Mr Orr: Thank you very much and thank you again for the opportunity to appear before the Committee. Thank you also for the comments which were made and the questions which were asked on Friday. At the end of Friday, I made some general overall comments which would seek to inform my specific responses to the questions that had been raised. What I'd like to do now is work through those specific questions and, in particular, those which were raised by Ms McDougall in her statement. I'll try as I deal with those questions though to also deal with other comments and questions that were made by other speakers but I thought that the structure which Ms McDougall used was particularly helpful and that it might be easier for us all if I worked through that.

Both myself and Ms McDougall gave some background to Native Title issues in Australia and I think we both agree with regard to the basic issues there. I think we agree with regard to effect of the Mabo decision by the High Court which recognised for the first time in Australia the Land Rights of its Indigenous People. I think we also agreed as to the effect of the Native Title Act, in which the government of Australia and the parliament of Australia sought to protect those rights. I think we also agree to some extent at least with the submission which Australia has made - that's the written submission - which set out a number of bases upon which the government believed that the Act needed to be amended. These were leaving aside for the moment the Wik issue. That submission raises another number of problems with the working of the Native Title Act which successive governments had therefore sought to amend.

I think we also significantly agreed about the effect of the Wik decision and what it stood for. On the bottom of page 4 of Ms McDougall's summary statement, she sets out the core principles established by Mabo and Wik and as I said on Friday, the Australian government agrees with that summary. We agree that that decision provides that the grant in the past, of what is called a pastoral lease, that's a lease generally for pastoral and other, sometimes primary production activities does not necessarily and did not necessarily fully extinguish Native Title and therefore that in Australia, Native Title can co-exist with these pastoral leases.

The government believes, on the basis of the Wik decision, that Native Title may have been extinguished on those leases to the extent of the inconsistencies between the Native Title Rights and the rights of the pastoral lessee.

The government believes, on the bases of the Wik decision and later decisions, that that partial extinguishment that may have occurred was permanent but the government believes, and as Ms McDougall has summarised, that Native Title Rights which haven't been extinguished on pastoral lease land are able to continue, and that Native Title holders are able to exercise those rights. However, those rights must yield to the rights of the pastoral lessee. I've added a bit more detail in that summary of the decision that was in Ms McDougall's summary but I think on the main points we agree. So the answer to her first question is yes, this is a fair reading. As to the second question, that is: given the limited nature of pastoral leases, why would the Wik decision cause a high degree of uncertainty, I think we take a different approach. The government is of the view that the Wik decision did create a very high level of uncertainty.

First of all, the rights of the pastoral lessee in Australia are very unclear. They're often not specified. There's often significant variation in those rights and that variation can be quite extensive. So whilst in some places, they are only for pastoral activities, in other places they are for agricultural activities which include quite intensive, the right to carry on quite intensive agriculture. Further, many pastoral lessees are able to obtain rights from the government to carry on other activities such as fishery, such as agriculture, such as forestry, and therefore the rights which pastoral lessees have are variable and often unclear.

The rights which Native Title holders have are also very unclear because Native Title in Australia has only been found to exist since 1992 and for most of Australia, it's unclear who holds the Native Title and what the rights are which the Native Title holders have, and therefore the relationship between these two, these two difficult and unclarified bundles of rights is also not clear. Further, the operation of the Native Title Act in this situation is unclear because the Native Title Act was developed on the assumption there wouldn't be this situation of co-existing rights, and therefore it didn't deal with this situation and on one interpretation, it reversed the view of Wik and provided that Native Title Rights had priority over the pastoral lessees rights.

Some of these issues are quite complicated and I'm happy to answer specific questions about it. I don't want to over-complicate the situation, but my basic position is simply this - that the government of Australia has thought that the Wik decision gave rise to significant uncertainty about the relationship between Native Title Rights and the rights of pastoral lessees. And that uncertainty was demonstrated by the public and political debate in Australia following the judgment.

The second lot of questions are to do with the validation regime and they begin on page 6 of Ms McDougall's statement. I thought it might be useful just to spend a few minutes reiterating why it was that the Commonwealth government thought there needed to be a validation regime. In 1993, when the Native Title Act was passed, it provided a significant level of protection to Native Title in Australia. And it restricted what governments could do. It restricted them in particular with regard to the granting of mining leases and other activities where Native Title existed. In particular, mining leases could only be issued over Native Title land after the full Right to Negotiate process had been gone through and we discussed that process at some length on Friday. It was assumed by many that Native Title existed primarily on vacant crown land and therefore where governments were issuing mining rights over vacant crown land, they had to go through the Right to Negotiate. But it was also assumed that Native Title had been extinguished in the past on freehold and leasehold land including pastoral lease land, and because of this, it was assumed by governments that there was no need to go through the Right to Negotiate before granting mining rights on pastoral lease land.

Now, as I've just explained, the Wik decision held that that assumption was wrong. It became clear that Native Title could exist on pastoral lease land and therefore that some of those mining grants given by governments should have gone through the Right to Negotiate process but didn't. On the basis of the Native Title Act, some of those grants were therefore possibly invalid. So the answer to the first question by Ms McDougall with regard to this validation issue - that question being - is it correct that many of the actions validated by the amendments may well have been invalid under the Wik decision is yes. The position was that the Native Title Act would have rendered these invalid. There are only actions before the Wik decision, before it was realised that Native Title existed on pastoral lease land but that was the effect of the Native Title Act.

The answer to the second question, why didn't the government look and require a case by case analysis of all these grants and isn't the blanket validation which was provided by the Act in conflict with the Wik decision? The answer from Australia to that is no. First of all, there's nothing in the Wik decision that requires a case by case analysis of these invalidities, these possibly invalid grants, and indeed it's the position of the government that it would not have been possible to cure the invalidity of these grants by a case by case analysis by agreements between particular Native Title holders and particular miners.

