Committee on the Elimination of Racial Discrimination (CERD) decision on the Native Title Amendment Act 1998 (Cth) decision

Geneva

The role of the Committee on the Elimination of Racial Discrimination CERD

CERD is a body of independent experts that monitors State parties' implementation of
the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD). Australia ratified the International Convention on the Elimination of
All Forms of Racial Discrimination on 30 September 1975, and it was given domestic effect in the Racial Discrimination Act 1975 (Cth).

The CERD decision on the 1998 Amendments to the Native Title Act 1993 (Cth) (NTA)

On 18 March 1999, CERD handed down its decision in relation to the 1998 amendments to the NTA. 

CERD found that the amendments were inconsistent with Australia's obligations under the
ICERD. CERD expressed two overarching concerns:

• amendments to
  the NTA favour non-Indigenous interests at the expense of Indigenous
  title, and do not strike an appropriate balance between Indigenous and
  non-Indigenous rights; and
• the amendments restrict the right to
  negotiate, provide for an overwhelming amount of exceptions to the right
  to negotiate, and discriminate against native titleholders.

CERD urged Australia to suspend the
amendments and 'open discussion with First Nations Peoples to find
solutions acceptable to the Indigenous population and which would be
consistent with Australia's obligation under the Convention. CERD expressed its concern that the following provisions in the amended NTA are in breach of Australia's obligations under Article 2 and 5 of the Convention:

• Validation provisions;
• Confirmation of extinguishment provisions;
• Primary production upgrade provision;
  
• restrictions concerning the right of Indigenous titleholders to negotiate non-Indigenous land uses; and
  
• the strict regime of proof under the NTA.

(Aboriginal and Torres Strait Islander Social Justice Commissioner, HEROC. Report No. 1/2000)

Background

On 11 August 1998, CERD issued an early warning and urgent action in relation to an information request about the 1998 amendments to the NTA. On 5 June 1999, CERD wrote to the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission (HREOC) requesting information for consideration at the CERD 55th session. Australian government representatives appeared before CERD in Geneva on 12 and 15 March 1999 in relation to the early warning and the request.

Before handing down its official decision on 18 March 1999 (as above), CERD commented that the amendments 'wind back the protections of Indigenous title offered [under previous Australian law... raising] concerns about the State party's  compliance with articles 2 and 5 of the Convention'. Specifically, CERD questioned Australia's compliance with article 5(c) because of the lack of participation of Indigenous communities and lack of communication with these communities. The following is a summary of Article 2 and 5:

Article 2

State parties condemn racial discrimination and take steps to pursue all appropriate means towards its elimination, this includes the implementation of policies to eliminate racial discrimination and promote understanding among all races. Additionally, states shall take measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing full and equal enjoyment of human rights and freedoms.

Article 5

State parties shall prohibit and eliminate racial discrimination in all forms, and guarantee all fundamental rights regardless of race, colour, national, or ethnic origin. Some relevant rights in Article 5 include:

• right to equality before the law;
  
• right to equal treatment before tribunals and all other organs administering justice; and 
• political rights, including the right to take part in Government as well as in the conduct of public affairs and have equal access to public service.

(Aboriginal and Torres Strait Islander Social Justice Commissioner, HEROC. Report No. 1/2000)

In June 2000, an Australian parliamentary committee considered CERD's decision and found the amendments were consistent with Australia's obligations under ICERD. Based on this parliamentary committee finding, Australia rejected the decision and the amendments were implemented without negotiation with Indigenous people, both at a Federal and State level (Australian Government 1999).

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References

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