Chairman: Thank you very much Mr Valencia Rodriguez. Mr Agha Shahi.

Mr Agha Shahi: Mr Chairman, I would like to express my appreciation for the prompt response of the Australian government to our request for additional information when we took our decision 1 in our 53rd session last August. The Australian people, of course this has become a very complex legal subject, but nevertheless the report submitted by Australia in response to our decision clearly sets forth the existing legal situation as a result of the NTA Amendment Act of 1998. I will raise only two questions, Mr Chairman. The first is that the effect of the Amendment Act is to turn over the general Federal Government's jurisdiction over pastoral and other leases and a host of other matters I think about registration etc to the state's and the territory's administration. Although the Australian report talks about the consistency, because we'll all be subject to the Native Title's Amendment Act, but it would seem to me that the different states and territories of Australia could take very different kinds of decisions and there would be no coherent jurisprudence dealing with the Land Rights and the pastoral rights or the acquisition of lands for public purposes by Australian government. It seems it will be very difficult to ensure uniformity of policies consistent with the obligations of Australia under our convention. That is the first point, Mr Chairman.

The second point is the question of the relationship of the Racial Discrimination Act to the Native Title's Amendment Act of 1998, particularly in view of the division of Section 7 to the old NTA. Now if I may draw the attention, of course, the distinguished representation of Australia has given us a very clear ee' and I would like to express my sincere thanks for clarifying this subject but I should like of course, many of the analysis of Ms McDougall, the country's special rapporteur was masterly and she has raised most of the points but nevertheless I think it's important that there should be a clarification of the relationship between the Racial Discrimination Act of 1975 and the Native Title Act as amended. To what extent does it erode from the provisions of the Racial Discrimination Act? And in this regard, Mr Chairman, I would like to invite the attention of Mr Orr to the following statements submitted in documentation submitted to us by the acting Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission. This is on page 8 Paragraph 32 and also there is another reference to this relationship in the ANTaR document on page 15.

Let me take up the ANTaR document first. On page 15 it is stated: 'The 1998 amendments have altered the nature of the Native Title Act for convention purposes.' That is this affects our Convention. 'Later more specific discriminatory standards in the amended Native Title Act are inconsistent with the general non-discriminatory standards in the Racial Discrimination Act. those standards as they apply to Native Title.' In parenthesis it is stated (But allowing them to continue to operate in other areas, for example, discrimination in employment or housing.) Then it goes on to state again 'This conclusion flows from the amended Native Title Act as a whole. The amended Section 7 does not alter the situation' So it goes on to this extent and then in the part of the commissioner Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, it is stated on page 8 that although the Act is intended to be read and construed subject to the provisions of Racial Discrimination Act 1975 but this is limited by the following sub-section and it goes on to state in third part with reference to Section 7, the third clause: 'Subsections one and two do not affect the validation of past acts or intermediate periods Acts in accordance with this Act'.

So as amended, Section 7 does not ensure the protection of Native Title by the general standards of equality and non-discrimination. I'm sorry to have taken so long to quote this, Mr Chairman, but I thought this was a very complex subject and the legalistic approach demands a high degree of precision so I thought it best to read these statements out and I would like to explain to us the extent of degradation from the Racial Discrimination Act of 1975 resulting from the amended national Native Titles Act. Finally, Mr Chairman, I shall stop at this point and I'd be grateful for this clarification. Thank you.

Chairman: Thank you very much. The next speaker is Mr de Gouttes.

Mr de Gouttes: Thank you Mr Chairman. I have listened with a great deal of interest to the explanations provided by the Australian delegation and like Mr van Boven, I was very sorry that I was not able to participate in the discussions on Friday. This is all the more a source of regret to me because I myself like other members received a abundant information which drew my attention to the very difficult and often very complex problems encountered by the Aborigines with respect to Native Title. Not having heard, unfortunately, the initial presentation by the delegation, and also not having heard the introductory statement made by Ms McDougall which I've just read through in its written form with great interest, I would like to make a general comment.

Above and beyond the very technical aspects which has been dealt with at length by the delegation. When we read the conclusions presented by our committee concerning the previous periodic report in August 1994, I think one can see that our committee was generally in favour of the Australian report - we praised it, we said that in particular we had noted with satisfaction the many measures taken in Australia since Confederation that the previous reports aimed at improving the relations between the various groups in the country and to improve the situation of Aborigines. We said in those conclusions that the decision taken by the High Court in the Mabo case versus Queensland represented substantial progress and that the wishes shown by the government to set an example in this area, the area of action to be taken to assist the Aborigines was a source of great satisfaction to us. So our conclusions were positive in general so my question today is what has happened to all of this praise that was expressed by our committee?