Rather, the policy of the government is that those actions which were taken on the assumption that Native Title didn't exist on pastoral lease land before the Wik decision should be validated. That is, that grants made with third parties on the basis of a bona fide but false assumption should not be invalidated but that the Native Title Amendment Act should enable those to be validated. But it should do that with the least possible effect on Native Title Rights. That is, it wasn't the concern of the government here to affect or extinguish Native Title Rights but to impose the least amount of damage on those rights, which is why, as part of this validation regime, there's a provision for notification about the types of mining grants which may have been an issue here and that provision was put in the Amendment Act at the request of the Opposition and Indigenous groups. There's compensation paid to Native Title holders for any effect on their rights by the grants which were invalid and have now been validated and there's also a provision that with regard to the grant of mining rights which have been validated in this regime, there is no extinguishment of Native Title, rather the non-extinguishing principle which the Act generally sets down applies. That is, at the end of the mine, the Native Title holders get their land back.

In Australia's view therefore this validation regime accords generally with this committee's general recommendation 23 concerning Indigenous People. That is with regard to the validation of these grants, in particular mining grants. There is restitution of this land for the Native Title holders when the mine has finished and there is compensation. Another point to be made with regard to this validation regime as I said on Friday is it's much more limited than the regime in the 1993 Act. That 1993 Act provided validation with regard to all grants on all lands in Australia and it provided validations of acts back to 1788 when settlement began.

This validation regime is much more limited. It only provides for validation of acts between 1993 and 1996 and only those grants which occurred on pastoral lease land because the legal uncertainty only concerned pastoral lease land. Again I understand that this is complicated and I apologise for that. I'm happy to answer further questions with regard to that issue. As to the additional questions by Ms McDougall, in relation to validation, perhaps I could summarise them by saying that they take this approach. In summary, Ms McDougall asks, didn't governments and miners act recklessly in this period by either making grants or receiving grants over pastoral lease land without going through the Native Title Act processes? Shouldn't these grants be left invalid? Shouldn't people have paid attention to what the Social Justice Commissioner said when he warned about such grants? My response to that is that in summary far from acting recklessly, governments acted in this period in accordance with what was the balance of legal opinion. I note the comment by the Social Justice Commissioner which warns against such grants but there are also numerous other comments by numerous other people which suggested that Native Title did not exist on pastoral lease land.

For example, Senator Gareth Evans, in the Senate, debating the Native Title Act, says: 'the government of course believes that the chances of success for any Native Title claim that may be made in respect of such leases are negligible.' That was his statement. Even some Indigenous leaders said words to the effect - 'I rule out the possibility in Queensland of people, that's Native Title claimants, pursuing any rights in relation to pastoral leases, owned by non-Aboriginal people'. And there are many similar other comments which suggested that the general opinion was that Native Title didn't exist on pastoral lease land. They were just comments however, both the comments by the Social Justice Commissioner and the other comments I read were just comments by politicians and other advocates.

With regard to what the law itself was however, the government believes that the balance of legal opinion was that there was not Native Title on pastoral lease land. This is what the High Court had impliedly said in the Mabo decision It's what the full Federal Court said when it considered the Wik case. It's what the single judge in the Federal Court said when he considered the Wik case. It's what the National Native Title Tribunal had said. It's what is implied in the Native Title Act itself both in the preamble to that Act and various sections including Section 47. And as I indicated, it's what many who debated the Act in the parliament of Australia in 1993 believed.

In particular, I want to refer to one matter here, and that is that in the Mabo decision, it was Justice Brennan of the High Court who gave the primary judgment in that case. He said in that case that Native Title had been extinguished by the grant of freehold or by leases. When he came to consider the Wik decision, he was in the minority. That is, he held that pastoral leases did extinguish Native Title. Though the majority of the court held that that wasn't the case. It's a submission of the government that if Justice Brennan who gave the lead judgment in Mabo and later become Chief Justice of the High Court was of the view that pastoral leases extinguish Native Title, then it was appropriate for governments during this period for the Wik decision to Act on a similar assumption.

The last question which Ms McDougall raises with regard to the validation regime is that she suggests, it is discriminatory in that it only deals with Native Title rights and does not provide any countervailing benefits. I raised or discussed some of these issues on Friday. It is true that the validation only relates to actions which affected Native Title but that's because the Native Title Act itself is only concerned with Native Title. It does not make it discriminatory that that Act only deals with Native Title Rights. Secondly, with regard to this validation regime, we're talking about things that happened in the past, between 1993 and 1996.

In acknowledging and recognising things that happened in the past, the Australian government doesn't believe that it is acting discriminatorily. Thirdly, there is only validation of actions taken in ignorance of what the law was and before there was clarity as to what the law was. And again that's a basis in Australia's view of finding that this validation is not discriminatory. Fourthly, any effect that validation has on Native Title gives to Native Title holders a compensation right which they can pursue in the courts. And fifthly, as I mentioned with regard to mining grants which are the main grants we're talking about here, the non-extinguishment principle applies. That is, that when the mine finishes, the Native Title holders get their land back. There is restitution therefore. In the Australian government's view, this validation regime isn't of itself discriminatory, and in particular isn't when we look at the rest of the Native Title Act and the provisions it includes. And I might come back to those later because the government believes that the Native Title Act as a whole continues to provide significant countervailing protections and benefits to Native Title holders.

The third major issue that Ms McDougall and others covered is in relation to which a number of questions were asked [was the Mr Diaconu.] As I mentioned on Friday the policy of the Australian government is to bring a much greater level of certainty to bear as to where Native Title has been extinguished in the past and where it has not been extinguished and can be claimed. As I said on Friday, certainty and predictability about these issues are legitimate objectives and the government has sought to provide this certainty on the basis of the Mabo and Wik decisions and that this is a fair and rational basis for pursuing these objectives.

