Chairman: 1323rd meeting of the Committee on the Elimination of Racial Discrimination.

This afternoon we'll start consideration of the report of Australia. As you know, we are examining this report under our prevention procedure and, as you are well aware, the Australian government did introduce a report, a special report for this discussion. This report is contained in document CERD/C/347.

May I remind members of the Committee also our country rapporteur is Ms McDougall who will be taking the floor after the introduction of the report. May I welcome the delegation of Australia and ask them to join us here. The Chairman of the delegation of Australia is the charge'd'affaires of Australia here in Geneva. I welcome you and I welcome the members of your delegation. I will ask you first to introduce the members of your delegation to the Committee and then maybe introduce the document it seeks to refer to.

Mr Goledzinowski: Mr Chairman, I thank you. My name is Andrew Goledzinowski and I am presently charge'd`affaires at the Australian Permanent Mission to the United Nations in Geneva. It is a pleasure to introduce my delegation members, Mr Robert Orr, who sits on my right, is Deputy General Counsel at the Attorney 'General's Department in Australia, and Ms Robin Bickett is the Councillor (Counsellor?) of the Immigration section at the Australian Permanent Mission.

Mr Chairman, as 'you've told us, on the 13th of January of this year, the Australian government submitted documents to the Committee in compliance with the request of the Committee for further information concerning changes to the 1993 Native Title Act, changes to Aboriginal Land Rights policy, and concerning the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner.

These documents are presently before you as document C/347. More recently Mr Chairman, we had provided, through the Secretary to the Committee, a copy of a media release relevant to this hearing. It consists of an announcement by the Attorney General Mr Daryl Williams, concerning the appointment of Dr William Jonas as the Aboriginal and Torres Strait Islander Social Justice Commissioner with the Human Rights and Equal Opportunity Commission. He has been appointed for a period of five years, commencing on the 6th of April this year. I would also like to take the opportunity, Mr Chairman, to advise the Committee that 'Australia's next periodic report to the Committee which, as requested, will combine our 10th and 11th periodic reports will shortly be submitted. I'm advised that non-governmental organisations in Australia have already had an opportunity to comment on the draft, and final clearances are now being obtained. Mr Chairman, I understand it will be available in a matter of weeks, not months.

It might also be of interest to your Committee, Mr Chairman, to know that an invitation to Australia was issued last year to the special rapporteur on contemporary forms of racism, racial intolerance, xenophobia, and related intolerance, Professor Gle'le' Ahanhanzo. In conjunction with the government, this visit was originally planned for May 1998 however, due to ill health, the special rapporteur requested that it be deferred. He subsequently identified a date later in the year 1998 which happened to coincide with an Australian federal election. He agreed that this would not be a convenient time to reschedule the visit. Since then, the special rapporteur has indicated that given certain positive developments in Australia - which he also reflected upon in his report to the United Nations General Assembly this year - a visit to Australia was now a lower priority for him. And, he has advised us that a visit this year is unlikely.

Mr Chairman, from the 'government's point of view however, the invitation to the special rapporteur remains open. That is all I wish to say by way of introduction except to say that this delegation is here and available to assist the Committee in any way it can - with the matters contained in decision 1(53). In this regard, the Attorney 'General's Department in Australia has put in place certain arrangements in respect of other legal proceedings in Australia which will allow Mr Orr to remain in Geneva until Monday should that be required. With your permission Mr Chairman, I would now like to invite Mr Orr to provide the Committee with an overview of the 'government's submission, and some background to the matters at issue. Thank you.

Mr Orr: Thank you Mr Chairman and Mr Goledzinowski. And, thank you for this opportunity to appear before the Committee. 'It's a privilege for Australia to do so and for myself to do so. The Committee has raised three issues. Firstly, the changes to the Native Title Act of Australia. Those changes commenced operation on the 30th of September 1998. Secondly, changes to Aboriginal Land Rights. There are currently no relevant changes to the Aboriginal Land Rights Northern Territory Act 1976 although that Act is under review. The third issue is the function of the Aboriginal and Torres Strait Islander Social Justice Commissioner. Again, there are no changes to that position at the moment - though the government is proposing to make changes to that position. Australia has provided a written response to the Committee which the Chairman and Mr GoledzinowskiGoledzinowski have referred to. And 'we're here to answer any questions which the Committee may have with regard to that submission.

Firstly, I thought it appropriate however that I summarise the submission. The summary will focus, in particular, on the Native Title issues which I understand are the most significant in relation to the 'Committee's considerations. I intend to provide some background to Native Title issues in Australia, to identify some key concerns, and then to say a few brief comments about the two issues which the Committee has raised.