Why in the space of five years have we gone from a situation which we described as exemplary to a situation which is fraught with conflict? How can we explain such a deterioration in the situation in the relations between the government and the Aborigines. Definitely I think behind these changes in legislation, there is some indication of a basic and significant change in political circles, in parliament, even in public opinion probably. You have said yourself, Mr Chairman, that pressure was brought to bear. The delegation talked about it. Some pressure was exerted. We'd like to know what sort of pressure you're talking about. I think in particular the delegation should be more frank and honest with us about the political context of the sweeping changes that have been occurring over the past five years. More, though, Mr Chairman, I know it when one reads carefully our concluding observations of 1994, one sees that our committee had anticipated to some extent the potential difficulties that we are confronted with today because when we talk about our subjects of concern that section of the concluding observations, we noted that in particular, and this problem is still unresolved, that the legal procedures which are applicable to recognise the Native Title of the Aborigines and to respond to land claims were too lengthy.

We said this in 1994 that it was necessary for those concerned to prove that they had maintained their links with the land that they were claiming and that this was excessive. This was an excessive requirement. We said that the fact that people identified as being Aborigines but whose ancestors were basically non-native might be considered to be native in terms of recognition of their Land Rights and that this could be a source of concern. A very small segment of the population we said the Aborigine population would thus be able to benefit from the Native Title Act. So we had already sensed in 1994 potential difficulties which might arise and today my impression is that the delegation of Australia has not allayed our concerns. It has not dispelled our worries we expressed already in 1994. Nor has it dealt with those we have found this time around. We have a lot of doubts. And my final question which I wanted to ask has already been asked by Mr Valencia Rodriguez that is what does the Australian government have to tell us today.

Is it possible for the government to think of changing or overturning the legislation that we're talking about today? Could the government think of moving towards a different type of legislation which would have been more dealt with in consultation with the Aboriginal population. This was raised by Mr Valencia Rodriguez and I just second that point. Thank you very much.

Chairman: Thank you. Mr Yutzis and I want to apologise I didn't see him when he raised his hand the first time. Mr Yutzis you have the floor.

Mr Yutzis: Thank you, Mr Chairman. As you said in your personal statement I am among those who feel that some of the questions that have been asked were not answered. And so, I'm going to ask some of the questions, I'm going to go back to some of the points that I very briefly raised in Friday's meeting and I'm also going to make some general comments as a kind of intuitive reply to some of the questions raised by the distinguished representative of Australia. Yes, I have to recognise sir, obviously, that the issue is a very complex one. And I am not a lawyer. I don't know Anglo-Saxon law and Common Law. I'm not familiar with it and I come from a country that has Roman or civil law so I have a very considerable legal and cultural distance from all this. But I accept the challenge of being involved in working on these legal issues. And I think that the committee is also going to accept that challenge and from my point I would like to say I will make a very big effort to understand as much as I possibly can of these intricate legal findings.

I also feel this issue will continue to be a matter of concern for the committee not only because the committee is clearly worried by the issue but because it is a concern of the people in the government of Australia and it will continue to be debated. There's no doubt. So the fact that this continues to be a concern of the committee is not simply because we want it that way. That is the way this issue will be developing. A comment first, and I beg you not to think of it merely as a rhetorical question, though it's not necessary for me to have an immediate reply either. That distinguished representative of Australia in his statement and his reply today said categorically that the Indigenous communities and representatives had not given informed consent to the issues. This was of great weight.

I want to say sir that I'm not surprised at this. I'm not surprised first because or the very history of the Indigenous Peoples. Mr van Boven raised some points in this regard. It is connected with the context. As a result of history, this is a requirement that cannot be met. I beg you not to think of this as a demagogical criteria or a rhetorical question. The very existence of the Indigenous People perhaps limits one's possibility of having over time all the necessary resources - intellectual, professional, economic or power resources - to be able to reply to certain requirements. I have spoken of the little children disappeared...but in addition, sir and I go back to this point. In Paragraph 28 and 29 of the report, particularly in 29, it is maintained that the representative bodies of Aborigines and Torres Strait Islanders lacked explicit powers and functions and their accountability regime was not in line with the importance of their intended role so I'm not surprised either that they did not provide the informed consent.

