Transcript of Australia's Hearing before the CERD Committee

Disclaimer: This document has been compiled by the Foundation for Aboriginal and Islander Research Action (FAIRA) Aboriginal Corporation from tapes of the meeting of the Committee on the Elimination of All Forms of Racial Discrimination. FAIRA has endeavoured to provide a true and accurate record of the meeting, however there may be errors which remain undetected. FAIRA takes full responsibility for the accuracy of this report.

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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

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

Firstly, it recognised and protected Native Title rights.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


Ms McDougall's session transcribed elsewhere on web site.


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


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


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


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

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

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

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

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

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


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


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

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

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

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

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

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

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

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


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


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

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

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


Mr Chairman: I thank Mr Lechuga Hevin for his intervention and I now call on Mr Luis Valencia Rodriguez. You have the floor sir.


Mr Valencia Rodriguez: Mr Chairman, for my part, I don't want to go on at too great length on this subject although I think it is of great political and economic significance for the Aboriginal populations of Australia. I well understand the interest which has been aroused in this subject in many peoples, not only among them but in many political and economic circles in Australia which quite rightly feel that they're disadvantaged. I would just like to say that I entirely agree with the excellent introduction by Ms McDougall in her capacity as special rapporteur on that country and with the statements made by the colleagues who have taken the floor before me. I think that we're facing a policy adopted by Australia which does in fact show some incompatibility with the provisions of the Convention. I think that my colleagues have expressed concerns which lead me to raise one or two other comments or questions but they'll simply repeat what they've said. I think these interventions require specific answers which would make it possible for the committee to take a position in accordance with the convention. I, too, would like to state for the record that I note the goodwill showed by the Australian government and the good faith in presenting this report in response to our request, and I would also like to thank the distinguished representatives of Australia for their introductory statements. Thank you.


Mr Chairman: I'm thankful to Mr Luis Valencia Rodriguez for his contribution. As matters now stand, he was the last speaker on my list. Not anymore. I call on Ms Zou. You have the floor madam.


Ms Zou: For having responded to the decision from the committee by sending people especially from Canberra to have a dialogue with the committee, and for that I'd like to express my gratitude and thanks to the Australian government for its sincerity. With regard to the rights of the Aborigines in Australia, just now Ms McDougall has made a very clear and detailed profound analysis of the situation. I'm not entirely clear of the situation. There's no way for me to have an even more profound analysis of the situation than she has already done.

I'd just like to give a view of my first impressions. From all the material provided by NGOs, of course as far as my concerns, there's no way for me to finish reading them all in a few days because I'm limited in my English. However, I'm under the impression that from what has been, as far as we can see with the impression, the policy of the Australian government versus Aboriginals has been digressing. In another sense, this is less favourable than before. In the past the rights enjoyed by the Aboriginals have been taken back to some extent through methods of Acts or legislations.

Also, from my reading of newspapers some parties which have in their manifestation the ideal of xenophobia are quite active, such as the One Nation political party. And they openly in Australia advocate the philosophy of racial discrimination and xenophobia. In the face of this situation, it seems that the Australian government is yet to come up with a very strong reaction. This kind of practice is something that is totally against our convention. So I'd like to sound a warning that these kinds of measures call for sufficient attention on the part of the Australian government. It's not only a question relating to Aboriginals, the racism and xenophobia are of a general phenomenon. So much for my comments. Thanks.


Mr Chairman: Thank you very much Ms Zou for your intervention. I now call on the next speaker who is Ms Sadiq Ali.


Ms Ali: Thank you Mr Chairman. I shall be very brief because all our colleagues, especially Ms McDougall, have covered the subject very well. And I am also grateful to the delegation of Australia for devoting so much time to our queries. Now the only point that I would like to stress again and again, is that the committee links the obligation of non-discriminatory respect for Indigenous culture to the question of control over land. This is the point that is at the heart of the question and I would appeal to you to try and negotiate an amicable settlement.