Native Title in Australia is a difficult and complex issue and will require long term consideration by that country. In order to understand the current position with regard to Native Title, I think 'it's important to have regard to four main events.

Firstly, the Mabo Case itself and the High Court judgment of 1992. Secondly, the Native Title Act which the Commonwealth parliament passed in response to the Mabo Case in 1993. Thirdly, the Wik decision of the High Court in 1996, and

Fourthly, the chief concern to this Committee - the amendments to the Native Title Act which as I said were passed by the Commonwealth parliament in 1998. 'I'd like to briefly deal with these four events. Clearly in the time available, I 'won't be able to do full justice to the many issues involved but I think it's important to have regard to this background.

So firstly, the Mabo Case. In 1992, the High Court of Australia handed down its Mabo decision. That decision for the first time held that the Common Law of Australia recognised the rights of Australia's Indigenous Peoples - these we call Native Title rights. From the time of British settlement in 1788, until the decision in 1992, the Common Law had held that Australia's Indigenous People had no such Land Rights. Australia was, it was said, from the time of settlement, Terra Nullius, that is, land belonging to no one. The Mabo decision overturned that great injustice and recognised the Land Rights of Australia's Indigenous People. It did so, relying to a large extent on international legal thinking, including thinking on the issue of racial discrimination.

But whilst the court held that Native Title rights had survived the acquisition of sovereignty by the British, the court recognised that Native Title had been extinguished by the step-by-step development of the colony. It had been extinguished by the construction of public works, such as roads and schools, and it had been extinguished by grants to settlers, such as freehold and leasehold grants. As judges in the Mabo case noted, the dispossession of Australia's Indigenous People and the extinguishment of their rights had underwritten the development of the nation.

Secondly, I'd like to talk about the Native Title Act which was passed by the Commonwealth parliament in 1993. The Mabo decision was controversial in Australia, as was the Native Title Act. That Act sought to implement the law of Native Title into Australian law and it did seven things which I might briefly mention.

Firstly, it recognised and protected Native Title rights.

Secondly, it saw a distinction between the past and the future. With regard to the past, it sought to validate past acts of government which may have been invalid because of the existence of Native Title. In particular, acts which took place after 1975 when the Racial Discrimination Act was passed in Australia in implementation of Australia's obligations under the CERD convention. Tragic as the past dispossession of Australia's Indigenous People was, it was not possible in the government's view to undo these past events. Rather, the question of their validity was put to one side, though with compensation payable for the effect of that validation on any Native Title rights.

The third thing that the Native Title Act did was looked at the future and significantly restricted the future extinguishment of Native Title. A test called the freehold test was put in place. Freehold is the highest form of title to lands known in Australian law and to a large extent the Native Title Act provided that Native Title should be accorded the same rights as freehold.

Fourthly, the Act put in place a special Right to Negotiate. This was called, during the debate, a special measure, although some people regard this now as a provision of substantive equality to Native Title holders. It is a procedure which other land holders in Australia do not have. It's a procedure in relation to mining or compulsory acquisition of Native Title land. It provides for notification to Native Title holders and others, good faith negotiation, a determination by a specialist independent body - the National Native Title Tribunal - and with a limited override by ministers. It's important to note that this Right to Negotiate was not only available to people who had a determined claim for Native Title, but also to credible claimants. One of the problems which Australia had in this area was that the recognition of Native Title had come very late in Australia's history and it was very unclear where Native Title existed and who might hold it. This was why special rights were given to claimants, not just those who had a determination by a court that they held Native Title.

The fifth thing the Act did was provide a process for obtaining a determination of Native Title from a specialist tribunal, which I mentioned, the National Native Title Tribunal and the Federal Court. That process placed a particular emphasis on mediation in resolving disputes about Native Title.

Sixthly, Aboriginal and Torres Strait Islander representative bodies were established to assist claimants to make their claims for Native Title and these bodies were funded.

Seventhly, a Land Fund was established to enable those Indigenous People who had been dispossessed, and whose Native Title rights had been extinguished, to purchase land and that Land Fund will grow to a guaranteed capital base of about $1.3 billion.

On the basis of the Mabo decision and the Native Title Act, there are a number of assumptions made about how much Native Title might exist in Australia. The assumptions were that about 39 percent of Australia would be able to be claimed. This was land which was vacant crown land or in which there were no other significant interests. Because there were no other such interests, it was assumed that Native Title might be equivalent in those areas to ownership of the land. It was also assumed at this time that there was probably about 60 percent of Australia where Native Title could not be obtained or claimed because in these areas it had been extinguished by past acts of government over the 200 years of colonisation.