Perhaps that is why the distinguished representative of the delegation of Australia did not refer to paragraphs 34 and 35 which speak of the registration test which I think is very important. These are requirements, very rigorous requirements, and I cannot see in this report imposed on the other party in the conflict. We see those imposed on one side but not on the other. Now sir, I have three questions. The first is connected with the fact that the amendments of 94-96 refer to intermediate period. It's interesting that the distinguished representative of Australia often when he referred to legislation or events in the past said that one should not become bogged down and too rigid about the past but this doesn't apply to this intermediate period Act. He spoke at length about the validation of the past. Why then in some cases is the past not to become ossified and in other cases it should? Another question, sir. I would be very glad to have an answer now to this.

The distinguished representative of Australia said that title would be restituted to Indigenous groups when the concessions had been extinguished. At another point in his statement, he said something else. He said when the exploitation or use of the land is terminated I very much want to know about this nuance, whether the titles are restored when the concession ceases to exist and what regulates this cessation of concessions or is it when the exploitation is completed. I hope my questions have been understood. My last question is one that I asked on Friday and it was not answered by the distinguished representative of Australia. It is connected with the existence of a formal position of the Commissioner on Social Justice for Aborigines and Torres Strait Islanders. The information I possess is that there has been a reduction in the budget for that position and it is going to be replaced by a parliamentary official and if I understood correctly, I understood that this post was going to be terminated. I'd like an explanation for the reasons that have lead to this post being changed or losing its jurisdiction of power at the present time. Thank you.

Chairman: The next speaker on the list is Ms Sadiq Ali. You have the floor.

Ms Sadiq Ali: Mr Speaker sir, we have heard both sides of the argument and we have a clearer picture before us but still the situation is very complex and I was wondering if our special rapporteur could make a visit to Australia to study the situation and to report back to us what is the truth behind all these complicated issues. This is my submission sir and it is for you and for the Australian High Commission since the previous representative has not been there and he will not be there till the end of the year, it is very long for an issue like this to be studied. So my request is that Ms McDougall be invited to Australia to study this situation in depth and report back to us. Thank you very much.

Chairman: Thank you very much. Ms Sadiq Ali was the last speaker among the members. Ms McDougall would you like to ask a question now because you will have the floor as the last speaker.

Ms McDougall: Thank you Mr Chairman. It's a very quick question and I think it would help to get the answer rather than later. The representative of the Australian government mentioned that in certain cases where there has been some validation that does not extinguish and I think he specifically mentioned mining, leases etc. that when that use comes to an end, there is potential for the Native Title to revert or be reestablished. Can you tell me what the common length of a mining lease is? How many years? I know you can't be precise but in general are we talking about a lease that would run its course in five years, ten years? What's the common length?

Chairman: Thank you very much. I think it's time now to hear the comments and answers from the Australian delegation and then we will hear Ms McDougall.

Delegation: Thank you Mr Chairman. I'd like to address some of the points that have been raised initially particularly those raised by the distinguished Chair of the Committee, Mr Abdul-Nasr. I'm advised by the acting chair that we have to do this in half an hour. Sir, you I felt had indicated to us that we should have been more full in our response earlier in this morning's session to answer questions asked of those asked not just by the country rapporteur.

We're conscious of the time limits of the committee. We are available to stay longer into this afternoon if that will help the committee but we were conscious of the time limits and we tried very hard to answer Ms McDougall's questions but in such a way that we tried to answer all the questions because there was some overlap. If that was insufficiently well done then we apologise and we will take whatever time is necessary to fully answer any question put to us and all of those that were put to us yesterday as well. So my regret on that point but we have been trying to work within the committee's limitations.

The second point is that Mr van Boven made a point and I think Mr Abdul-Nasr you associated yourself with that comment that there seemed to be insufficient acknowledgement on the part of the delegation for the past injustices which have brought us to this point of the legislation that we're now addressing. Can I say that from my perspective as the leader of this delegation, the reason that we did not address those in greater detail is that my understanding is that this is not the first time that these issues have been addressed by this committee. I believe in previous presentations including in our past periodic report that this issue was dealt with in great length in terms of an acknowledgement that there has been terrible past injustice which has led to dispossession and all the other social and economic consequences that have flowed from that dispossession. I had thought that was on the record. I should also say that it is something that has been acknowledged in our courts, in our parliaments, at every level in Australian society.

I also think that my distinguished colleague yesterday in his presentation did mention that it was a tragic history, a tragic dispossession. I think that word was used. If, however, I have misunderstood the brief that we should have brought here and if for some reason we should have made a more elaborate statement along those lines then please consider it the fault of this delegation, not of the government because I think the government has made those statements on the record. So please accept my apologies for that.