The first question that Ms McDougall asks is: isn't the Common Law itself racially discriminatory with regard to extinguishment? And, our answer to that is yes. I think, yes, we agree it is. And this is the very reason why the Native Title Act in the future prevents any further extinguishing of Native Title by such grants of freehold or leasehold. That's the main thing the Native Title Act does. It says with regard to the future we cannot let Native Title be extinguished in this way anymore. For the future, it protects Native Title much more than the Common Law does but what the Native Title Act doesn't and Australia believes that it is not obliged to do is to go back and undo the past.

As I said on Friday, the confirmation regime is just really providing some certainty with regard to what has already happened in Australia. It's providing some certainty as to the historical dispossession and extinguishment so that people can from now on work forward from that base. It is true that the Act provides, with regard to this confirmation of extinguishment, that extinguishment is permanent. The government believes that position has recently been confirmed by the High Court in another decision - the decision of Fejo. But again the Native Title Act even with regard to this confirmation of extinguishment in the past softens the impact of the Common Law.

I mentioned briefly on Friday sections 47, 47A and 47B of the Native Title Act. It's 47B which is perhaps most important and I don't want to bore you with the details of that provision, but what it does is allows Native Title holders to claim land even where their rights have been extinguished under the Common Law and even where that extinguishment has been confirmed by the confirmation regime. So where there's been a grant of freehold in the past or leasehold in the past and those grants no longer exist, Native Title holders can now claim that land as Native Title land and get restitution of that land. In the government's view, this is a very significant benefit. It's a benefit not available under the Common Law and it's a benefit that's only available because of the Amendment Act.

The second question which Ms McDougall asks about the confirmation regime is: why can't the position just be left to the courts to work out on a case by case basis in accordance with what the Common Law what the effect of the past grants has been? And that is a legitimate policy position, a legitimate policy objective, but for the government of Australia, there's a choice between that position and another policy position - the case by case position. This is the assessment of the government on that position: in this confirmation regime we're talking about grants of freehold title and about 600 types of leases which have occurred in the past. There are about 60,000 of these leases . If the matter is just left to the Common Law, it will mean that there'll be adversarial litigation in the courts in relation to a great many of these leases. There'll be claims by Native Title holders against the lease/land holders, and these claims will generally be in relation to land in remote and small communities. In the government's view, this will be quite divisive as I said it will be adversarial litigation, it will be expensive in that the government funds the Native Title claimants and sometimes provides legal aid to lease holders and also provides the tribunal and court to hear these matters. It will be a very lengthy process which will take quite a long time and on the basis of Wik and Mabo, the Native Title claimants will not win these proceedings, they will lose. So this divisive and adversarial process will achieve nothing for Australia's Indigenous People and will simply divide rural communities.

From the governments point of view, it's the second option, the option which the Amendment Act puts forward which is more appropriate. That option does confirm extinguishment in line with the Wik and Mabo decisions on about 21 percent of Australia. But as I said, it does so on a fair and rational basis. It leaves therefore 79 percent of Australia able to be claimed. It avoids the costly and expensive and divisive litigation with regard to that 21 percent of Australia which is subject to freehold and leasehold land. But also this second option, as I've said, allows the Native Title claimants to obtain their land back if these freehold or leasehold grants no longer exist under Section 47B of the Act which I've just explained.

Further, the second option maintains the Land Fund, and the Land Fund was established in 1993 and was discussed in the Australian government submission. That fund was established with an initial allocation of $200 million dollars and subsequent allocations of $121 million per year indexed. This will provide a guaranteed capital base of about $1.3 billion to enable Indigenous People to purchase land and the sort of land they can purchase is this land where there has been this confirmation of extinguishment. In the government's view its much better to have a process where Indigenous People are able to purchase that land by agreement from the landholders than have the option of case by case, adversarial, divisive litigation which the Native Title claimants will probably lose. This option which the government has implemented in the Amendment Act therefore delivers real benefits to Indigenous Australians without adversarial, costly litigation.

The third question which Ms McDougall asks is about the Mirriwung Gagerong case. And she suggests that, that case provides that many titles which are subject to the confirmation regime may not under Common Law have extinguished Native Title. And, the government accepts that point. Most of that Mirriwung Gagerong case is about pastoral land and the government accepts that Native Title can exist on pastoral lease land and does exist on those pastoral leases. There are several other leases involved in that case which are part of the confirmation regime but where the judge in that case has held there hasn't been extinguishment. The government believes however that the decision on this issue is not in line with the High Court's decision in Wik and Mabo and the decision on these issues is to be appealed. At any rate, the Native Title Act enables removal of particular leases from the confirmation regime. Section 23D of the Act does that. So if it turns out that in a particular case there is a lease which clearly a Common Law didn't extinguish Native Title but which is in the confirmation regime, it's possible to remove that.

As I said on Friday with regard to this confirmation regime, the government accepted a number of suggestions by the Opposition and Indigenous representatives, in the debate on the legislation to soften the effect of the regime. It left to the Common Law the position of national parks. It left to the Common Law the position of pastoral leases. And at the same time the government rejected many suggestions that it should confirm wholesale extinguishment on pastoral lease land and on other types of leases. In the government's view, it took a fair and rational approach with regard to the confirmation regime, an approach which is not discriminatory.

The last question which Ms McDougall asks with regard to the confirmation regime was: doesn't this divest Native Title holders of their rights in a very significant way? And I think that Mr Banton also asked a similar question in the comments he made. The government's position is that this confirmation regime provides no divestment of Native Title rights. It is simply a recognition of the historical position that native title has been extinguished by grants of freehold and leasehold in Australia over the last 200 years on about 20 percent of the Australian land mass. The Australian government believes that it is not contrary to CERD to confirm this historical position. Nor is it contrary to the general recommendations of this Committee concerning Indigenous Peoples. The provisions are simply an acknowledgment of past dispossession and extinguishment and the government does not believe that this is contrary, as I said, to CERD.

