have to start and hopefully complete - I doubt it very much - but in any case it is on our agenda to adopt the concluding observations for France, Zimbabwe, Spain, Tonga, Malta, Denmark, and then, after that, we have short notice agenda items. This is what you call the impossible agenda. However, despite that, I myself proposed before adjourning that inasmuch as we took thirty minutes from the time allotted for the consideration of the Australian report because of the celebration of the anniversary yesterday, that we should give them these thirty minutes we took away from them yesterday. Thirty minutes, and by that really I mean thirty minutes. We agreed in the morning with the distinguished Minister from Australia and his delegation that we shall give them again the floor this afternoon for, let us say about ten minutes, or rather not exceeding ten minutes, so that later if one or another of my colleague very briefly wishes to make a brief comment will do so. We shall, I shall call on the country rapporteur to conclude her remarks and at 3:30 the consideration of the report of Australia will be over, at least the present phase of the consideration of the Australia report, because thereafter we have to take the concluding observations on Australia which is not a small order.

With that, with these clarifications - and I really implore everybody to stick to the timetable agreed upon, this is the extra time which is with lots of effort that we took away from the other business. So I call on the delegation of Australia to use, if they wish, the ten minutes we talked about. The delegation of Australia has the floor, if you wish. … The delegation of Australia at this point does not wish to take the floor, for brief remarks, any one of my colleagues? And I shall give them to Mrs McDougall.

(Australia)
And then we shall speak after.

(Chairman)
After the country rapporteur, usually not. …

(Australia)
We'll speak now instead if you like.

(Chairman)
You prefer to speak now?

(Australia)
After the rapporteur…

(Chairman)
Not after the rapporteur… the rapporteur will conclude, she started already and I interrupted it. … Yes, and then the country rapporteur will react to that, and then we shall never finish. If we go that way I'll have to give her the floor to finish. Now, the delegation of Australia wishes to take the floor at this time?

(Ms Horner)
Thank you.

(Chairman)
By all means, please. You have the floor madam.

(Philippa Horner)
Thank you very much, Mr Chairman. A number of comments were made and questions were asked about native title in this morning's session. During the luncheon period I've done some written responses to those questions of which there are about half a dozen, and I'll make sure that, with your agreement, distributed to members this afternoon, as the Minister indicated.

I just want to say something about a couple of the matters that the country rapporteur was mentioning before we broke for lunch. And it was in response to some comments I think that had been made, circulated to members of the Committee this morning, in response to a question that she had asked yesterday about Australia's understanding of its obligations under the Convention. And at that time the question was asked whether Australia regards the Convention as requiring formal or substantive equality and what definitions does Australia use. And Ms McDougall I think made the point in the material we heard just before lunchtime, that Australia had confirmed that substantive equality is required. I just wanted to make a little comment about that, and the issue was raised by another member of the Committee this morning when she asked, sorry the South African expert, when she asked about whether Australia regarded formal equality as sufficient for the purposes of the Convention. I think the Australian Government does not argue that the Convention only requires formal equality, and this point was certainly made to the Committee members when the Australian delegation appeared in March last year. I suppose that the way the Australian Government would see its obligations under the Convention is that the equality required by the Convention can be achieved in a number of ways - that equality is equality between racial groups - and those ways include by a formal equality and special measures where appropriate, and by substantive equality which recognises differential treatment, that differential treatment is not necessarily discriminatory. Now, the point that's been made by the delegation is that the provisions in the Amended Native Title Act reflect a mix of formal, special measures and substantive equality. And clearly the question of what measures are taken to provide appropriately different treatment of things that are different, a substantive equality, will be a matter of judgement in the particular circumstances of the case. Now in my presentation yesterday, I mentioned that there were many many provisions in the Amended Native Title Act that deal with the special nature of native title. Now, those measures, of which I think there are at least fifty, are listed in a document that members were given a copy of this morning. So I would commend that reading to you because I think it makes the point very eloquently, that the Amended Native Title Act contains many provisions which go to the recognition and maintenance of what makes native title a property interest that differs from other peoples' property interests. I don't think the government would say that the Amended Native Title Act is about formal equality only. It clearly is not, though it is the case that during the debate in the Parliament on the amendments to the Native Title Act, there was a lot of discussion about formal equality. But as the Act passed the Parliament - which is of course what we're interested in - as it was finally enacted, it does not base its compliance with the Convention on formal equality. And just one example I'll use, the pastoralists in Australia do not have the kind of rights that native title holders get under the Amended Native Title Act. Pastoralists do not have a right to comment on or to have consultation on or to have negotiation about the grant of mining leases on their land. And I should add that the rights that native title holders get are in most cases in relation to mining and other kinds of activity on their land, different also from freeholders, different from every other kind of property holder in Australia.