The third point was Mr Chairman you indicated that although you appreciated the detail of our response, you felt that it was a monotonous legal discussion and I can share that perspective but I sense it's a difficulty because we're dealing with this issue at two levels and one of the distinguished committee members requested more frankness on the part of this delegation. Frankly there is a legal perspective and there is a political perspective. We came prepared to deal with these issues at whatever level they were addressed. We were faced with a very learned, thoughtful, detailed legal eition with questions form the country rapporteur which I think from our point of view really did merit an appropriate response and an appropriate response was to answer the questions at the legal level because that's the way they were put to us.

If we've misunderstood the way in which the committee would like us to respond then again it's the fault of this delegation, not of my government because my government is happy to respond on whatever level and maybe we can redress some of those mistakes in the time that's remaining but we did feel that, particularly given the terms of the decision and the specific questions that were put to us about the legislation, we felt it appropriate to answer the questions in the sort of detail that we did answer in.

To deal with an issue of substance now, Mr Chairman, you indicated your question placed on the Australian government and you're wondering was this pressure just from one quarter, did the government not feel pressure from the other side. Is that the cause for the problems that I think some of you perceive with the legislation?

Can I just explain what my distinguished colleague was indicating. When he talked about the pressure for extinguishment he was saying that the government was under pressure from rural interests, from land owners, from a large sector of the normal Australian society to deal with the problem that was raised by the Wik decision which suddenly threw doubt into the minds of many people their ownership of the land or their interests in the land that they'd been farming in some cases for many generations. The response from some quarters of society was the simple way to deal with this was to extinguish the interest of our Native Title holders on that land. In other words, to reestablish the situation that everyone virtually had understood to apply following the Mabo decision. That is that on lease hold land, on the farms which cover large parts of Australia, there was no Native Title.

At the time of the last periodic report, Mr Chairman, that was the situation we presented to you and I think it was that situation which this committee found acceptable at the time in the circumstances and I think there was quite a positive response to that report. That was the situation that many people in Australia wanted this legislation to bring about. In other words to put the situation back where it was when last time we spoke to you about this matter. The Australian government was under that pressure but the Australian government responded differently. It felt no, the Wik decision has taken place. The judges are telling us now that, notwithstanding the fact that we thought that there was no Native Title on large parts of Australia, in fact there is Native Title. It coexists together with the rights of the pastoral lessees. And the Australian government therefore after a long period of consultation and a political process which I have to say, I think it was in my personal view an unprecedented debate in Australian. I should say that the last election was fought at least partly on the issues we're discussing here. So it was far from something that was decided by a small group of politicians in a room in parliament house. It was something which was very much a part of the fabric of social debate for a very long period of time.

And I think that the government declined to respond to the pressure for extinguishment and chose instead to strike what it felt was a compromise. I think that almost everyone will agree that it was an imperfect compromise in that it seems to have satisfied no one. It seein??? and it's a situation that we bring before you know. I think so in terms of the question of what sort of pressure was being felt, I think it is wrong to assume that pressure was being felt just from one side. Because if that was the case as my colleagues said we would have had a different result. We would be facing now a situation where Native Title would have been extinguished on large parts of Australia. Now that wasn't done. The compromise that was struck still did not satisfy Indigenous People and this delegation acknowledges that there is still a live debate out there about whether the compromise that was struck was the appropriate one or whether a different result should have been brought about.

Speaking as a representative of my government, I can say that the government did address this very seriously. I think that's an understatement. It did seek to reach a compromise because in a representative democracy it was in the interests of the government to try and satisfy everyone. And I should say that, Mr Chairman, when you said that was it just a case of white parliamentarians making a decision, it's true that our parliament is overwhelmingly white but it's also true that many parliamentarians from all parties in the Australian government and in Australian opposition have a very strong feeling of social justice and I think many of them, notwithstanding the fact that they're not Indigenous, really I think worried about this result and many of them continue to worry about it. Whether in the end the government got it right or wrong is a matter for the Australian people to judge and it's a matter of course for you also to judge in terms of our obligations under the international convention. But I am trying to impress upon you that this was something which was the result of an incredibly detailed and complex legal process. In today's papers today in Australia these issues are still being discussed. We are in the process now of redrafting our constitution in Australia in time for the centenary of our federation in 2001.

These issues are live issues to be debated even in that context. So it is a process that's ongoing and one that I think would be difficult for any Australian government to deal with. But I just want to impress upon you that if we gave the impression that somehow this had been a one-sided process or one where a decision had been taken in haste or as a result of pressure from just one side, then again, my regrets because that would be an inaccurate description of the situation that obtained. Those are the points I wanted to make in direct response to some of the things that were said. There were many other questions I know which are of more important substance and some of substantial and would now, with your permission, Mr Chairman, defer to my colleague Mr Orr to attempt to address those in the time available. Thank you.