The government does believe that it does have some obligations, serious obligations under CERD though, to do things into the future and in particular to take two steps: to facilitate the restitution of that land to Native Title holders where that's possible and to prevent any further extinguishment of Native Title rights into the future. And in the government's view, the Native Title Act continues to do this. It facilitates the restitution of this land to Native Title holders in a number of ways. I've mentioned Section 47B of the Act which enables Native Title holders to get that land back once the freehold or leasehold grant has disappeared. I've mentioned the Land Fund which enables Native Title holders and other Indigenous People to purchase land which is subject to this regime. So there are a number of measures in the Act which facilitate restitution. The second point, the Act also prevents further extinguishment of Native Title into the future. In the future under the Native Title Act generally Native Title can only be extinguished by the agreement of the Native Title holders or by a wholly non-discriminatory compulsory acquisition process.

The fourth lot of questions which Ms McDougall asks were with regard to primary production regime. This regime seeks to strike an appropriate balance between the rights of Native Title holders and the rights of pastoral lessees on pastoral lease land. On the basis of the Wik decision which we've discussed earlier, which the government accepts, these two interests can co-exist. This is confirmed by the Amendment Act. However, as I've said, the government believes there's a significant amount of confusion and uncertainty about how those two rights co-exist. And the Native Title Amendment Act sets out some basic rules in relation to what things pastoralists can do, and are able to be allowed to do, and what things pastoralists cannot do, and cannot be allowed to do, where Native Title exists.

The first question Ms McDougall asks is with regard to the freehold test and she asks: is it appropriate to maintain that freehold test with regard to pastoral lease land? And the government's response to that is no. The freehold test is an appropriate test where the Native Title holders own the land, where their rights are equivalent to freehold and the test operates there so that governments can only affect the land of Native Title holders in the same way that they can affect the land of freeholders. But the government doesn't believe that that's an appropriate test where there's only co-existing rights, that is, where the land is shared by the Native Title holders and the pastoral lessee. Neither the Native Title holders nor the pastoral lessee should be treated like a freeholder because they're not; they're not the owners of the land; they're two groups who share the land with different interests. I'm happy to expand on that point in response to further questions if that's necessary.

The government believes that the balance which it set in this regime is an appropriate balance. The pastoral lessee is given the right to carry on primary production activities and I agree that that is broadly defined in the Act. But, essentially it is a description of those activities which many pastoral lessees already carried on in Australia before the Wik decision or were able to be allowed to carry on by governments before the Wik decision. That is, the government doesn't believe that this is a massive over-reach but an attempt to simply set down what the position was. Importantly however, what the Amendment Act provides is that these activities do not extinguish Native Title and therefore the Native Title rights are confirmed. It provides compensation to Native Title holders for the effect of any of these activities on their rights. And most importantly, it says that the pastoral lessee is not able to carry on other activities - other non-primary production activities - and most importantly isn't able to upgrade his or her lease to an exclusive possession lease or a freehold tenure. This was something that many pastoral lessees did not have a legal right to do but were able to do before Wik and the Amendment Act. The Act now stops the extinguishment of Native Title by the upgrade of pastoral leases to freehold or exclusive possession leases.

On the other hand, what the Act does is give rights to Native Title holders with regard to this land. Native Title claimants are given a right to access. The Right to Negotiate or other alternative regimes, are able to continue on pastoral lease land. So at the moment in Australia, if there's to be a mine on pastoral lease land, the Native Title claimants get the full Right to Negotiate with regard to that mine. These are rights much greater than the pastoral lessee gets and there are a number of other benefits which Native Title holders get on that land and there are a number of other protections for them. Australia believes that neither the Common Law, nor CERD, requires that it give Native Title rights a pre-eminent position on pastoral lease land. Rather what Australia believes is required, is that the law balances the two lots of co-existing interests and this is what the Act tries to do. It recognises the legitimate rights of pastoral lessees to manage their activities and carry on primary production activities, but also recognises the significant connection of Native Title holders to this land and seeks to protect their rights.

As I mentioned in my presentation on Friday it is simply not possible for this Act to develop a whole lot of rules about how Native Title holders and pastoral lessees should co-exist on this land. So the government's policy is to encourage agreements, between particular groups of Native Title holders and particular lessees about how they can co-exist on the land and the Act puts in place a number of provisions which both facilitate and enable such agreements and the government sees this as the way forward. As I mentioned on Friday, there was significant pressure on the government to extinguish all Native Title from pastoral lease land in Australia. The government resisted that pressure in part because it believed that such an action would clearly be in breach of CERD. In my submission, the Committee should at least acknowledge Australia's recognition of its obligations under CERD in this respect.

The next area I'd just like to briefly deal with is the Right to Negotiate. In Ms McDougall's paper she lists firstly a number of areas where the Right to Negotiate has been removed. You'll recall from our discussion on Friday that the Right to Negotiate is a special procedural right given to Native Title holders under the 1993 Act in relation to mining and compulsory acquisition. I don't think I need to go into the detail of this but from Australia's point of view there's some over-statements here of where the Right to Negotiate existed under the 1993 Act. There was no Right to Negotiate under the 1993 Act in relation to offshore areas, in relation to primary production rights, in relation to regulation of water, in relation to many renewals, in relation to the implementation of reservations and in relation to exploration where there was an approved scheme by a Commonwealth minister.