The third event which I mentioned was the Wik decision handed down by the High Court in 1996. That decision concerned pastoral leases which are a type of grant made by governments to third parties in Australia. They are grants of rights which allow the third party to carry on pasturing, and in some cases, agricultural activities, and in some cases, primary production activities.

The High Court held in the Wik case that the grant of a pastoral lease in the past in Australia had not necessarily extinguished Native Title rights to the land concerned. Rather, Native Title holders and pastoral lessees could co-exist on pastoral lease land. This decision raised a number of issues for the government. First of all, pastoral leases make up about 40 percent of Australia. Therefore added to the original 39 percent, it became clear that Native Title claims could be made over up to about 79 percent of Australia.

Secondly however, on pastoral lease land, it was clear that Native Title might not amount to full ownership of that land because the Native Title holders shared the land with the pastoral lessees. There were two co-existing rights, neither of which would equate to full ownership.

Thirdly, whilst the High Court decision established some basic principles, it did not deal in any great detail with the relationship between the Native Title holders and the pastoral lessees on pastoral lease land. The relationship of these two groups of rights was unclear. These issues needed to be dealt with by the government. In addition, there are a range of other issues which had arisen during the several years of operation of the Native Title Act. In the written submission, a number of these are identified and I'm happy to answer questions about them but it's clear from the government's point of view that the issues raised by the Wik decision itself were the most significant.

The fourth event which I mentioned was the Native Title Amendment Act. This was an Act proposed by the government which sought to deal with those issues raised by the Wik decision and the other issues which had arisen with regard to the workings of the Native Title Act which issues are set out in the paper which Australia has provided.

The development and passage of the Native Title Amendment Act was lengthy and controversial in Australia. There were significant consultations with a wide range of stakeholders, including Indigenous stakeholders but it would have to be said that there was no agreement with Indigenous stakeholders. Nor was there agreement with other stakeholders about the final outcome. However it was an open process. There was extensive parliamentary debate and during that debate the government accepted many changes and some of those changes were beneficial to Indigenous interests within the overall package. During the development of that Amendment Act, Australia was aware of its obligations under CERD and the Racial Discrimination Act which, as I have said, is Australia's implementation in domestic law of CERD. Because it is this Amendment Act which has raised most issues with the Committee, I thought I should just mention the major points within that Amendment Act and the view of the government with regard to those points.

Firstly, the Amendment Act also included its own validation regime. Before the Wik decision, many governments in Australia - State governments, Territory government, and to some extent the Commonwealth government had assumed that Native Title did not exist on pastoral lease land. From the Commonwealth government's point of view, this was a legitimate assumption. It was an assumption based on statements and words used by the High Court, the Federal Court, the National Native Title Tribunal, the Native Title Act itself and the debate with regard to that Act, and other sources. It was a statement which proved to be false in the Wik decision. But the government's position was that the remedy was not to invalidate grants made to people on the basis of that assumption proved false by the Wik decision. The government's policy was not to try and undo past events.

Rather, the Commonwealth's policy was: to validate a limited range of acts which had occurred in this intermediate period between the Native Title Act's commencement and the Wik decision; to provide compensation to Native Title holders if their rights had been affected by that validation; to provide a measure of notification; and, to allow for some agreements to be made with regard to compensation.

It needs to be stated that the validation regime in the Amendment Act is a very limited regime. It is a regime much more limited than that in the Native Title Act itself. It essentially deals with the granting of mining leases over pastoral lease land and it is unlikely that there'll be any extinguishment of Native Title rights by that validation regime. In the government's view, this validation regime had a legitimate object. It was not an arbitrary regime but a regime based on rational considerations which had minimal impact on Native Title rights.

The second area in the Native Title Amendment Act which I want to say a few words about is the confirmation of extinguishment regime. The policy of the Australian government was to bring a much greater level of certainty to bear on those areas where Native Title had in the past been extinguished in Australia and those areas where Native Title could continue to exist and could be claimed. Certainty and predictability have a high level of importance in land law and it was the government's policy that there should be certainty with regard to some of the areas where Native Title has, in the past, been extinguished in Australia. Again, the Australian government regards this as a legitimate objective. The implementation of that policy would avoid expensive, divisive, case-by-case, adversarial litigation which on the basis of Common Law principles would not deliver benefits to Native Title holders.