Mr Chairman: I thank Ms Sadiq Ali for her contribution. She was the last speaker on my list. I stand to be corrected if this is not the case. And it appears to be. Now following some consultations with the distinguished delegation of Australia, I believe that we can usefully use the remaining 35 minutes by giving them the opportunity to start their initial responses and then of course they'll have the right to complete their responses on Monday morning. Now in order to prepare themselves a little bit with their papers and not with arguments - for that they are ready - I propose that we suspend the meeting for five minutes, not more. Just to give them time to collect their papers and start their responses. This meeting is suspended for five minutes.

The 1323rd meeting of the committee on the elimination of racial discrimination has resumed. As announced prior to the suspension, the distinguished delegation of Australia will use the remainder of our time to start its responses to the questions raised and the points made by the country rapporteur and the other members of the committee who have participated in the debate. I therefore call on the distinguished delegation of Australia to have the floor.


Distinguished delegation: Thank you Mr Chairman. I'd like to take this opportunity to thank all members of the committee for their obviously very thoughtful and very detailed questions and comments. The fortune in having the weekend in order to ensure our answers are equally detailed and thoughtful and I promise that come Monday we will be responding to all the issues that have been raised. As a preliminary matter, I wonder if I may be allowed just to further elaborate, Mr Chairman, your clarification to the question asked by Mr Yutzis concerning the invitation which we issued. As the Chairman clarified, we did issue the invitation at the request of the special rapporteur of the Commission on Human Rights on Racism and just to clarify the circumstances, in fact the distinguished special rapporteur was unable to visit Australia due to his illness. The second attempt to organise a visit was impossible because of the coincidence of our general election in Australia and since then the special rapporteur has indicated that changed circumstances in the politics of Australia mean that he believes there has been an improvement in the situation which no longer necessitates an early visit and he's indicated to us that he doesn't expect to be taking up the invitation in the course of this year. But of course, from the Australian government's point of view, he's welcome to take up that invitation at any time. I hope that clarifies that point.

If I may be allowed to move to a related matter that was raised by Ms Zou, the question of some political developments in Australia. I must say that this falls a little bit outside the area demarcated by the information request to us, we haven't come with detailed responses to these sorts of questions but I think I can draw on something which the special rapporteur himself said to the General Assembly of the United Nations in November of last year. If I may be allowed, Mr Chairman, I think it goes some way to answering the question and concern that you have raised with us. The special rapporteur said of Australia: 'As concerns Australia, the set back experienced by the One Nation party of which the leader Ms Pauline Hanson recently lost her seat as a member of the Australian Federal parliament should be noted. It is comforting to note that the population of Queensland, as well as the Australian government, are making an effort to reduce the influence of the party which opposes the official policies of multiculturalism and ethnic and cultural diversity which characterise that country.'

The special rapporteur went on to say: 'The day after the parliamentary elections which took place in October, the Australian Prime Minister emphasised in a speech that tolerance and non-discrimination as well as the multi-ethnic and multi-cultural character of Australia, remain essential values of the Australian people and undertook to promote an authentic reconciliation with the Aborigines in the context of the centenary celebrations of the Australian Federation'. He finished by saying: 'A new portfolio with responsibility for reconciliation has been created to that effect.' That's the end of the special rapporteur's quote.

I might also say in addition to that, that since the election the government has established a National Multicultural Advisory Council to advise the government on multicultural policies. This Council reflects the government's commitment to promoting open, constructive and factual debate on the nature of our multicultural society and the way it can be moved forward. The government has also recently launched the Living in Harmony program which is designed to support community awareness of racial, cultural, social and religious diversity in Australia. This initiative primarily funds community based education projects in partnerships which reduce racism and bigotry. I hope that goes some way to addressing the concerns that you put to us Ms Zou. Having said those few things, I'd like to defer to my colleague Mr Orr who will begin the task of addressing the specific questions which relate to the Land Title Act and Land Title policy in Australia. Thank you.