So, the inference that the Right to Negotiate is being removed in all those areas by the Amendment Act is, in Australia's submission, not true. If the Committee wanted further detail about that I could provide that but in essence, Australia agrees that in some areas the Right to Negotiate has been removed but not in the broad sweep of areas that is suggested in the paper by Ms McDougall. But perhaps most importantly, it is not the fact that the removal of the Right to Negotiate means that Native Title holders have no rights with regard to mining and compulsory acquisition. Rather where it is removed, the Act continues to ensure that there are procedures in place that acknowledge and address the interests of Native Title holders.

I'm happy to give some examples of these and I think I did on Friday but one of them is exploration. The Amendment Act allows exploration to be removed. That is, for the Right to Negotiate not to operate where what has been granted is simply a right to explore on Native Title land but that can only be done if certain specific criteria are met. And those criteria include that before the explorer goes onto the Native Title land, they must notify the Native Title holders and they must consult the Native Title holders. Those consultations must be about the protection and avoidance of sites of significance on that land; sites of significance to the Native Title holders. Those consultations must deal with access issues. Those consultations must deal with the way in which the explorer behaves on the land. In the government's view, these are very significant protections to the Native Title holders within this process.

Ms McDougall's paper also deals with the removal of the Right to Negotiate by States and Territories on pastoral lease land. I make a similar comment there. It is true that the Amendment Act enables the Right to Negotiate to be removed from pastoral lease land by States however it can only be removed if there are specific protections put in place. Those protections require that before any mining right is granted on pastoral lease land, the Native Title holders are notified, they have the ability to object, there must be consultation with them about the mine, including mediation. Their objection must be heard by an independent person, that decision must be able to be reviewed by the courts; it must only be able to be overridden in very limited circumstances, compensation must be paid to the Native Title holders for the effect on their right, and there must be laws in place to protect sites of particular significance to Native Title holders on their land. The government's position is that these are specific and important protections. So whilst it agrees with the general point that the Amendment Act does allow the removal of the Right to Negotiate, it does not agree that that means there are no protections for Native Title holders.

In Australia's view CERD does not require that the specific Right to Negotiate provisions in the 1993 Act be maintained forever in some fossilised form. Australia believes that it has a measure of discretion to develop alternative regimes, provided those regimes protect Native Title rights. In the process of developing the Amendment Act, the government accepted many amendments from the Opposition who were speaking on behalf of Indigenous representatives to the Right to Negotiate regime and its alternatives. A compromised position emerged and in that compromised position, the specific and distinct needs of Native Title holders in particular with regard to mining is met. Again, in Australia's view, the Committee should at least recognise that the Australian government moved considerably from its original position to ensure that in those areas where the Right to Negotiate is able to be removed, significant basic protections and standards remain and that these protections and standards are a significant recognition of the distinct needs of Native Title holders.

There are a number of other comments and questions about the registration test. The registration test is a test which Native Title claimants must pass in order to get the Right to Negotiate. I think it's true that it's generally recognised by both governments and Indigenous interests and a range of other interests that the registration test in the 1993 Act was too weak and it needed to be strengthened. It needed to be strengthened to ensure that these Right to Negotiate rights were available only to credible claimants. The Act does strengthen that registration test but failure to pass the registration test doesn't prevent the claim for Native Title proceeding through the courts and being determined in the courts. There is no limitation on further claims, either for registration or for Native Title, in the courts. I think Mr Banton might have suggested that was the case, but that's not the case. The government originally proposed a sunset clause on Native Title claims but during the process of developing the Act that sunset clause was deleted.

There were some questions about consultation between the government and Indigenous interests. There were significant consultations with Indigenous interests as part of the policy development process to the Native Title Amendment Act. There were also significant consultations with other groups. These consultations began in 1997. There were meetings with Indigenous interests, including a number of meetings directly with the Prime Minister. These took place before the National Indigenous Working Group's decision to withdraw from direct discussions with government after the release of the 10 Point Plan. Even after that withdrawal, there were significant technical discussions at official levels with the groups' legal advisers. Throughout the process of amendments, the government publicly continued to express its willingness to discuss the draft legislation, and a number of matters raised by the National Indigenous Working Group and a number of matters raised by others on their behalf were incorporated into the legislation.

The Aboriginal and Torres Strait Islander Commission and the National Indigenous Working Group and other Indigenous organisations gave evidence to the Parliamentary Joint Committee on Native Title and the Land Fund's inquiry into the bill. The committee's majority report, which recommended that the Bill be supported with some possible amendments, was implemented but amendments proposed by that committee were also adopted. The Amendment Act includes a number of amendments proposed by Indigenous interests, for example, the provisions on agreements and others which were generally supported by Indigenous interests for example the provision of a proper statutory basis for representative bodies. The Native Title Amendment Act is an Act of the Commonwealth parliament. Australia notes that the general recommendation of this Committee concerning Indigenous Peoples, I think Paragraph 4d, places an obligation on States to ensure that members have equal rights, that Indigenous Peoples have equal rights in respect of effective participation in public life. In the process of the development of the Native Title Amendment Act Indigenous People in Australia did have that equal right. There was an extremely extensive public policy development process and an extremely extensive parliamentary process in which all these issues were discussed and debated. All the issues which are being raised in this forum were also raised in the public policy development process in Australia and in the parliamentary process with regard to the bill.

I note also that the CERD's general recommendation in Paragraph 4d goes on to say that no decisions directly relating to the rights of Indigenous People are to be taken without their informed consent. This is a higher level of responsibility, a higher level of obligation than simply providing equal rights. This is a requirement to provide for the informed consent of Native Title holders. Australia admits that the informed consent of Native Title holders and Indigenous Peoples was not obtained in the Native Title Amendment Act. Australia regrets this. As I said at the beginning on Friday, the government attempted to obtain a consensus with regard to the Act but despite a lengthy process, that consensus was not possible and in the end the parliament had to make the laws which it judged were appropriate. In this case, much of the Native Title Amendment Act is concerned with balancing rights, balancing rights of Native Title holders with pastoral lessees and others. As I also said on Friday there was no consent to these provisions neither from Indigenous People nor from pastoralists and miners. Australia regards this requirement essentially as aspirational and it tried to meet and aspire to this requirement but it admits honestly before this Committee that the requirement was not met.