Mr Orr: Thank you very much Mr Acting Chairman. I'll try and address the questions that have been raised. As I said in the presentation I was making earlier, although I was addressing specifically issues raised by Ms McDougall, I was also trying to pick up the other questions which were raised on Friday. I apologise to those people whose questions I didn't get to. Perhaps I might just try in the brief period of time left, to deal with some of the matters which have been raised this morning.

Mr Van Boven asked four questions. One of them was about the area land that we're talking about. I've mentioned on a number of occasions and he correctly summarised this, that in the government's assessment, 79% of Australia, is able to be claimed by Native Title holders at the moment. That leaves 21% where in the view of the government, Native Title has been extinguished. He's right to say that that 21% are the more settled and richer areas of the country. That is, Australia is essentially settled on the eastern sea board and much of that land, the 21% that we're talking about, is on that eastern seaboard. Much of the 79% is in more remoter areas. In particular, in Western Australia, which is a very large state in Australian on the western seaboard of Australia, there's a very large area unclaimed. I can give the figures to Mr Van Boven if he likes, I can give him a summary of the figures but he's right in saying that when we talk about 79% of Australia being able to be claimed. That is mostly in remoter, less developed areas. That's correct.

The second question from Mr van Boven I think my colleague answered and that is that he would have liked a more explicit recognition that Indigenous People in Australia have been marginalised and disadvantaged. Australia gives that explicit and express recognition. In my opening remarks on Friday, I did recognise the dispossession of Australia's Indigenous People over much of the country, the extinguishment of many of their rights and I noted that in the Mabo decision itself the judges there stated that the dispossession of Australia's Indigenous People and the extinguishment of their rights has underwritten the development of the nation. And that is a comment made by the judges and I think a comment endorsed by the government.

The third question was about the issue of informed consent and I discussed that in my presentation. Australia acknowledges that there was not informed consent by Australia's Indigenous People to the Native Title Amendment Act. As I've said on Friday and today the government attempted to obtain consensus amongst all stake holders but in particular amongst Indigenous People during its process of developing the Act but this was not possible. The government did, however, meet with all stake holders including Indigenous representatives and it met with those representatives many times including as I said on a number of occasions the Prime Minister met with those representatives. The process as we've indicated, of developing the policy was open. The government published its proposals, it sought and considered comments from everybody including significant comments from Indigenous representatives and their supporters, there was extensive parliamentary debate indeed following on from what my colleague has said. The debate on this Act was the longest debate that has ever occurred in the Australian parliament. So it was a matter taken very seriously.

In addition, as I've mentioned a number of times in my presentation, the government accepted a large number of amendments to its original bill and many of those amendments were proposed by the opposition parties or by people who were putting forward the views of Indigenous representatives. As I said, the process of developing the Act did not in the end meet the concerns of Indigenous representatives. Their informed consent was not obtained but nor was the informed consent of other people whose interests were affected.

The issue of restitution was mentioned. That is, we're talking about here the 21% of land which where Native Title has been extinguished. And to some extent, the land where there are coexisting rights. I mentioned this occurs in two ways. The first way is through the Land Fund and this is where we had the discussion of Aboriginal people buying back their land.

As I mentioned in my presentation on Friday and perhaps today as well, the government has established a Land Fund, and an Indigenous Land Corporation. This is an organisation established by the government but funded by the government. So it's the taxpayers of Australia who are putting the money into this fund. These funds are made available to the Indigenous Land Corporation which is an Indigenous body in order to purchase land which is of particular significance to them so in a sense it's not Indigenous People buying back their own land, it's the government providing money to Indigenous People in order for them to purchase the land. As I said that fund will grow to a guaranteed capital base of 1.3 billion and there will be money available for those purposes in perpetuity. The other way of restitution is as I've said provisions in the Native Title Amendment Act which allow lands to be claimed by Native Title holders notwithstanding extinguishment as a matter of law of their rights in relation to that land. I might come back to that because I know there was another issue there. The Chairman made some comments about somewhat legal discussion and I also apologise for that to some extent except that the question which the committee asked Australia was to come and explain the Native Title Amendment Act. That Act unfortunately is a complex legal document. The issues it raises are complex legal questions and in order to properly explain those provisions, a high measure of legal analysis is necessary.

Mr Valencia Rodriguez asked about whether there could be some reconsideration of the petition with regard to the Native Title Amendment Act. I must say from the government's point of view, that it, as the government, is not at the moment reconsidering that Act. However, there is a Parliamentary Joint Committee on Native Title and the Land Fund whose job it is to constantly review the provisions of that Act and that committee is continuing to do that. I think Mr Agha Shahi made some comments about the relationship between the Commonwealth and the States in Australia and suggested that the large number of matters under this Native Title Act were being given to the states and wouldn't this result in different policies and inconsistencies.