Another comment that was made was about the issue about whether the common law is discriminatory, and therefore whether the reliance that it is alleged Australia places on compliance with the common law is justifiable. Now, the Act and the whole basis on which the native title legislation was drafted in 1993, the original Act which this Committee in its consideration in 1994, I think, found not to be in breach of the Convention, was based upon a very important principle. And that was that when native title was first recognised by the courts in Australia in 1992, that we had to accept that Australia had already had 200 years of settlement since the last decade of the 18^th century, and that there had been 200 years of white settlement in Australia that could at that stage not be undone. We were stuck with it. Everyone was stuck with it. It was as if we rule a line and say, 'from now on we take settlement in Australia as given. We accept the fact that the Crown in those previous 200 years, meaning the Crown meaning the governments of Australia, have granted rights to non-indigenous Australians, the grant of which may have resulted or would have resulted in indigenous people being dispossessed.'

Now, it was agreed in 1993 and this is reflected in the 1993 Act, that in relation to those historical acts of the Crown, it would be accepted that they occurred, and in some cases compensation was paid if those grants were made invalidly. However, what the 1993 Act did was to say that in relation to the future dealing of native title land by governments, the common law would not be followed. The Native Title Act both in 1993 and 1998, as it is amended, provides greater protections for native title than the common law allows. And this was amply demonstrated in the case that came down ten days ago in Australia, which found that, under the common law, native title is extinguished by the grant of a mining lease. Now that's what the common law said. What the Native Title Act says, the Amended Native Title Act says, no, a mining grant cannot extinguish native title. What it says is that native title cannot be exercised for the duration of the lease, but after that native title springs back and it's as if there was no interference with it during the period of the lease. So whether it's 10 years or 25 years, at the end of that lease, native title is still there. That is one of the ways in which the amended Act gives greater protection to the native title interests than the original Act allowed, sorry than the common law allowed.

I'll just mention one other aspect in which the Native Title Act and the amendments made in 1998 benefit indigenous rights. Under the 1993 Act there was no basis on which that historical extinguishment of native title could be undone. Under the 1998 amendments there were two very important provisions which were put in. The effect of them was to say, that in relation to Aboriginal land, in which Aboriginals are currently occupying, or in relation to vacant Crown land which is occupied by Aboriginal people, any extinguishing act under the common law can be ignored. So whether it was the grant of a freehold in the past, or the grant of a leasehold which under the common law would have extinguished native title, the courts can ignore that extinguishing feature and treat native title as if it still exists. Now, the importance of that provision has also been demonstrated in the past six months in two cases. One in Alice Springs, where the judge found that native title which would have been extinguished under the common law has now been revived under that statutory provision which was put in 1998, and the recent case in Western Australia where similarly a judge found in the Kimberley region areas which would have been extinguished by previous government Crown acts, native title has revived. Now this restitution of native title rights is something that was not possible under the common law. It was not possible under the 1993 Act, but is possible under the 1998 amendments.

I'll just make one more comment on that. In my presentation yesterday I made mention of the fact that discussions had been continuing between ministers and certainly officials with indigenous representatives, about how the Act is operating. Those discussions are continuing. I think Ms McDougall mentioned yesterday, if I can refer to what I understood her to say, she said that at this stage it's too early to determine the impact of the Amended Act. Now, we would agree fully with that. It's too early to judge the impact of the Amended Act. What I would say is, as I said in my presentation yesterday, so far we have no evidence that the confirmation provisions have extinguished any native title, which I know was a concern of the Committee last year and continues to be a concern, as I say we have no evidence of that. And we also have no evidence that the validation provisions, which I know were a concern to the Committee last year, have extinguished native title permanently. So that's the position at the moment with the amendments to the Act. As I mentioned yesterday, the registration test is operating such that over 90% of the applications for native title currently being made are satisfying the registration test. And it is also the case that many applications for native title are being consolidated at the request of the applicants so that the courts can deal with them more efficiently. So, I think we're at a situation where it's important to see how the amendments operate and that's what the government intends to do and to keep monitoring the situation. Thank you Mr Chairman.

(Chairman)
Thank you Ma'am. Shall I give the floor to the country rapporteur to conclude her remarks or any one of the colleagues insist on having the floor? Mr de Gouttes, for a brief statement. Mr de Gouttes.

(Mr de Gouttes)
[The following is an unofficial translation from French]

Mr Chairman, I hope that I won't be the only one, but I had two very brief complementary questions to ask the delegation, two questions that are very brief. First question: most of the interveners highlighted the insufficient implementation of Article 4 of the Convention. Why? Because, indeed, we have understood that the government had attempted to introduce criminal measures for threats, violence, destruction, for reasons of race. We have also understood that it was the Parliament that was opposed to the introduction of these criminal measures. What is certain is that now only civil measures exist. So I would like to ask the delegation, if it plans to tell the Parliament about this incompatibility, of the application of Article 4 of the Convention, with regard rather to Article 4 of the Convention, with the current complete lack of criminal measures for violence and threats of a racist character.