Mr Orr: Thank you Mr Chairman and I also thank the committee for its many comments and its many questions. I think I'll have some difficulty getting through those questions this evening though I understand we'll have the opportunity to complete answering those questions on Monday. Some of those questions were of quite a specific nature, some of them were much more general. What I thought I might do is just begin perhaps at a more general level and say some things which I didn't say in my introductory remarks which I think are perhaps relevant to informing the more detailed discussion being made. I might then move to the more specific questions. I think a number of members asked about Australia's general interpretation of its obligations under CERD, and in particular, under Articles 2 and 5. Australia regards these Articles as placing a two-fold obligation on it to prohibit racial discrimination and guarantee equality and a duty to take temporary affirmative action when circumstances warrant to ensure racial equality. In essence, therefore, they require equality between racial groups.

Equality can be achieved by formal equality and special measures where appropriate or at any rate by substantive equality. As Australia understands it, substantive equality requires the same treatment of things that are the same and appropriately different treatment of things that are different. However, judgements as to whether things are the same or whether things are analogous and if not, the appropriateness of different treatment can only be made on a case by case basis weighing all the relevant circumstances. Some of the matters I referred to in my introduction went to some of the analysis which the Australian government had undertaken in relation to Native Title rights. International law, as Australia understands it, generally recognises this by according States margins of appreciation in their implementation of non-discrimination principles. However, in relation to discrimination on the basis of race, the margin of appreciation is very narrow. This means that there'll be few instances where the State may treat racial groups in different ways. However, novel areas of law attract a wider margin of appreciation thereby recognising a greater range of permissible treatment.

In Australia's view, the recognition of Common Law Native Title Rights more than 200 years after the settlement of Australia, is some small basis for allowing some margin of appreciation, in particular in relation to historical actions. This was something that I raised in my introductory remarks and I know there are a number of specific questions which I'll proceed to answer. But there is an issue for Australia as to whether it can go back and undo discriminatory actions which have taken place in the period since settlement and before the Mabo decision in 1992. I just raised that as an issue and I think it's an issue that needs to inform our discussion about the validation regimes and the confirmation regime. Of course Australia recognises that in determining if a particular case complies with CERD it is important to have to regard that decisions regarding treatment are not arbitrary. In other words, they must have an objectively justifiable aim and proportionate means. And, that's another reason why in my introductory remarks I went to some length to explain the objective, the justifiable objective that some of the measures in the Native Title Amendment Act seek to meet and the proportionate means by which they seek to meet them.

Now I understand from some of your comments that you're uncomfortable with some of those; both as to the objectives and as to the proportionate means and again I'll come back to that when we look at the particular areas of concern that the committee has expressed in relation to the Amendment Act but suffice it to say at this stage that Australia is aware of the need to have objectively justifiable aims and proportionate means in dealing with this issue. As I've said in my submission and I think this was mentioned in a number of comments, Australia has incorporated CERD into its domestic law with the Racial Discrimination Act on 1975. A number of comments were made and a number of questions raised as to the relationship between the Racial Discrimination Act and the Native Title Act. I certainly want to speak to that and to answer those questions.

It is important to note, however, that the domestic interpretation of the Racial Discrimination Act, whilst it's informed to large extent by international law, is not dependent on it and a situation we've had in Australia has been that domestic interpretation of the Racial Discrimination Act has placed more emphasis on the requirements for formal equality and the only exception to that being special measures, has placed more emphasis on that approach than on an approach of allowing for substantive equality. So I just say that within the Australian judicial system, there is something of a disfunction between those two approaches. From our point of view, I don't think that makes a great deal of difference but it does, in a sense, colour the discussion that we've had and are having and I'll come back to this when I answer the questions with regard to the relationship between the Racial Discrimination Act in Australia and the Native Title Act. If I could just make one or two more general points about Australia's approach to CERD in relation to the Native Title Amendment Act, the fact that the Amendment Act deals principally with Native Title rights, that is the rights to land and waters, arising from the traditional laws of Australia's Indigenous Peoples as recognised by the Common Law and doesn't deal principally with the rights of others with interests in lands and waters whether those rights and interests arise under the Common Law or Statute Law does not in Australia's view make the Act discriminatory.