A number of points can be made but briefly in response, Australia is a Federation. There are governments at State and Territory level and then there's the government at the Commonwealth level. Responsibilities are divided between those two levels of government. States and Territories have traditionally been responsible for land matters and this is a land matter so one of the many criticisms of the Native Title Act itself in 1993 was that the Commonwealth was taking to itself too much power with regard to land and in particular taking too much power in protecting Native Title rights. This Native Title Amendment Act adjusts the balance it is true between the Commonwealth and the States. It allows a number of matters to be dealt with by the States rather than having them dealt with at the national level but it does so by setting specific standards that the States must maintain when they take over these issues.

So you'll remember that on a number of occasions we've talked about the Right to Negotiate which is a process for granting mining rights. Those mining rights in Australia have always been granted by the States. The Native Title Act imposed a Commonwealth process on top of that State process in 1993 to protect Native Title interests. What this Amendment Act does is allow those processes now to go back to the States but providing very strict criteria are met.

So I think in summary the answer to your question is yes, the Act does allow for more things to be dealt with at the State level but to the question won't that result in different policies and different standards the answer is no. Matters will be dealt with at the State level but in accordance with standards set at the national level. I think Mr Agha Shahi also asked the question about the relationship between the Racial Discrimination Act and the Native Title Act. Again this is a difficult question, and I think that to a large measure, the Commonwealth agrees with the comments which I think you read from, from the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner. The Native Title Act stands on its own and in order to assess whether it complies with Australia's obligations under CERD, you need to look at the provisions of the Native Title Act. Under Commonwealth law in Australia, if those provisions are inconsistent with CERD, they will not be rendered inoperative simply by operation of Australian domestic law.

So while Section 7 in the Native Title Act aspires and provides that the Native Title Act is to be read in accordance with the Racial Discrimination Act and states that discretions have to be exercised in accordance with the Racial Discrimination Act, if there is something which is inconsistent between the Native Title Act and the Racial Discrimination Act, those provisions will still operate. Quite technical, I know, but the position that the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner gets to is that one can't just stop at Section 7 of the Native Title Act and say 'Oh this says it's subject to the Racial Discrimination Act, therefore anything in this Act is inconsistent with the Racial Discrimination Act is inoperative and doesn't operate and therefore the Native Title Act is of itself by definition consistent with the Racial Discrimination Act'. That's not the position of the Section. What you have to do is you have to go and look at the specific provisions of the Native Title Act and the government in Australia and this committee has to assess whether it thinks they're consistent. I hope that's been a helpful response.

Mr de Gouttes asked a number of questions about the situation changing from the earlier report of Australia to today and there has been significant changes. There have been significant changes in the relationship between the government and Indigenous People. He asked about the pressure exerted on the governments and my colleague has answered those questions and I simply reaffirm what he said. In very summary terms, this is the position. The Wik decision said that pastoral and Native Title can coexist. Indigenous People of Australia can have significant rights to pastoral lease land. This result was a shock to many people in Australia. In particular, pastoral lessees and people in the agricultural sector. They said that this was inappropriate and not in accordance with what the 1993 Native Title Act provided and therefore Native Title should now be extinguished on pastoral lease land - that is the 40% of Australia which is subject to pastoral lease land. Native Title should now by operation of this Act, be extinguished. So there is no Native Title on that land.

The point I was making and my colleague also made was the government resisted that pressure. The government took the view that to take that step and extinguish Native Title on pastoral lease land after the Wik decision would have breached Australia's obligations under CERD and therefore it would not take the step notwithstanding that there was significant pressure from the community for it to do that and it was simply just an acknowledgement of that position. Mr Yutzis made some comments and asked some questions and I apologise for not answering the questions that were asked on Friday.

With regard to the role of the representative bodies, I make this comment. Representative bodies are organisations established under the Native Title Act and funded by the Commonwealth government through the Aboriginal and Torres Strait Islander Commission to assist Native Title claimants, to assist them both to make claims and to reach agreements. In the Native Title Act of 1993, there was a very small number of provisions about representative bodies. It was very skeletal, very minor. What's happened in the Amendment Act is there's been a much more developed set of provisions with regard to those representative bodies and its hoped by the government and by the representative bodies that these provisions will enable those bodies to better do their job, a very demanding job, of assisting Native Title holders make their claims, of assisting them in the Right to negotiate process, and assisting them in relation to their agreement making processes.