My second last point. A number of questions were asked by Ms McDougall in relation to the relationship between the Native Title Act, the Native Title Amendment Act and the Racial Discrimination Act. The Racial Discrimination Act is Australia's implementation of CERD. In the 1993 Act, Section 7 provided that nothing in this Act affects the operation of the Racial Discrimination Act. As Ms McDougall correctly points out, this provision was discussed by the High Court in the case of Western Australian and the Commonwealth. It's important just to take a moment to realise that that discussion was in the context of a challenge by the Western Australian government that the Native Title Act was discriminatory in favour of Aboriginal people and therefore that the operation of that Section 7, that is, that it was to be read subject to the Racial Discrimination Act, meant that many of the benefits which the Act provided to Aboriginal people and Indigenous People were discriminatory and should not be provided. In the case however, the court looked at the relationship between the Racial Discrimination Act and the Native Title Act and this Section 7.

And, I think the court essentially said that the Native Title Act and the Racial Discrimination Act were two pieces of legislation by the one parliament, that they needed to be read together, that the Native Title Act provided specific rules and the Racial Discrimination Act provided general principles; that they were consistent but if there was any inconsistency, the specific rules in the Native Title Act would prevail over the general principles in the Racial Discrimination Act. As Ms McDougall says, there was an attempt to amend Section 7 in the process of developing the Amendment Act and there was an amendment which was passed, so that Section 7 now says that the Native Title Act is intended to be read and construed subject to the Racial Discrimination Act. In particular, that the Racial Discrimination Act applies to the performance of functions and the exercise of powers under the Native Title Act and that the Native Title Act is to be read and construed subject to the Native Title Act.

In the Commonwealth government's submission, Section 7 is a significant provision. But it does not mean that the Racial Discrimination Act provisions override the specific provisions of the Native Title Act. In the government's view, if the Native Title Act says that certain things can be done, then they can be done. And if it says that certain things can't be done, then they can't be done even though this might generally be inconsistent with the Racial Discrimination Act. So that what you need to do, and what the government's position is that you need to do, is you need to look at the specific provisions of the Native Title Act to see if they do in fact comply with CERD and with the Racial Discrimination Act. And that's in a sense what we've been doing. We've been working through the Native Title Amendment Act and looking at those provisions and working out whether they do comply with the Racial Discrimination Act and CERD. It's not possible and the government believes it's neither possible nor appropriate simply to rely on Section 7 of the Native Title Act to give the Racial Discrimination Act an overriding effect.

The last comment which Ms McDougall makes in relation to...no, sorry, I'll withdraw that. There are a number of other questions with regard to the Racial Discrimination Act which Ms McDougall makes and in response to those, I'll just make these general comments. I mentioned on Friday how Australia interprets its obligations under Articles 2 and 5 of CERD. In essence, these obligations require equality between racial groups. This equality can be achieved by formal equality and special measures, where appropriate, or at any rate, by substantive equality. Australia recognises that substantive equality requires the same treatment of things that are the same, and appropriately, different treatment of things that are different. However Australia also recognises that judgements need to be made as to whether things are the same or whether things are analogous, and if not, the appropriateness of different treatment. And that these judgements can only be made on a case by case basis...laying all the relevant circumstances. In determining whether particular provisions and particular acts and particular cases comply with CERD, it's important that the decisions regarding treatment not be arbitrary. In other words, they must have an objectively justifiable aim and proportionate means. To this end, an analysis of other States' practice or alternative means may be useful. This is how Australia interprets its obligations under CERD and I have taken the Committee through the key areas of the Native Title Amendment Act to demonstrate how it is, in Australia's view, that that Act does comply with these obligations under CERD.

Finally Ms McDougall suggests that in every case with regard to the Native Title Amendment Act discrimination is against Aboriginal claims and in favour of other interests. Australia does not agree with that assessment. Australia does agree that the balancing of the competing interests which the Wik decision gave rise to are difficult and complex matters. There are certainly provisions in the Act such as the validation provision if it would have been possible, Australia agrees to balance those in another way. That is, that there is room for judgment as to how the issue of past extinguishment and dispossession, and how the issue of actions on pastoral leases before the Wik decision should have been addressed. And, it is possible that they could have been addressed in a way which was more beneficial to Indigenous People than the way in which Australia has addressed them. But just because there are ways which could have been more beneficial does not in Australia's view make the ways that have been used racially discriminatory.

And, as to the comments that all the provisions in the Amendment Act are against Aboriginal claims, Australia does not agree with that statement. And by way of summary, I just mention again the beneficial provisions of the Native Title Act as amended by the Native Title Amendment Act. It allows for Native Title claims to be made over 79 percent of Australia. With regard to that 21 percent of Australia where there's been extinguishment of Native Title, even there it allows claims to be made when the relevant freehold or leasehold grants are no longer operative. So even in those areas, there is the possibility of restitution.

Further, the Land Fund exists, which enables Native Title holders to claim that bit of Australia which is able to be claimed. A significant portion of that has in fact been claimed in the processes established by the Act. There are over 880 claims currently going through those processes and there are claims over approximately 50 percent of Australia. The Act establishes representative bodies to assist these Native Title claimants to make those claims and to assist those Native Title claimants to reach agreements with miners, pastoralists, and governments. The Commonwealth government - through the Aboriginal and Torres Strait Islander Commission - funds those representative bodies. The claims process puts a significant emphasis on mediation rather than adversarial litigation. The Act establishes a specialist body, the National Native Title Tribunal, to be the mediator in those processes and the Commonwealth government funds that body to mediate claims and to help assist with agreement-making between Native Title holders and others.