Second question, even more brief, Mr Chairman, with regard to the amendments made in 1998 to the Native Title Act. We have well understood that the government could not suspend the application of a law, because it is the work of the Parliament, but in its written responses in 1999, the government said that the constitutional value of this law could be contested in Australian courts, on which they would eventually have to reach a decision. My question is to know whether any such challenges to the constitutionality of the law have been introduced before the tribunals. Thank you Mr Chairman.

(Chairman)
Thank you. Mr Yutzis, for a brief remark. Mr Yutzis has the floor

(Mr Yutzis)
[Spanish only, no translation available]

(Chairman)
Thank you. Mr Fall.

(Mr Fall)
[The following is an unofficial translation from French]

Thank you, Mr Chairman. Mr Chairman, I would like to come back to a point which seems to me to be very important, which has already been brought up by several of my colleagues, but which I would like insist upon because I think it is an essential point to our discussion. This is the complexity of the federalist phenomenon, as it was presented this morning by the Minister in response to the various questions that were raised. Certainly, we have all kinds of federations in the world. Each federation has its own specificity, this is true. We have well understood the broad and detailed explanations that he has given us. But we remain unchanged in our position on this question because the question of discrimination, in our opinion, should be one of the greatest preoccupations of the federal authority. And looking at what is happening in Australia, in seeing the composition, and especially the latitude given to the different components of the federation for treating such an important problem, we are a bit concerned. And I would simply like to say that, as everyone knows, the problem of discrimination is part of, and has always been a part of, the concern of the United Nations, of the international community. And it's for this very reason that, from the very beginning, the United Nations itself has always shown its commitment to the dignity and equality of all human beings. I think that for all the states of the world today, this is a cardinal principle that is of interest to all states. And so the federal state should take this into account and make sure that, in the legislation, that there is an implementation particularly with regard to Article 4, so that this can be reflected in the laws of this country. I thank you, Mr Chairman.

(Chairman)
Thank you. … Mrs McDougall.

(Ms McDougall)
Mr Chairman, I'd prefer to wait until the delegation has given its responses, if they ...

(Chairman)
… So the delegation would prefer to let the Minister give the responses, if he arrives in time. So in the meantime I give you the floor to conclude the remarks you started this morning, and I apologise for interrupting you at that time. So, you have the floor Madam.

(Ms McDougall)
Thank you Mr Chairman. Well I'm not, certainly don't want to go over anything I've said this morning, but I would make just a couple of additional points. First of all, I think it's not quite right, if I heard Ms Horner's statement just a few minutes ago. When this Committee first looked at the Native Title Act - and I admit that I was not on the Committee then - it was not my impression from reading the record that the Committee based its decision on an acceptance of 200 years of white settlement as a sort of fait accompli that was then the basis for moving forward. I don't think so. My sense was that the Committee based its decision to accept the discriminatory aspects of the Native Title Act because there was sufficient evidence that it was the product of genuine negotiations with the indigenous population, and it was on that basis, on the basis that it was a product of genuine negotiations. Not that it wasn't discriminatory, and not from a sort of arbitrary decision by the Committee that 200 years must be accepted. I come back to this because it think that this question of negotiating with the indigenous population is central and it perhaps is not seen as much so by the delegation.

I note that you have challenged our position that in situations regarding land rights of indigenous peoples, if there is a deviation from the rights established under the Convention, it must be by informed consent of the indigenous people. This is what's said in our General Recommendation. I must admit to not being able to see that as such an extraordinary standard. You know, if someone wants to purchase or divest me of land that I own, they must have my informed consent. You say of course that one cannot right all of the wrongs of the past, and I'm sure there is quite a bit of merit in that position, but I don't think that we can move forward without acknowledgement of the past. And this is a situation where I think of course we have to be mindful of the progress that's been made in that the indigenous community now has clear title of 15% of the land mass of Australia, and I understand from the comments that were made yesterday how vast that 15% is. But I keep being reminded that 85% is being held under some other title, and that perhaps 200 years ago the situation was quite different. So when you talk about restitution to me, I don't, I think it's giving back someone something that they fully owned originally. And that's got to be a very important aspect in the negotiations leading to reconciliation.