The original Native Title Act dealt principally with the Native Title Rights of Australia's Indigenous People and dealt very little with the rights of others. The Amendment Act is in a similar position. It deals extensively with the Native Title Rights of Australia's Indigenous People and only indirectly or to a limited extent with the rights of others. Again I say, in Australia's view, that doesn't make either the original Native Title Act or the Amendment Act of itself discriminatory. Rather in the Australian government's view, it is necessary to look at the overall substantive effect of the Native Title Act and the Native Title Amendment Act, and other relevant legislation and the balance that is struck between the various rights and interests.

This balance isn't struck just in the Native Title Act and the Native Title Amendment Act. Also, it is necessary to recognise that past Acts, historical Acts, and the effects of these cannot be undone. It is a point I made in my opening statement and I make again. Past Acts, however discriminatory, which have resulted in dispossession of Australia's Indigenous People cannot be undone though, of course, present and future policies can remedy the effects, the current effects, of such past Acts. So, bearing in mind these two points, the government believes that the Native Title Amendment Act doesn't breach CERD. And just the general point I made and I make again because there were a number of comments on this issue, the Native Title Act continues to pursue the objectives of the original Act.

There were some specific issues raised and as I said I'll come to those shortly but the Act itself states that it continues to pursue the objectives of recognising and protecting Native Title Rights of Australia's Indigenous People. As for the issue about obtaining the consent or consulting with Indigenous People, I'll make some specific comments with regard to those questions later as well. But I just want to make a general comment which I didn't make in the opening and that was that the government did attempt at the beginning of the process, after the Wik decision, to obtain some form of consensus as to its reconsideration of the operation of the Native Title Act.

In the government's view, this was not possible. However, the government did meet with stakeholders including Indigenous representatives and I'll provide some details about those meetings later. It did publish its proposals. It sought and considered comments at a number of stages during the process. It allowed extensive parliamentary debate with regard to the Amendment Act - indeed the longest debate in the history of the Commonwealth parliament. As I mentioned earlier, the government accepted a large number of amendments to its original proposed bill; many of those amendments took into account comments by the Opposition and minor parties and Indigenous representatives. The process of developing the Amendment Act and the Act itself in the end didn't meet the concerns of those Indigenous representatives. But as I also said in my opening address it did not meet the concerns of other stakeholders as well, including pastoralists, miners, and some States and Territories.

After making those preliminary comments, I might begin by addressing some of the questions which were raised by Ms McDougall, the rapporteur for this issue. Her first lot of questions concerned the Wik decision itself. You'll remember in my opening remarks, I set the structure of the Mabo decision which in 1992 first recognised Native Title and the Land Rights of Australia's Indigenous People, the Native Title Act, the Wik decision and then the response to the Wik decision and other issues in the Amendment Act.

Ms McDougall asks whether I agree with her summary of the Wik decision and I do because her summary is very similar to the summary which I provided of the Wik decision. Pastoral leases are a traditional form of grant by governments in Australia. Whilst it was assumed by many before the Wik decision that the grant of such rights had extinguished Native Title, the High Court clearly held in the Wik decision that the grant in a pastoral lease does not necessarily extinguish all the Native Title Rights in that land. Now, the word 'not necessarily' is important because what the court seems to be saying is that in some cases it might and in some cases it might not. And that you need to look at the specific facts of the case.