The determinations which were made as to which areas and which types of grants should be confirmed to have extinguished Native Title was done on the basis of the Wik decision and the Mabo decision. These determinations were not arbitrary. They were an attempt to implement the Common Law as expounded by the High Court. The Commonwealth government rejected many proposals from States and Territories to confirm extinguishment in other areas. In particular, the Commonwealth government rejected proposals that it should confirm the wholesale extinguishment of Native Title on pastoral lease land. This was a proposition which was put strongly to the government but which the government rejected - firstly, on the basis that it would be contrary to the decision of the High Court in Wik and secondly, because the Commonwealth recognised that it would be contrary to its obligations under CERD and under the Racial Discrimination Act.

The confirmation regime which is implemented in the Native Title Amendment Act leaves 79 percent of Australia able to be claimed by Native Title holders. The Native Title Act allows - if in the future it becomes clear that inappropriate grants or types of grants or actions have been included in the confirmation regime - for those to be removed from that regime. In addition, the Commonwealth proposed amendments itself to the Native Title Act which accepted Opposition concerns and Indigenous concerns about some things which, in the first instance, were included in that regime. It leaves to the Common Law, the position of national parks and crown-to-crown grants which were a particular concern to Opposition parties and Indigenous concerns.

Further, the Native Title Act includes provision which allows Native Title claims to be made over land where there has been extinguishment once the extinguishing Act has disappeared or been done away with. For example, if Native Title has been extinguished by a public work, for example by a road or a school, and in the future that road is no longer needed or that school is no longer needed, the Native Title Act allows for those lands to be claimed, even though Native Title may have been extinguished by the road or the school. Similarly, Section 47B of the Amendment Act allows Native Title to be claimed where grants have been made which may have extinguished Native Title but where those grants no longer exist. So whilst freehold grant or leasehold grant may have been made and may have extinguished Native Title, if in the future those grants no longer exist, Native Title claimants can claim those lands. This is a position much more beneficial to Native Title holders than the general Common Law and lastly, with regard to this confirmation regime, the government has maintained the Land Fund which enables Indigenous People to purchase land to which they have a special attachment but where there has been extinguishment of Native Title.

The third major area of the Native Title Amendment Act concerns agreements. The Native Title Act itself placed a particular emphasis on adversarial litigation as a way of resolving Native Title issues. It was recognised by many parties that that may not have been appropriate and that these issues would better be resolved by agreements. The Native Title Amendment Act includes a large number of provisions which allow, enable and facilitate agreements between Native Title holders and farmers and pastoralists, between Native Title holders and miners, between Native Title holders and government.

The fourth point with regard to the Amendment Act concerns primary production and the relationship between Native Title holders and pastoral lessees. As I said before, the government accepted the decision in Wik that pastoral leases do not extinguish Native Title but that Native Title and pastoral lessees can co-exist on the same land. However, that decision left many issues unresolved. As I mentioned, many suggested that the government should extinguish all Native Title on pastoral leases. The government rejected this suggestion. Rather, what the Native Title Amendment Act does is provide some basic rules with regard to the relationship between Native Title holders and pastoral lessees on pastoral lease land. It sets out some things that pastoralists can do, and can be allowed to do, and some things that pastoralists cannot do if Native Title exists on that land. It also sets out some things Native Title holders can do, including in some cases access rights, and including in some cases the Right to Negotiate or alternative regimes. These are rights which pastoralists do not have.

What the government was seeking to do was to balance two sets of rights - the rights of the Native Title holders and the rights of the pastoral lessees. The government recognises that Indigenous representatives were unhappy with the balance that was struck but also that some pastoralists were unhappy with the balance that was struck but from the government's point of view, it was an attempt to strike an appropriate balance and, as I just mentioned, the government's policy is that the agreement provisions in the Native Title Amendment Act should be used from now on by pastoral lessees and Native Title holders in order to establish the basis for their co-existing rights.

The fifth point about the Amendment Act concerns the Right to Negotiate. I mentioned that Right to Negotiate when I was talking about the Act itself. There was an assumption when the Native Title Act was passed that Native Title would exist principally on vacant crown land where Native Title holders' rights would amount to full ownership. And the Right to Negotiate was developed in that context. The government believes that the full Right to Negotiate is not necessarily appropriate where Native Title is only a co-existing right. It has been suggested by some that the Act allows for the full removal of all Native Title rights with regard to mining and compulsory acquisition on pastoral lease land. This is not right. In many cases, the full Right to Negotiate will remain on pastoral lease land and in Australia that's the case, notwithstanding that the Act was passed last year.

The full Right to Negotiate does continue to exist on pastoral lease lands. But the Act does allow States and Territories to put in place alternative Right to Negotiate regimes, in particular on pastoral lease land. These alternative regimes, however, must meet some specific criteria, and I'd like just briefly to mention those criteria.