You also talked about the registration test. I'll be brief, I've nearly finished. The process put in place by the Act is that true Native Title holders have to claim their rights. They have to go to courts and get their rights claimed but the system put in place in 1993 was aimed at giving claimants, those people claiming rights, significant rights even before there has been a determination by the court that they are Native Title holders. So in a sense there are two steps. The first step is to get registered as a claimant in the process. If Native Title claimants can get registered as a claimant which is simply an administrative decision, not a judicial decision they get the Right to Negotiate, they get notification rights, they get the ability to make agreements, they get a whole bundle of rights. So the registration test is just there to ensure that the people who get those bundle of rights have a credible claim. Then, the second stage is a court determination as to whether Native Title exists or not and if it exists what the bundle of rights or the rights the Native Title holder has. That's the court determination.

The rationale for the registration test is to ensure that people who are credible claimants get significant rights because as I've said several times Native Title was only recognised in Australia in 1992. But whilst it was recognised then it was very unclear who held it or where it was held. The purpose of the registration tests is to enable claimants to access significant rights under the Native Title Act. You asked about the intermediate period and intermediate period Acts. The intermediate period is jargon in the Act simply for that period between the Native Title Act first commencing operation in 1994 and the Wik decision. It's only relevant really to this validation regime. It's the period in which in Australia, we knew that Native Title existed but we didn't think it existed on pastoral lease land. So there needs to be just some specific provisions which deal with things that happened in that period and that's what the Intermediate Period Acts are about. You asked about restitution.

There are two issues here. Native Title can be extinguished under the Common Law in two ways. The first way is by the government granting a right to a third party. So if I have got from the government a freehold grant last century or whenever that grant will have extinguished any Native Title rights that existed on that land. The other way it can be extinguished is if the government just constructs a public work on the land so without granting the lands to someone else, if the government builds a hospital or a school or a railroad then that's the other way under the Common Law Native Title is extinguished. Two ways it is extinguished. The point about restitution is therefore there are two ways in which it can be restituted as it were. What Section 47B of the Act says is if in the future, the freehold grant that I've been given, I give back to the government and there's no grant or concession in relation to that land, then the Native Title holders can come along and claim that land then. Similarly if the school or the hospital or the railroad falls down or is no longer needed and the land reverts to being unused land again, that land can then be claimed by the Native Title holders. And I hope that explains the situation.

Just with the regard to the Aboriginal and Torres Strait Islander Social Justice Commissioner, I think I did mention these issues on Friday, but I'll mention them again. There has been no change in the functions currently of the Aboriginal and Torres Strait Islander Social Justice Commissioner. Indeed, just last week, the government appointed Dr William Jonas to that position. However, the government is proposing legislation to restructure the Human Rights and Equal Opportunity Commission of which that Aboriginal and Torres Strait Islander Social Justice Commissioner is a part. At the moment there is a Human Rights and Equal Opportunity Commission and there are six specific commissioners who look after specific issues. One of them is the Aboriginal and Torres Strait Islander Social Justice Commissioner. The restructure will do away with those six specialist commissioners. All those functions of the six specialist commissioners will then rest with the commission itself so it will be like the commission itself as a whole will be responsible for the functions which are now exercised by that one person. Ms McDougall did just ask one questions about whether the funding of that position is to be cut once that restructuring is undertaken and the government of Australia indicates that there will be no cuts to the funding available to the Human Rights Commission because of that restructuring. You asked about the length of mining leases, I can't say off the top of my mind but most of the leases we're talking about would be 20 or 30 years rather than five or 10 years. I apologise for taking so long.

Delegation: Thank you very much. I'd like to thank the committee members for their close attention to this detailed presentation. I just wanted to say one more thing if I may and that is that if it's the committee's intention to draw conclusions about Australia's compliance with the international convention on the basis of this legislation, then that is appropriate because we've made a presentation but of course that will require committee members to really address the detail of the legislation and to understand it in order to make that judgment.

If, however, the committee's inclined to make broader judgements about the state of relations between Indigenous People and the government, I don't think we've really provided the sort of briefing that would allow our committee to draw those broader conclusions. However, as I said on Friday, our 10th and 11th periodic reports will be submitted to the committee in a matter of weeks and I believe that those reports will draw some of the broader issues out which I sense are the subtext of this dialogue but have not really been addressed in any detail. So can I simply ask that this further periodic report be looked at with a view to addressing some of the unasked questions which I'm sure are in the committee's mind. Thank you very much for your close attention.

Chairman: I thank the distinguished representatives of Australia. Can I ask Ms McDougall to speak for seven minutes because I need a few minute to conclude. Anyway, I think you've almost covered all the points which you've raised. You have the floor Ms McDougall.