I think the Commonwealth government had, on the basis of its decision, assumed - and in my view to its credit - that all pastoral leases probably don't extinguish Native Title in Australia. That is, it started with the assumption that pastoral leases do not extinguish Native Title in Australia, perhaps an assumption which is more generous than the Wik decision itself. The second point in her summary is that Native Title is capable of co-existing on land with pastoral leases and again, the Australian government agrees with that. That co-existence which I talked about extensively in my opening summary.

Her third point is that where there is a conflict between the pastoralist's rights and those of the Native Title holder, the pastoralist's shall prevail but only to the extent of the inconsistency and again we agreed with that summary. Where I think the issue becomes harder is - what does this mean with regard to particular pastoral leases and particular Native Title holders.

The report says that pastoral leases are limited and asks why the Wik decision should cause a high degree of uncertainty. Well, I think there are a number of answers to that question. First of all, it is very unclear in most pastoral leases in Australia what the rights of the pastoral lessee are. This is something of a historical problem for Australia. Up until the Wik decision it didn't really matter what the pastoral lease said or what the rights given to the pastoral lessee were because it was really only a matter of the legal relationship between the government and the pastoral lessees and they were able to work it out amongst themselves.

The great thrust of the Wik decision is that there is now a very significant third party involved - the Native Title holder and it becomes important to ascertain what are the rights of the pastoral lessees because as the High Court said, they're the ones that prevail. And, as I said it is often difficult to ascertain what those rights are and more importantly they vary extensively across Australia.

As I mentioned in my opening statement - actually I may not have mentioned this but it's a point I need to make because it'll come up in a number of answers to these questions. Land law in Australia has been a matter for the States and Territories not the Commonwealth government. Therefore the States and Territories have developed their own rules, their own regulations, their own forms of tenure - some of which are quite idiosyncratic and none of which are comparable from one jurisdiction to another. So there's a broad range of things which pastoralists are able to do from State to State, and perhaps more importantly, there's a broad range of things which States are able to give, or enable pastoral lessees to do - an issue which we'll come to shortly.

But perhaps the most important point about the uncertainty which arises from the Wik decision is that whilst Common Law position and the position which the courts expounded - that's not necessarily the position of the Native Title Act itself. In fact, there's an argument that the Native Title Act reverses that, and gives the priority to the Native Title holders. Now, I could talk extensively about that but the point that really needs to be made is: there was significant confusion after the Wik decision as to what the rights of the pastoral lessees were and what the effect of the Native Title Act was on those. Perhaps I'll try and do this simply although I often have trouble doing this simply. Perhaps the general point to be made in my view that there was considerable uncertainty after the Wik decision as the rights of pastoral lessees and the rights of Native Title holders on land where those two rights co-existed. And one of the purposes of the Native Title Amendment Act was to try and bring some clarity to that situation.


Chairman: I am grateful to Mr Orr, as indeed to the head of the delegation of Australia, Mr. Goledzinowski, for their responses today. We look forward to them continuing their analysis of the points they want to continue with and respond to the many other questions which time did not allow to them to this point tonight. We shall turn out on Monday morning at 10 o'clock. We look forward to seeing them at that time. Until then we wish them well. Well, colleagues this concludes our business for this afternoon. This meeting is adjourned. We shall see each other on Monday morning at 10 o'clock. Until then, all the best. The meeting is adjourned.


Chairman: Before we resume our consideration of the report on Australia, I have an announcement to make. I received a note from Mr Banton informing me he would not be able to attend this meeting for the whole week because it seems that Mrs Banton experienced a slight stroke and she was admitted to a hospital in London and he, of course, had to be with her so I hope that we try to find out some news and tell him that we wish him the very best.

The second point I wanted to raise this morning with you before we resume the consideration of the report is that I think that maybe the bureau can meet today at 2.30 in the office which is reserved for the Committee so that we will have some consideration of the future work and how we will proceed from now on. Now I understand that the list of speakers, those who wanted to speak and did so on Friday. I understand that the delegation of Australia started even answering some of the points which were raised in that discussion so I will give you the floor to continue. You have the floor.


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 Austral