The bill, as originally proposed by the Commonwealth government, said that States and Territories should be able to put in place regimes which gave to Native Title holders on pastoral lease lands the same rights that pastoral lessees had. In other words, the position of formal equality. However during the process through which the Act worked its way through parliament, the government adjusted its position in this respect in a way which sought to recognise the unique characteristics of Native Title and the fact that the interests and rights and concerns of Native Title holders are not the same as the interests, rights, and concerns of pastoral lessees.

So, Section 43 of the Native Title Act now sets out a checklist of criteria that States and Territories who want to remove the Right to Negotiate from pastoral lease land and replace it with their own regime must meet. Those requirements include - notification of Native Title holders, representative bodies and claimants; an opportunity for them to object to the mining or the compulsory acquisition; an opportunity for consultation in particular to minimise the effect of the mine on Native Title rights; and decision with regard to the mine by an independent person. In addition, these alternative regimes must be approved by a Commonwealth minister and are subject to disallowance by the Commonwealth parliament.

I'm more than happy to answer other questions about other changes to the Right to Negotiate regime but in essence, the Commonwealth government's position is, that it has adjusted that regime in some respects but it has adjusted it in a way which still recognises the peculiar and specific rights of Native Title holders. In summary therefore, the government's position is that the Native Title Act as amended by the Native Title Amendment Act continues to recognise and protect Native Title rights, it respects the decisions of the High Court in Mabo and Wik, it does not seek to undo the past and specifically remedy the historic dispossession of Indigenous Peoples in Australia but it does seek to provide some certainty about where there has been extinguishment and it does seek to provide some remedies into the future which now enable Native Title holders to claim land notwithstanding extinguishment. And, it has maintained the Land Fund to enable Indigenous People to purchase land notwithstanding extinguishment.

In particular, the Act as amended does seek to significantly limit any future extinguishment of Native Title and it seeks to incorporate Native Title rights into Australian laws. It maintains much of the Right to Negotiate, it does allow States and Territories to put in place their own alternative regimes, but it sets some basic rules and basic criteria which those regimes must meet. It gives a much greater role to agreements; it maintains the claims process with an emphasis on mediation; it allows for claims to be made over 79 percent of Australia - and a significant part of Australia has been claimed in the more than 880 claims which are currently being processed - and it provides a greater role for representative bodies to assist Native Title claimants to make their claims.

As I said at the beginning, Native Title is a difficult and complex issue for Australia. It's a long term issue with which Australia will need to continue to grapple. The Amendment Act which the Committee is investigating seeks to maintain balance and seeks to implement some specific policy objectives of the Australian government. There has been criticism of the balance which has been struck, in particular by Indigenous People, and also by others. But in terms of the government's position, it sees this as a way forward - a way forward which the government believes is in compliance with its obligations under CERD.

Very briefly I'd like to just talk through the two other issues which the Committee has raised. The Committee has raised proposed changes to Land Rights law in Australia which, in particular, we take to mean the Northern Territory Land Rights Act which is an Act of the Commonwealth government. The Commonwealth government has sought a report on that Act. The Reeves Report is the first comprehensive review of that Land Rights Act since 1983 and it recommends substantial changes to the operation of that Act. The government will carefully consider the report's recommendations. Further, the report is being considered by a parliamentary committee on Aboriginal and Torres Strait Islander affairs. Again, the government will consider the recommendations of that committee. The government has made no decisions on the possible implementation of any of the recommendations of the Reeves Report.

The third issue which the Committee raised was the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner. As Mr Goledzinowski mentioned at the beginning, Dr William Jonas has recently been appointed to this position. The functions of the position have not changed. However the government has reviewed the work of the Human Rights and Equal Opportunity Commission and has put forward legislation to restructure that commission. That legislation will abolish the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner if it is passed and, confer the current functions of the commissioner on the commission as a whole.

Other specialist positions will be dealt with in exactly the same way. That is, the special obligations of the Aboriginal and Torres Strait Islander Social Justice Commissioner will be placed on the commission as a whole as will the special functions and obligations of other particular commissioners. The government's decision to abolish portfolio-specific commissioners is aimed at addressing the perception which has existed in the past, that the commission is too focused on protecting those sections of the community for whom a specific commissioner exists - often to the detriment of other disadvantaged or vulnerable sections of the community.

The introduction of more generalist, deputy-presidents will address this perception. It will then be up to the commission to delegate responsibility to the performance of functions currently exercised by the commissioner to a deputy-president. One of the deputy-presidents in the new restructured commission will be given responsibility for race discrimination and social justice issues. The government recognises both the practical importance and symbolic significance of monitoring educative and reporting functions in relation to the human rights of Indigenous Australians and remains committed to ensuring these can be performed effectively by the commission. Thank you.