And that would bring me to, I guess, the last point I would make, which sort of responds to the Minister's comment that no document is going to achieve reconciliation, and I fully, fully agree with that. And by asking … reconciliation process, I was not indeed asking for there to be a document that could be produced. Rather, for me, the real test is whether or not all of the parties agree that reconciliation has been achieved, and achieved on the basis of genuine negotiations between the, essentially in this case, two parties. But I think that one would have no doubt as to when reconciliation is achieved and it's certainly not on the basis of a document, it is a process. But it's a process that will never be successful unless the aggrieved parties feel that they have negotiated an outcome that is satisfactory to them. With that, Mr Chairman, I will close.

(Chairman)
I thank the country rapporteur for her concluding remarks and I turn to the delegation of Australia. Well … In the meantime I can give you the floor to answer to the technical questions put and of course the moment the Minister arrives it will be my pleasure to give him the floor. You have the floor in the meantime sir. Or madam.

(Ms Horner)
While the Minister is sitting down I will answer one of the questions asked by Mr de Gouttes this afternoon. It was similar to a question that was asked this morning. My understanding of the question was whether any challenge to the constitutional validity of the Amended Native Title Act had been made. That was my understanding of the question. The amendments as you know were enacted in July 1998 and they came into operation in September 1998. In that period of over 18 months there has been no challenge to the constitutional validity of the legislation, and I might mention that this contrasts with the 1993 Native Title Act, the validity of which was challenged almost immediately it came into operation in 1994. So we're still awaiting any constitutional challenge. Thank you Mr Chairman.

(Chairman)
Thank you madam. Please.

(Ms Horner)
Constitutional challenge, I mean that by in Australia any person who has an interest affected by legislation who has sufficient standing in court can challenge the legislation on …. Well the Aboriginal people could challenge the constitutional validity certainly, and the 1993 Act when it was challenged in the High Court in Australia, the three parties were the Western Australian government, the Commonwealth Government, and some indigenous Western Australians - they were the people who were involved in the constitutional challenge to the 1993 Act so certainly they can challenge it. Thank you Mr Chairman.

(Chairman)
Thank you ma'am, I take particular pleasure in calling on the distinguished Australian Minister to make the concluding remarks that he cares to make. Welcome him back in our deliberations and in our midst.

(Minister)
Well thank you very much Mr Chairman and distinguished representatives. Can I, experts &emdash; I'm learning &emdash; can I say firstly thank you for allowing me to share with you in these very important deliberations. For me it's been a very new experience, I've appeared before some other bodies from time to time, but I have appreciated your informality, your professionalism, and have appreciated also the informal dialogue we've been able to have from time to time. And some of you have given me some thoughts that have been in my mind and are worth pursuing, and I hope that that will be fruitful as well. I came to this meeting because the Australian Government wanted to demonstrate to you the importance we attach to this instrument, our adherence to it. We believe, notwithstanding what can be different ways of implementing and viewing the obligations that we have been dealing with them in a tangible way, in a meaningful way. And we are obviously very keen to maintain dialogue. Your Committee has sought those opportunities and we want to facilitate them for you. You've sought information, we want to provide that information and we will continue to cooperate with you. Our next report is due I understand later this year, and we will be working on that. I'm conscious of some of the points that have been made about information overload but certainly we will take up any further matters that you see as being important in the context of that continuing reporting. Can I apologise for my own delay in getting back here. I had a long standing appointment with Mrs Robinson to look at treaty reform issues and they were very useful discussions but I thank you for your courtesy in allowing us to come back after lunch and I hope that, well I do hope that I will have an opportunity to come back and renew some of the friendships, because you know if we do reasonably well out of today my government might let me off the leash again. Thank you very much.

(Chairman)
Mr Minister, thank you very much indeed for your participation in our work, for the introduction of your country's report, for your responses to the comments made and the questions put by my colleagues during this debate. I believe it was a very useful and frank exchange of views and we look forward to the continuation of this exchange and we indeed, as you said, we look forward to the next periodic report of your country on the basis of our Convention. Mr Minister, what you heard so far were, just to clarify for you the procedures of this Committee, were questions put by individual members of the Committee in their personal capacity, as it were. The position of the Committee will be reflected in the Concluding Observations which we are going to adopt in the not too distant future. And these Concluding Observations we shall forward to you through your Ambassador here in Geneva, and I am confident that they will be taken into account by your government and also during the preparation of the next periodic report of Australia to this Committee. With that I would like to conclude the present phase of the consideration of the report of your country by our Committee. I would like on behalf of all members of the Committee to thank you and the members of your delegation for being here with us and also for the frank and useful exchange of views we had. I wish you all of the very best, Mr Minister, it was a pleasure meeting you and talking to you in this Committee.

(Minister)
Well, thank you very much and thank you very much Committee and thank you very much for that clarification as well. Much appreciated.

(Chairman)
Thank you sir.

[end of Committee's consideration of Australia]

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