As I've said a number of times, the Amendment Act contains specific, significant new provisions in relation to agreements because the Commonwealth government sees consensual agreements between Native Title holders and claimants on the one hand, and miners, farmers, pastoralists and government's on the other hand, as the way forward for Native Title issues in Australia. The Act protects Native Title from extinguishment by the activities of pastoral lessees and prohibits the upgrade of those pastoral leases in a way which would extinguish Native Title. The Act provides access rights to Native Title holders where they have a registered claim for pastoral leases.

In relation to a range of future acts, the Act provides significant notification and objection and consultation rights to Native Title holders. The Act provides compensation for Native Title holders for future acts which affects their rights and within the claims for compensation process, consideration can be given, and indeed in some cases has to be given of that compensation taking a non-monetary form and taking the form of land. The Act provides that in future, there is to be no more extinguishment of Native Title in Australia except either by the agreement of the Native Title holders or by a wholly non-discriminatory, compulsory acquisition process. The Act maintains the Right to Negotiate in many cases but as I've said, where it allows for the removal of that full Right to Negotiate in relation to mining and compulsory acquisition, it nonetheless gives specific rights to Native Title holders which protects their interests.

Further, the Right to Negotiate continues to exist not just for people who have a determination from the court that they hold Native Title. It is recognition that Australia has come to Native Title issues quite lately - and it's only since 1992 that the concept of Native Title has existed in Australia. These Right to Negotiate processes and all the other processes in the Native Title Act are also available to registered claimants, that is, to people who have a credible or bona fide claim even though that claim has not yet been determined. Thank you very much for listening to this presentation. I apologise for the detail which it has involved and I hope that hasn't confused people but again, we are more than happy to answer further questions acknowledging that the legislation unfortunately is detailed and complex. Thank you.

Mr Chairman: I thank the Deletion for answering Ms McDougall's points. But I don't know...maybe the other points also which were raised by other members of the Committee might deserve also equal attention because they are …. well, maybe you answered them yesterday but it is …. as you know, you have referred to Ms McDougall's paper: Ms McDougall doesn't have a paper; Ms McDougall made a statement as a country rapporteur to comment on the report to Australia, but there is no paper from Ms McDougall.

So I was wondering that maybe you answered yesterday some of points which were raised in the general remarks after the discussion but anyway if you still remember some of the points which were raised yesterday, I'd appreciate you give them equal attention also to those points which were raised by Mr Diaconu, Mr Banton, Mr Yutzis, Mr Lechuga Hevia , Mr Luis Valencia Rodriguez. All these points were valid with equal importance. Now maybe I'll give you the floor after, if there are further comments and then you can answer the whole lot together. I have two on my list of speakers now and I'd prefer giving them the floor and then you might comment also on the other comments which were raised by other members of the Committee. Mr Van Boven is the first speaker on my list to be followed by Mr Luis Valencia Rodriguez.

Mr Van Boven: Mr Chairman, I hesitated to take the floor because I was absent on Friday much to my regret but this was unavoidable and I think that I'm not in the best position to take the floor. However Mr Chairman, there are still some questions in my mind and also taking into account the statement just made by the representative of Australia and I thank him very much. I thank him and his government for responding to our decision but he made a number of points on which I'd like to have further clarification. Let me first say Mr Chairman that I find the issues which are being discussed rather complex. Coming myself not from a Common Law country but from a civil law country, this is an additional complexity and Mr Chairman sometimes I get the impression that this debate has reached very high levels of legal expertise and legal debate but that certain factual issues that are basic are not fully clear.

I realise also that there is a certain conflict of values and traditions and cultures. There is this European, western set of values particularly legalised in a way and that attaches a great deal of importance to certainty. I remember visiting a Latin American country and it was nearly empty but to create certainty fences were constructed all around. Fences in an empty land but to create certainty. So I understand that these amendments which were adopted last year were also intended to create more certainty. At the same time, the exclusiveness of property is of course also related to certainty whereas I think other peoples have different type of life and common life, common use instead of exclusive use but anyway, this is just a point.

I wanted to raise four points Mr Chairman. First of all I said a moment ago that we are somewhat in doubt about the actual effects of this new legislation. And now, we learn in the statement of the representative of Australia that 79 percent of the lands, of the territory of Australia is still subject to Native Titles, potentially and where Native Titles have been extinguished for 21 percent. Could I be informed what this 79 percent of the territory is in fact? I know that for instance in other countries where settlers came, they acquired the possession, of the property of, let's say the best lands. And the boring lands were left to the others. I refer to South Africa, to former Rhodesia and to other countries in Latin America. So I would be interested to know how this 79 percent to the 21 percent relate to each other in terms of the quality of land. I could be the owner of a mountain and that's interesting for many points of view but not for the question of income raising.

Second question Mr Chairman. The representative of Australia tried to answer Ms McDougall's questions and I'm sorry that I was not able to read all she has presented but I'm deeply impressed by her presentation. But the question of equality and often the difference is made between formal equality and substantive equality and also our committee dealt with that in general recommendation 14 and in fact it also in Article 1 Paragraph 4 and Article 2 Paragraph 2 makes reference to special measures in favour of disadvantaged groups, disadvantaged persons. Now, Mr Chairman, the representative from Australia came up with a very sophisticated legalistic definition: it recognises substantive equality but also equal cases should be treated equally. My question is and I would have liked in fact if the government would have made an explicit recognition and acknowledgement that the Aboriginals have been marginalised and disadvantaged over the years and over the decades and over the centuries. And that their rights and their entitlements should be recognised in that light, in that perspective. So we can raise a smokescreen of definitions but we have to relate it to people. That has been, I think, the people's approach has been lacking in the presentations because we legalise it to such an extent that it reaches a high level of sophistication but when we deal with human rights after all and issues of discrimination, it relates to people and that should have been more explicitly stated.