Chairman: Now I want to thank the leader of the Australian delegation and his delegation for the statements they made in introducing the report. Before giving the floor to the country rapporteur, I would like to refer to something which I wanted to be reflected in the record of this Committee: that I received so many letters, communications, and complaints from Australia from individuals, from groups of individuals, from NGOs and I want to say that I read all of them with care and attention. I gave some of them to the country rapporteur to be under her disposal when she makes her study of the report. Maybe she received equally some of these complaints but I want to assure everyone, including the Australian delegation, of the fact that I received many communications which I read very carefully.

And, if I might add that they convinced me more and more that the decision that we took on the 11th of August of last year concerning our wish to examine, and continue to consider, the compatibility of those changes which were introduced with our convention was valid because I think that I became, after reading those letters and communications, alert and aware of so many additional facts that I hope will come up during the discussion, and through the discussion that we have with the government of Australia.

I'm sure that we will receive better understanding and maybe we will help to some extent in shortening that which was referred to as the long-term consideration which alarmed me a little bit at the beginning and at the end of your session. A long term consideration of the situation is a little bit alarming but maybe we can shorten this period of the consideration and we can help to the extent that some changes could happen, a new approach could be found, maybe we have an idea that could be considered by Australia. Having said that, I would like to give the floor to our distinguished colleague, the special rapporteur, Ms McDougall. You have the floor Ms McDougall.

Ms McDougall's session transcribed elsewhere on web site.

Chairman: I wish to thank more strongly the country rapporteur for her in-depth and comprehensive analysis of the report under consideration, as well as for the thought-out questions she put to the delegation of the contracting party for them to respond to. The next speaker on my list is Mr Diaconu on whom I now call. You have the floor.

Mr Diaconu: The needs of the broader Australian community requires certainty and the impossibility of acts potentially made invalid because of the existence of Native Title.

Chairman: I thank Mr Diaconu for his intervention. I now call on the next speaker from my list. The last speaker from my list. So I call on the next speaker on my list with Mr Banton. You have the floor sir.

Mr Banton: The most important issue sir is to consider whether anything in the amended Native Title Act constitutes a violation of Australia's obligations under Articles 2 and 5 of CERD. I limit myself to this question. Many issues have been identified by Ms McDougall and by others on which I can express no opinion, could express no opinion without hearing lengthy argument but I must indicate the premises from which I speak now. Firstly, that Aboriginal Land Rights derived from the pre-colonial period are recognised at Common Law and can variably be extinguished. These rights are now recognised in international laws. Moreover, a Canadian precedent suggests that there may be a Common Law obligation upon a government to act in good faith and in the best interests of its Indigenous Peoples. Aboriginal Australians may have a right to effective participation in decision- taking about their rights in accordance with Article 21 of the Convention plus the two general recommendations to which Ms McDougall has referred.

Again, I understand that ATSIC and others have maintained that the national interest of Australia entails the protection of the Indigenous heritage. If this claim is not accepted I am curious as to the reasons for rejecting it. The question of possible violation is immediate. In August 1998 the Queensland government extinguished in perpetuity possible Native Title over 12 percent of the State's territory.

Now I start on the Right to Negotiate. Some of the changes to this right require more justification than I have seen. Such acts, for example, the removal of this right with respect to the inter-tidal zone. Such as many of the changes by which a government will grant a right to mine and the provisions for expediting government approval for changes in land use. Some future Acts concerning primary production, management of waters and air space, renewals and extensions, reservations and leases and facilities for services to the public will be varied without any Right to Negotiate. The restriction of claims to those already on the register is a significant restriction of this right. These are serious diminutions of a Common Law right protected by international law and they fail to recognise substantive rights. Some of the changes appear unobjectionable and may be improvements. But much in the future will depend on the interpretation of statutes and rules.

In this connection, the major change is that the Indigenous Peoples no longer trust the government's good faith. By turning to the extinguishment of Native Title, provisions for the validations of intermediate period acts appear to be formally discriminatory in that they bear only upon Native Title and not upon other causes of potential invalidity. As Ms McDougall has said, the powers conferred upon the governments by the amended Act are greater than those needed to implement the Wik decision. For example, regarding former stock route land. They embody new policies and prevent any revival of Native Title on the expiry of a nonexclusive tenure. I've heard that in NSW, time limits are being imposed with respect to the registration of claims which make it very difficult for the claimants to have the archaeological investigations undertaken which are necessary to assemble the kind of evidence they need. The confirmation of extinguishment provisions fail to accord Native Title holders equality before the law in that they bear only upon the Indigenous Peoples and affect titles of a kind that could have well been left undisturbed. Such as those which appear in the document submitted to us by Australians for Native Title and Reconciliations at the bottom of page 19.

