Madam Chair,

I make this intervention on behalf of the Foundation for Aboriginal and Islander Research Action (FAIRA) and the National Indigenous Working Group on Native Title (NIWG).

Following the passage by the Australian Parliament last year of the amendments to the Native Title Act, the United Nations Committee on the Elimination of Racial Discrimination (CERD), using its early warning procedure, called on Australia to provide it with information about these amendments.

After considering the Australian Government's written and oral submissions, the CERD committee expressed its concern over the compatibility of the amended Native Title Act with Australia's international obligations under the Convention on the Elimination of All Forms of Racial Discrimination (the Convention).

In particular, the CERD Committee considered that to "wind back the protections of indigenous title offered in the Mabo decision and the 1993 Native Title Act "raises concerns about compliance with Articles 2 and 5 of the Convention.

The lack of effective participation by indigenous communities in the formulation of the amendments was also thought by the CERD Committee to breach Article 5(c) of the Convention.

The CERD Committee decided that the Native Title Amendment Act 1998 discriminates against indigenous title holders by validating past acts, extinguishing native title, upgrading non-indigenous title and restricting our right to negotiate.

For these reasons, CERD called on Australia to:

"address these concerns as a matter of urgency…to suspend implementation of the 1998 amendments and reopen discussions with the representatives of Aboriginal and Torres Strait Islander peoples with a view to finding solutions acceptable to the indigenous peoples and which would comply with Australia's obligations under the Convention".

Aboriginal people, through the National Indigenous Working Group on Native Title, called on the Prime Minister to reaffirm the government's commitment to the principles of non-discrimination by agreeing to meet with us to find ways of removing racially discriminatory provisions from the legislation.

To date the Prime Minister has not agreed to making such a commitment nor to meeting with our representatives to negotiate the matter.

Can the representatives of the Australian Government explain why the government has chosen to ignore the CERD decision? Why have they chosen instead to undermine the credibility of the CERD Committee?

Further, the Government formally objected to a visit to Australia by members of the CERD Committee to meet with representatives of Aboriginal and Torres Strait Islander Peoples, governments and the Parliament.

Such a visit would have allowed the Committee to get a better understanding of the racially discriminatory nature of the day to day operations of the legislation.

Why did the Government object to the visit? Is it afraid of further international scrutiny?

The Special Rapporteur on Racism, Xenophobia and related matters was due to visit Australia in 1998, during the period in which the amendments to the Native Title Act were being debated and when the racist legislation was passed by the Parliament of Australia.

Instead, acting on the advice of the Australian government, he decided that a visit was no longer necessary.

In October 1999 the triennial elections for Indigenous representation on the Aboriginal and Torres Strait Islander Commission will occur.

This will be the fourth election for ATSIC, three terms of ATSIC having been completed since its creation in 1990.

We all know that ATSIC is a national organisation created by government legislation.

What we, the Aboriginal and Torres Strait Islander people, do not understand is whether ATSIC is a non-government organisation, an Indigenous government (ie an expression of self-determination), or a GONGO.

A GONGO is a government organised non-government organisation, which may be formed by, and under the direction of, the government.

We ask the Australian Government to clarify this position for us at this forum.

Will the government explain:

• why their policy is not self-determination for the Aboriginal and Torres Strait Islander people;
• why the Minister gives over-riding directions to the elected representatives of ATSIC;
• why the government has removed a major proportion of annual funds from ATSIC;
• why the ATSIC commissioners had a ban on the Minister for over one year, a ban which has ended only very recently?

Further to the point of government efforts to control the agenda of ATSIC, or otherwise isolate ATSIC from government, we refer to questions asked of the government on its policy towards ATSIC.

The Minister, Senator Herron, was asked a number of questions in the Parliament regarding its relationship with ATSIC. He was asked whether the government had included ATSIC in its consultations when the government decided to abandon the long-held policy of self-determination for the Indigenous people. He was asked why the government had opted to not involve ATSIC in its consultations. There were other related questions concerning the attitude towards ATSIC.

The Minister's reply, which made this repetitive point on each of the questions, was that ATSIC 's participation in international forums, such as this WGIP meeting, meant that ATSIC could not participate in any official government processes of preparing policy or determining legislation on Aboriginal and Torres Strait Islander Affairs.

Given that the CERD committee has criticised the lack of informed consent by Aboriginal and Torres Strait Islander people in the Native Title laws we ask how does the government deliberate on Aboriginal and Torres Strait Islander issues when it no longer formally seeks ATSIC participation in government decision-making?

