Decision of the Committee on the
Elimination
of All Forms of Racial
Discrimination
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54TH SESSION
1-19 March 1999
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CERD/C/54/Misc.40/Rev.2
18 March 1999
Unedited version
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AUSTRALIA
- Acting under its early warning procedures, the
Committee adopted Decision 1(53) on Australia on 11
August 1998 (A/53/18, para. 22), requesting information
from the State Party regarding three areas of concern:
proposed changes to the 1993 Native Title Act; changes of
policy as to Aboriginal land rights; and changes in the
position or function of the Aboriginal and Torres Strait
Islander Social Justice Commissioner. The Committee
welcomes the full and thorough reply of the Commonwealth
Government of Australia to this request for information
(CERD/C/347). The Committee also appreciates the dialogue
with the delegation from the State party at the
Committee's 1323rd and 1324th meetings to respond to
additional questions posed by the Committee in regard to
the State Party's submission.
- The Committee received similarly detailed and useful
comments from the Acting Aboriginal and Torres and Strait
Islander Social Justice Commissioner of the Australian
Human Rights and Equal Opportunity Commission; the
Aboriginal and Torres Strait Islander Commission; members
of the Parliament and Senate of Australia.
- The Committee recognizes that within the broad range
of discriminatory practices that have long been directed
against Australia's Aboriginal and Torres Strait Islander
peoples, the effects of Australia's racially
discriminatory land practices have endured as an acute
impairment of the rights of Australia's indigenous
communities.
- The Committee recognizes further that the land rights
of indigenous peoples are unique and encompass a
traditional and cultural identification of the indigenous
peoples with their land that has been generally
recognized.
- In its last Concluding Observations on the previous
report of Australia, the Committee welcomed the attention
paid by the Australian judiciary to the implementation of
the Convention. (A/49/18, para. 540) The Committee also
welcomed the decision of the High Court of Australia in
the case of Mabo v. Queensland, noting that in
recognizing the survival of indigenous title to land
where such title had not otherwise been validly
extinguished, the High Court case constituted a
significant development in the recognition of Indigenous
rights under the Convention. The Committee welcomed,
further, the Native Title Act of 1993, which provided a
framework for the continued recognition of indigenous
land rights following the precedent established in the
Mabo case.
- The Committee, having considered a series of new
amendments to the Native Title Act, as adopted in 1998,
expresses concern over the compatibility of the Native
Title Act, as currently amended, with the State Party's
international obligations under the Convention. While the
original Native Title Act recognizes and seeks to protect
indigenous title, provisions that extinguish or impair
the exercise of indigenous title rights and interests
pervade the amended Act. While the original 1993 Native
Title Act was delicately balanced between the rights of
indigenous and non-indigenous title holders, the amended
Act appears to create legal certainty for governments and
third parties at the expense of indigenous title.
- The Committee notes, in particular, four specific
provisions that discriminate against indigenous
title-holders under the newly amended Act. These include:
the Acts's "validation" provisions; the "confirmation of
extinguishment" provisions; the primary production
upgrade provisions; and restrictions concerning the right
of indigenous title holders to negotiate non-indigenous
land uses.
- These provisions raise concerns that the amended Act
appears to wind back the protections of indigenous title
offered in the Mabo decision of the High Court of
Australia and the 1993 Native Title Act. As such, the
amended Act cannot be considered to be a special measure
within the meaning of Articles 1(4) and 2(2) of the
Convention and raises concerns about the State Party's
compliance with Articles 2 and 5 of the Convention.
- The lack of effective participation by indigenous
communities in the formulation of the amendments also
raises concerns with respect to the State Party's
compliance with its obligations under Article 5(c) of the
Convention. Calling upon States Parties to "recognise and
protect the rights of indigenous peoples to own, develop,
control and use their common lands, territories and
resources," the Committee , in its General Recommendation
XXIII, stressed the importance of ensuring "that members
of indigenous peoples have equal rights in respect of
effective participation in public life, and that no
decisions directly relating to their rights and interests
are taken without their informed consent."
- While welcoming the State Party's recognition of the
important role that has been played by the Human Rights
and Equal Opportunity Commission, the Committee also
notes with concern the State Party's proposed changes to
the overall structure of the Commission; abolishing the
position of the Aboriginal and Torres Strait Islander
Social Justice Commissioner and assigning those functions
to a generalist Deputy President. The Committee strongly
encourages the State Party to consider all possible
effects of such a restructuring, including whether the
new Deputy President would have sufficient opportunity to
address in an adequate manner the full range of issues
regarding indigenous peoples warranting attention.
Consideration should be given to the additional benefits
of an appropriately qualified specialist position to
address these matters, given the continuing political,
economic and social marginalization of the indigenous
community of Australia.
- The Committee calls on the State Party to address
these concerns as a matter of utmost urgency. Most
importantly, in conformity with the Committee's General
Recommendation XXIII concerning Indigenous Peoples, the
Committee urges the State Party to suspend implementation
of the 1998 amendments and re-open discussions with the
representatives of the Aboriginal and Torres Strait
Islander peoples with a view to finding solutions
acceptable to the indigenous peoples and which would
comply with Australia's obligations under the Convention.
- In light of the urgency and fundamental importance of
these matters, and taking into account the willingness
expressed by the State Party to continue the dialogue
with the Committee over these provisions, the Committee
decides to keep this matter on its agenda under its early
warning and urgent action procedures to be reviewed again
at its fifty-fifth session.
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