We have a phrase, Mr Chairman - the devil is in the detail. Just look at the detail here at the bottom of page 19 of this memorandum which says that for example under the Act, 'All community purpose leases including those granted historically will have extinguished Native Title. However, community purpose leases is a category which potentially catches leases granted 100 years for bush race tracks which were used once a year for only a short period of time.' And there is more of this going on to road and rail corridors which in some parts of remote Australia are 200 or more metres wide. So that's the detail where the devil often resides. Then the definition of primary production purposes is very wide and apparently includes no meaningful requirement for consultation or negotiation with Native Title holders.

I would like to hear comment on the claims at page 25 of this same memorandum in Paragraph 3 saying that the primary production provisions discriminate against Native Title holders. That Native Title is a property right that either exists or does not exist. It's proof in a claim who established that it has existed from the date on which the State or Territory in which it lies was colonised. If before its existence has been established in a claim, it is overridden by any grazing or irrigation permission, it will be treated unlike other titles and a bit more to a similar effect. So, let me conclude. I understand that apparently over 60% of the Aboriginal population will be able to register no claims. Their ancestral Land Rights have already been extinguished. And I think that in these circumstances, the compatibility of the amendments with the convention's obligations is questionable. So I shall be listening to hear what my colleagues say about this and, of course, in particular to hear the replies of the Australian delegation.

Chairman: I thank Mr Banton for his contribution and I now call on the next speaker who is Mr Yutzis.

Mr Yutzis: Thank you Mr Chairman. In the history of this Committee and my involvement in it as an expert, I've never seen so much material. I think it comes to more than 600 pages I've got to read on this subject which demonstrates to me the importance of this matter and shows the extent of the importance we should accord to it. So in that context, Mr Chairman, I'd like to express thanks for the Australian delegations presence for the report they've presented to us which makes it possible to continue making progress in this process of dialogue to try and see what the best solution would be for this complex and difficult problem.

The first thing, Mr Chairman, I want to refer to, and I hope I'm not wrong in interpreting what I've heard in the first intervention by the first representative of Australia, I think an invitation was extended for some representative on the Committee or a special rapporteur to visit Australia. I'm not sure whether I heard right. So just take it that I said nothing. Perhaps it's more of a matter of desire than reality.

Now, Mr Chairman, I'd like to address this point from some other angles. Our distinguished colleague Ms McDougall, the special rapporteur on Australia, has gone in very great detail into many of the problems related to the matter of jurisprudence and all the different interpretations of the law. The first thing I want to say, and Ms McDougall said this, is that this problem has to be seen in context. In this context, Mr Chairman, where there are winners and losers in most social situations, it's clear that Aboriginal groups have been suffering a lot from time immemorial. We know all this is linked to the way children of Aborigines have been dealt with. We know the number of young Aborigines who are in prison and some not so young Aborigines who are in prison and the problems which have continued, as in other parts of the world with regard to the most vulnerable populations.

Third point, Mr Chairman, sometimes the subject is legal but sometimes it's the way it becomes legal. Let me explain that. A few hours ago when we were looking at Costa Rica, we recognised the difficulties some members of the Black community had in providing conclusive evidence on allegations concerning violations relating to those situations. I take some elements in the report which, it seems to me, provide some clarification in that regard. I'd like to refer first to Paragraph 29 of the report by Australia. On the subject of limitations in the 1993 Act and in this context the reviewed Act, it said that the population is not being helped to the extent initially planned by the representative bodies - the Aboriginal and Torres Strait Islander representative bodies. That's the first sentence in that Paragraph. Those bodies lacked explicit powers and functions and their accountability regime was not in line with the importance of their intended role. Now, this means here that we get an image of it being almost impossible to deal with these subjects, being even impossible for the organisations representing those groups.

Now, I'd like to link that to Paragraph 57 which Mr Diaconu mentioned where on this question relating to the co-existence of rights which distinguished representative of Australia also linked to the existence of interests, I think is very right that we should speak of the relationship between the co-existence of interests and the existence of interests, then we have to see what actually prevails, see whether if it's the right or the interest which prevails. But on this point, Mr Chairman, in connection with the response to the decision adopted in the Wik case, if you look carefully at the way this text is set out, there is no doubt about what pastoralists have. Those who have pastoral leases are legally occupying the land that they have to occupy. If we talk about those who raise cattle, we're told that there are certain questions about Native Title claimants who had previously not had access to pastoral leases might attempt to do so notwithstanding that they had a weak claim.