In 1967 Australia amended the Constitution to give the national government power to make laws and administer Aboriginal and Torres Strait Islander affairs.

In 1999 the government is clearly acting to remove its responsibility, handing it back to the State or Territory governments.

In this situation:

• how does the government inform itself on Aboriginal and Torres Strait Islander issues, particularly given the dismantling of ATSIC;
• why is the federal government moving to give responsibility back to the State and Territory governments; and
• how does the government ensure that its obligations to observe human rights are to be met in an accountable fashion?

In 1995 the a national report on the protection of Aboriginal and Torres Strait Islander cultural heritage, commissioned by the government, was concluded.

Since that time the Australian Government has not only failed to implement any of the recommendations of the Report but has also drafted new laws which hand the responsibility for heritage protection back to the State/Territory governments.

It should be noted that the national government accepted the responsibility under pressure in 1984, following widespread concerns about destruction of sacred sites.

The national government was compelled to establish heritage laws in 1984 because of the failure of the State/Territory government to provide adequate protections.

However, despite a general failure of the State/Territory governments to improve their laws since 1984, despite these governments' failures to provide any adequate funding for site protection, and despite the national government's clear commitment in 1993 to develop comprehensive heritage protection laws as part of its 'native title' legislative responses, the national government has not acted to fulfil a clear commitment to heritage protection.

Can the Australian Government please explain what efforts it has made to obtain the participation and 'informed consent' of the Aboriginal and Torres Strait Islander people?

Madam Chair, in 1991 the Australian Parliament unanimously passed legislation to establish the Aboriginal Reconciliation Council with a view to achieving reconciliation between the Aboriginal Peoples and non-Aboriginal People.

Upon his reelection last year, the Prime Minister, John Howard, stated that reconciliation was to be a high priority of his government.

At the same time, he ruled out any prospect of a treaty or comprehensive settlement between the Australian People and the Aboriginal Peoples and Torres Strait Islander Peoples.

The government is controlling the agenda which appears to have more to do with lowering Indigenous expectations and assuaging white guilt leading up to the millennium, the Sydney Olympic Games and the centenary of Federation.

Why won't the Government enter into serious dialogue with representatives of the Aboriginal Peoples and the Torres Strait Islander Peoples to find real and lasting solutions to the problem?

We remind the Australian government and the Peoples of the world that Aboriginal Peoples did not consent to the formation of the nation state of Australia - we were never asked!

Madam Chair, you reminded us on Monday morning that 1999 represents the mid-point of the International Decade for Indigenous Peoples.

We agree with you that little progress has been made in the first five years of the decade.

In fact, in Australia, recognition and respect for the rights of Indigenous Peoples have deteriorated during this period.

Madam Chair you asked for practical proposals to advance the Decade.

We ask the Australian government to outline what action it proposes to give greater focus to the decade.

Finally, Madam Chair, I wish to report a very positive development this year in the Australian State of Queensland.

FAIRA criticised four years ago the Queensland Government which had failed to return stolen wages, wages which were withheld for a period during ninety years from 1897 to almost this decade, to thousands and thousands of Aboriginal and Torres Strait Islander people.

The Queensland Government has now agreed to pay at least some money to the surviving people who worked under this racist system - a settlement which compensates for discrimination in wages for Aboriginal and Torres Strait Islander people who worked between the years of 1975 and 1986.

FAIRA successfully took legal action on behalf of six people living in the Palm Island Aboriginal community, and won a settlement for them last year.

We won again early this year when fourteen more people were compensated.

The Queensland Government has now decided to pay all persons, estimated at 3,500 people, in a settlement expected to total $25.0 million.

This decision by the government to voluntarily settle, saving much suffering, deprivation and humiliation for the people concerned, represents a significant human rights action to end racial discrimination.

It is not the final settlement as more legal action has to be taken to establish further compensation for the eighty-year period before 1975.

But we feel great honour in working with a government - the current Queensland Government - that is prepared to face its commitments and look for justice, rather than to wallow in denial of its past unlawful actions.

Thank you, Madam Chair.

FAIRA Aboriginal Corporation
Phone +61 7 3391 4677 • Fax +61 7 3391 4551 • email letterbox@faira.org.au
Post Office Box 8402 Woolloongabba Q 4102 Australia
37 Balaclava Street Woolloongabba