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8. International Issues
Some of the amendments proposed to the Native Title Act 1993 are likely to put Australia in breach of obligations it has accepted under several important international instruments.
These amendments include:
- proposals to authorise converting pastoral leases from term leases to perpetual leases, and to authorise a wide range of non-pastoral activities
- a stringent new registration test before native title holders become entitied to the right to negotiate
- substantial erosion of these 'right to negotiate' procedures once the registration test is satisfied.
The relevant international standards relate to:
- property rights
- cultural rights
- discrimination on the grounds of race; and
- political participation rights.
Such standards are found in:
- the United Nations Charter
- the International Convention on Civil and Political Rights
- the International Convention on Economic Social and Cultural Rights
- the International Convention on the Elimination of All Forms of Racial Discrimination.
Racial Discrimination Act
The significance of these international instruments is illustrated by the crucial role that the Racial Discrimination Act 1975 (RDA) has played in the history of the recognition of native title and its subsequent protection. The RDA was enacted to implement the International Convention on the Elimination of All Forms of Racial Discrimination in Australian law.
In the first Mabo judgement (1988) the High Court invoked the RDA in rejecting an attempt by the Queensland Government to retrospectively extinguish the plaintiffs claimed rights. Mabo No. 1 made possible the recognition of native title in Mabo No.2 (1992). The RDA was again invoked in the High Court's rejection of the West Australian Government's challenge to the NTA, and continues to protect native title rights to this day.
Australia in the world
Australia takes seriously its role as a model international citizen. Nevertheless, the disadvantaged and unequal position of indigenous Australians continues to attract international criticism. It is the nation's number one human rights issue. Australia, as a prosperous First World nation, has a duty to work constructively to ensure that the original Australians share in the benefits enjoyed by the general community.
Impairment of native title rights will breach our obligations under international law and bring Australia into international disrepute.
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