Now, I would prejudge this. I'm not sure how far you can state that the nature of their claims is more or less justified but there is an imbalance in this Paragraph between the situation attributed to those with pastoral leases and those of Native Title claimants. This, Mr Chairman, is something which occurs again in much of this report and accordingly perhaps and for other reasons too there is an excess of demands for registration tests. It's true that there is a great imbalance with respect to the request being made for the acceptance test with respect to Native Title.

Mr Chairman, the general resolution 51 on the rights of Indigenous Peoples says in Paragraph 5, 'The committee particularly urges state parties to recognise and protect the rights of Indigenous parties to possess, exploit, control and use their lands, territories and communal resources in cases where they have been deprived of such land and territory of which they were traditionally owners or which they'd occupied or used without free, informed consent of such populations' [which adopt measures to have them restored to them]. What is important to me here is we get an answer on the measures being taken to comply with this requirement but I go back again to another point, Mr Chairman, which is a very recent one, namely, the social commissioner post, Social Justice Commissioner. The distinguished representative of Australia said and I've been following this matter since the beginning, that now they will be setting up another structure which would deal with what the commissioner was dealing with.

My question then, have the native institutions been consulted about the place to be occupied by the commissioner and, at the same time, why is this a unilateral decision on the part of members of the state? It's true, Mr Chairman, that this has a great history behind it and it appears that there is a contradiction here between what's been being said since earlier this year to the extent that the government is not moving to the abolition of this post. So my question is, what are the reasons for this decision being taken and why is it being done unilaterally by the state itself? The other questions, Mr Chairman, have already been raised, very specifically by those who have taken the floor before me. Before being able to take a final decision on this subject which is of concern to us I do hope to have answers from the Australian delegation. Thank you very much.

Chairman: I thank Mr Yutzis for his intervention as far as to the point he raised at the beginning by way of clarification, perhaps it should be clarified that the government of Australia had extended an invitation to Mr Gle'le' Ahanhanzo which means the special rapporteur of the human rights commission for the contemporary forms of racial discrimination, etc. That is where the extent of the invitation to visit Australia and see for himself and then there were some difficulties concerning the dates of the visit. Once agreed, then it did not materialise. Then one side couldn't and then the other was unavailable. That is only for the sake of clarification and if you wish more detailed information, the delegation may wish to clarify when they respond. Mr Yutzis, that it was because of difficulties in interpretation, me, I was listening in English from Australian English, I was mostly able to get the point more easily than you have. I thank you for your statement and I now call on the next speaker on my list who is Mr Lechuga Hevin. You have the floor.

Mr Lechuga Hevin: Thank you Mr Chairman. I don't want to add any question which has already been raised by the rapporteur, Ms McDougall, who has done a very good in-depth analysis of the situation. And I don't want to repeat any of the questions raised by other colleagues. But I would just like to request some comments of a general nature from the Australian delegation.

I'd like to state firstly, that any modification of any sort to legislation governing an Indigenous population or the Indigenous population of Australia or any other country affects very much their way of life and their capacity to exist in their traditional rights to land. In that context, we have to recognise that the situation is not particularly encouraging, so to speak, because the government understands that the amendments agreed by the parliament to the Native Title Act of 93 are of benefit to the Aboriginal population. The Aboriginal population says that they aren't of benefit to them. For that reason, and I think that it would be useful If the government delegation which has given very detailed responses to the committee's requests, might comment in general terms on the information sent to us by NGOs. Those involved in the defence of human rights of Aboriginals who say or believe that these amendments extinguish some of the advantages which in recent years they had obtained and that the balance has been broken between the interests of Indigenous Peoples and the interests of those who are not Indigenous Peoples. With these amendments, the latter are more greatly benefited.

I'd also like a comment as to what extent there has been a reduction of access for Indigenous People to land which they enjoy traditionally and which, in practice, means some sort of infringement on their rights of heritage or inheritance. Have there been sufficient consultations with Aboriginal Peoples for the adoption of the amendments which affect them so much? Another point is that apparently legislation has benefited non-Native Title holders more than Native Title holders. This is an important point I think. All this information and other information which has already been provided to members of the committee were accompanied by two letters I think from members of the Labor party in the parliament who believe that the new measures are racially discriminatory against the Indigenous populations. In my view, these criticisms of the amendments agreed by the parliament must have a solid basis. Some people must consider themselves to be wronged by them. Having heard the views of the delegation, it would be very useful for us to have some further comments on these statements expressing the views of Aboriginal organisations. Thank you, Mr Chairman.