Ms McDougall: Thank you Mr Chairman. I would like to express the appreciation of the committee as a whole to the government of Australia for the seriousness with which it has approached this review process both in terms of its written submission and in sending this delegation, particularly a representative of the Attorney General's Office who came all the way from Canberra to discuss these matters and indeed at the last minute and without prior notification was asked and did agree to remain in Geneva over the weekend so that we could continue the discussion this morning. And so I want to thank Mr Orr personally and the Australian Government for that.

I think that we can all agree that this has been a very important dialogue. And certainly that these matters that we have been discussing on Friday and today are indeed very complex. In that regard I would say that it would be of great assistance to the committee if you might be willing to leave behind the notes from which you read today in responding to the questions. I think that it would be very useful to be able to be precisely right about the responses that you've given to us today. But I think that there are some points that we do agree on. First of all that Indigenous land rights are unique and encompass a traditional and cultural connection to the land that has been recognised in international law.

The international community now understand that doctrines of dispossession, by that I mean of conquest, of discovery of terra nullius etc. are illegitimate. Secondly I note and I think this was raised by one of my colleagues what the distinguished representative of the government said several times and that is that the Australian government believes that it cannot go back and cure the injustices of the past. Of course there is some merit in that view. What concerns me however is that the validation and confirmation of extinguishment provisions in the Amended Act, that among them are provisions that do not only apply to the distant past. They appear to apply also to actions that in some cases took place as recently as 1994 and 1996.

We've had some dialogue on this point already. Also the government representative stated that the domestic interpretation of the Racial Discrimination Act has placed more emphasis on formal rather than substantive equality. That distinction has also been raised in a number of submissions that the committee has received and we have talked back and forth somewhat even this morning about the relationship between the Racial Discrimination Act, Native Title Act and the amendments but whatever the position may be under Australian law, the mandate of this committee must be to determine the consonance of the Native Title Amendment Act with the international convention, not with Australian law or with domestic interpretations of international law.

Finally, there was a comment this morning that I thought I might comment on and that was that this committee when we last considered Australia and we did indeed welcome the Native Title Act. The comment was this morning was that in so doing the committee was happy with the understanding that under that Act, Native Title on pastoral leases which is a considerable portion of the land of Australia was extinguished. I must admit to not having been on the committee at that time but I do not think that that is a fair reading of why the committee, when it welcomed the Native Title Act, I think that it's fair to say that the committee at that time saw the Native Title Act as an advance from the prior situation, not establishing a situation of equality in its Act but an advance. And I think that what we are now quite concerned about is whether or not the amendments have retreated, have eroded some of that advance. So I just raise that point as well.

So I return to the point that these matters that we have been discussing are very complex and certainly warrant more than the five or six hours of discussion that we have had an opportunity to have in this session. At the same time, these matters are of the utmost urgency and I think cannot be postponed for further discussion when the next periodic review of Australia comes up on our agenda. Mr Chairman I would welcome a discussion within the committee about how we might continue our urgent deliberations on Australia's Native Title Amendment Act beyond the conclusion of this session but before other things get ensconced and other rights get extinguished in such a way that they would then be also referred to as the injustices of the past which cannot now be rendered right. So once more I would like to extend the appreciation of the committee to the government of Australia and its distinguished representatives for the quality of your responses to our requests for information. Thank you.

Chairman: I would like to thank Ms McDougall for expressing her views and those as a special country rapporteur on this matter. As to what the committee will decide. I think there will be a meeting of the bureau this afternoon and we will take into consideration the points you have raised concerning how we will proceed based on the time available and the decision of the members of the bureau. I would like to express first my gratitude to Ms McDougall for the wonderful work she has done. She did a wonderful job and I'm sure I'm expressing the appreciation of the members of the committee to her for a job well done and thank her very much for her presentation and the points which you raised and the concluding observation.

Now equally to the distinguished delegation of Australia, I would like to express to them my gratitude and on behalf of the members of the committee their appreciation for their frankness for the effort they have done. They shouldn't apologise for being so legal because, the questions they were asked were legal. You ask a legal question, you get a legal answer. So thank you again for the effort you did and I appreciate very much the way you presented your view. I'm sure we have some disagreements. We see things in different ways but I think we know better the point of view of the government of Australia on the issues which were raised. We appreciate the way you presented your views and thank you again and may I wish you a wonderful trip back home. Thank you very much, the meeting is adjourned and may I remind the members of the bureau that we'll have a meeting at 2:30 in the room reserved for the committee. Thank you very much.

The 1325th meeting of the committee on the elimination of racial discrimination is called to order.