Now a third comment I want to make, Mr Chairman, that in our general recommendation 23, we referred to the informed consent, we said on two or three occasions in Paragraph 4D and Paragraph 5. We learnt that unfortunately, as the representatives said, this informed consent could not be obtained and that consensus was not possible and that there has been an extensive parliamentary process and a policy development process. I wonder what is the role of the Indigenous Aboriginal interests and people in these processes. Finally, it was said that this requirement of informed consent is only aspirational. Now it is not understood by this committee in that sense. I think there we tend to disagree.

My last point, Mr Chairman, I noted with great interest at a certain point that the representative of Australia said that there are two main objectives of these amendments: to facilitate the restitution of native lands and also the prevention of further extinction on Native Titles. I think that is very laudable. But could I receive further information. What means actually the facilitation of restitution because when I understood it correctly, it was said that facilities are made that the Aboriginal people can buy these lands so that they be restituted. Now we have in our Dutch language, we have an expression, to buy a cigar from your own box. That means that you have something and you are still to buy it. And that is the question. What is the notion of restitution. Restitution means that you are entitled to something at least that is what I made a study on reparation in international law and gross violation of human rights. Now restitution is, as I see it, something which you are entitled to is returned to you. You don't have to buy it but it is returned to you. Do I understand it correctly that that is the notion of restitution as it was used because in fact I have not seen the word restitution as far as I remember in the written submission by the government but since it was used by the representative of Australia I would like to get some clarification on this issue. Thank you sir.

Chairman: Thank you very much Mr Van Boven. I would like to make some points in my personal capacity. I did not participate in the debate yet but I would like to say that I associate myself 100% with every remark which was made by Mr van Boven. It is not after listening to him that I'm happy these points were raised. During the discussion I noted, and it is amazing, the same points that he raised. I would like to elaborate for two minutes on this. Let me say that it became very monotonous to have that very legal discussion in this committee. Not only when we were discussing the report of Australia but other reports. We just talk about articles and legal definitions and twist words and the general public, or the lay man or the ordinary man, is not able to follow this discussion. I am a lawyer myself and I can often speak the same language to defend and to present my point of view but this is not what this committee, we have said it again and I say it again today, this is not a court of law. We are discussing, we are having a dialogue, we are exchanging views and we hope that we can achieve some good results as a result of this.

The representative of Australia referred to the fact that the government was under great pressure not to allow or to go ahead with certain reforms. I have not been told pressure by who? Of course it is pressure maybe by the farmers as I was told. It's pressure from the right people. How about the pressure from the Indigenous population? Was there no pressure? We receive so many documentations and they have been doing their best to present a case and I think they did. They did a marvellous job in my opinion presenting their point of view. But was what they have been trying to do or to say or to communicate with the government taken ever into consideration? We were told that consultations took place. Alright, the first point that you were under pressure. By who? Consultations took place. Wonderful. That proves that the government is doing a wonderful job. We were told about equal rights. There was no spelling out of which rights we are talking about. Can the government say that there are equal rights on every human right which exists - all five of them - social, political, etc. All the five sets of rights?

Mr Van Boven spoke about substantive rights and I'm not going to elaborate on this. Then we were told that we were not able to achieve consensus. So? The parliament acted. That means what in lay man's words? That the point of view of the Indigenous population was not accepted? No consensus was achieved. So the parliament which is the white man again took the matter into hand and they decided and they imposed on the indigenous people, so what consensus resulted? You put it in such a way in a legal way as a good lawyer but as someone who's working in the field of human rights the conclusion that I achieve is that the Indigenous population's point of view is not taken into consideration. The pressure was not felt. Consultation with them did not achieve anything, of course, why should it achieve anything? Equal rights were mentioned. Few rights and not all rights we were not told about that. Consensus was not achieved so parliament imposed whatever they want to impose. I must say that this is a little bit of an alarming picture. Leaving aside the legal definition and presentation which was done, I must say, I congratulate you on doing this.

From a legal point of view it did sound But I'm not listening to this as much as I'm listening also to the fact behind what we were told. I'm sorry if I spoke so much but I did not speak on this question yesterday in my personal capacity. Now I resume my functions as Chairman of the committee and my next speaker and let me read my list of speakers as I have it now, Mr Valencia Rodriguez, Mr Agha Shahi, Mr de Gouttes, Mr Yutzis. And now I give the floor to Mr Valencia Rodriguez.

Mr Valencia Rodriguez: Mr Chairman from my part I also wish to thank the delegation for the goodwill they have demonstrated and the full, frank and exhausted answers to the questions asked by members of the committees. Those answers without any doubt help us to understand the position assumed by the government of Australia on this very sensitive subject of such vast scope. I should like to ask a question in two complimentary parts because I think that these aspects have not been dealt with by the distinguished delegation of Australia. I have no doubt that the delegation is aware of the strong opposition that exists with the regime adopted by Australia considered as discriminatory opposition that has been demonstrated not only among the Aboriginal population but even in different political parties in the country. So my question is to check whether in view of the opposition I've spoken there is any possibility of the government of Australia being able to reconsider the situation with a view to a later reform and if the government is ready to do so could it promote new consultations with sectors of Australian society, particularly the Aboriginal peoples so as to find a national consensus on a possible reform in this important area in an awareness of the fact that despite the difficulty of these consultations they would represent the only way towards a satisfactory resolution. Thank you sir.