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NATIVE TITLE AND INTERNATIONAL LAW

Overview 

Native title has been linked to international law since Justice Brennan’s judgement in Mabo.  In deciding that native title continued to exist through the common law, Brennan J not only observed that the ‘expectations of the international community accord in this respect with the contemporary values of the Australian people’ but also affirmed that ‘international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of human rights’ [at 29].  Since then, international law has often played a role in native title discussions, usually with reference to Australia’s obligations under international law, human rights standards and racial discrimination. 

This resource looks broadly at native title and human rights, native title and racial discrimination, provides electronic access to key international law conventions and general and specific resources.   

Legislation

Native Title Act 1993 (Cth)

Racial Discrimination Act 1975 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

International Law Conventions

Universal Declaration of Human Rights

International Covenant on Economic, Social and Cultural Rights

International Covenant on Civil and Political Rights

Optional Protocol to the International Covenant on Civil and Political Rights

United Nations Declaration on the Elimination of All Forms of Racial Discrimination

International Convention on the Elimination of All Forms of Racial Discrimination

Native Title and Human Rights 

Human rights are a fundamental concept of international law.  Broadly speaking, they are the basic rights that people are entitled to by the fact that they are human.  The Universal Declaration of Human Rights states that “this universal declaration of human rights as a common standard of achievement for all peoples and all nations...” 

Although native title is not explicitly considered a human right, there are many human rights which would require the recognition and protection of native title in Australia as a means of recognising and protecting a number of other human rights.  These rights, for instance, include the right to self determination and Article 27 of the International Covenant on Economic, Social and Cultural Rights (ICCPR) which provides:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Human Rights and Equal Opportunity Commission (HREOC) is central to linking native title to human rights.   

Under the Native Title Act 1993 (Cth), the Commissioner is required to make a Native Title Report to Federal Parliament each year. Through these reports, the Commissioner gives a human rights perspective on native title issues and advocates for practical co-existence between Indigenous and non-Indigenous groups in using land. 

The objectives of the Commissioner in monitoring and reporting on the operation and human rights impact of the NTA include:

• to provide and promote a human rights perspective on native title;
• to assist in developing more efficient native title processes; and
• to advocate for the co-existence between Indigenous and non-Indigenous interests in land based on compatible land use.

In addressing the specific issues that have arisen and will continue to arise in relation to native title, it is vital to keep the nature of that title in perspective. Native title is a property right reflecting a relationship to land which is the very foundation of Indigenous religion, culture and well-being. The non-discriminatory protection of native title is a recognised human right.

HREOC's Native Title Functions

Native Title Reports 1994 - 2000

Resources 

Michael Dodson 1997. ‘Human rights and the extinguishment of native title’, in Elliott Johnston, Martin Hinton, Daryl Rigney (eds.), Indigenous Australians and the Law, Cavendish, p 149-166. 

Melissa Castan 2003. ‘The High Court, human rights and the new jurisprudence of denial’. Paper presented at the Castan Centre for Human Rights Law Conference 2003, 4 December 2003, Melbourne.    

Lisa Strelein, Michael Dodson and Jessica Weir 2003. ‘Understanding non-discrimination: Native title in a human rights context’, Balayi, Vol. 3, p 113-148.  

Aboriginal and Torres Strait Islander Commission 2000. ‘Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Civil and Political Rights.  A report submitted by the Aboriginal and Torres Strait Islander Commission to the United Nations Human Rights Committee.’ ATSIC, Canberra.   

Human Rights Council of Australia, ‘Native title and Aboriginal Australians.  Submission to the Joint Committee on Native Title Amendment Bill’.

Native Title and Racial Discrimination 

The Racial Discrimination Act 1975 (Cth) (‘RDA’) is the legislative enactment of Australia’s commitments under the Convention on the Elimination of All Forms of Racial Discrimination.  The RDA is consistent with the Convention but its terms are not identical.  In relation to native title, the RDA is central to the decision in Mabo (No 1) which held that but for the RDA, the Queensland Coast Islands Declaratory Act 1985 (Qld) would have effectively extinguished native title.  In Mabo (No 2), the RDA is recognised as the source of compensation claims for extinguishment of native title by the Crown after 1975 (the year the RDA came into operation.). 

For further information, see the Human Rights and Equal Opportunity Commission’s publication, The Racial Discrimination Act and Native Title, answers and questions relating to native title and the RDA. 

Generally speaking, the RDA also makes general principles of non-discrimination Australian law.  For instance, s.9 of the RDA makes it unlawful for a person to do any act involving a distinction based on race which has the effect of impairing the enjoyment of any human right or fundamental freedom.  Section 10 of the RDA provides that where by reason of any law persons of a particular race do not enjoy a right to the same extent as persons of another race, then by force of that section, the first mentioned persons enjoy that right to the same extent. 

The Aboriginal and Torres Strait Islander Social Justice Commissioner - First Report 1993

(Extract) 

Native Title- Significance of the Racial Discrimination Act 1975  

This Commonwealth enactment under the external affairs power of the Australian Constitution introduced statutory protection against racial discrimination in accordance with Australia's obligation under the International Convention on the Elimination of All Forms of Racial Discrimination. There could be no clearer demonstration of the importance of international human rights standards in protecting the interests of Aboriginal and Torres Strait Islander peoples than the operation of this Act in the context of the Mabo decision.

The High Court's judgment on native title would not have been given but for the protection of this Act. Sir Joh Bjelke-Peterson, the then Premier of Queensland, attempted in 1985 to frustrate the Meriam people's claims to their islands by passing the Queensland Coast Islands Declaratory Act. Its object was blunt: to extinguish the traditional legal rights of the Meriam people. The High Court held that the Queensland statute was ‘clear and plain’ in its intention. Under the common law it would have extinguished native title to the Murray Islands. However the statute was inconsistent with the provisions of the Commonwealth Racial Discrimination Act 1975. Under constitutional principles it was invalid in so far as it "abrogated the immunity of the Meriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. (ref 14)

Section 9 of the RDA makes it:

Unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights or fundamental freedoms in the political, economic, social cultural or any other field of public right.

Moreover, section 10 of the RDA is pro-active. It does not prohibit discrimination. It positively grants rights to ensure equality before the law.

By reason of, or of a provision of, law of Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

Since it came into operation on 31 October 1975 the RDA has provided protection against not only intentional acts of racial discrimination but also the careless or inadvertent denial of the legal rights of Aboriginal and Torres Strait Islander peoples.

Accordingly, since 31 October 1975 the validity of grants of land and government acts in respect of native title land, which ignored or were made in ignorance of the rights of the title holders, are open to question. They are potentially invalid. No compensation was paid to the native title holders as it would have been if the property of any other title holder had been acquired. More importantly, no equal right of procedural fairness was accorded to the native title holders at the time of the Crown grant or act.

The issue of the potential invalidity of non-indigenous titles granted after 1975, through the combined operation of the existence of native title and the provisions of the RDA, has fundamentally shaped the public debate as to what should be done in response to the High Court's decision.

Native Title Report January - June 1994 

The WA Act and the Racial Discrimination Act 

(Extract)

The effect of the WA Act on native title depended upon the operation of the RDA. By s.7, the WA Act purported to extinguish native title and to replace the rights and entitlements that were incidents of native title with equivalent "rights of traditional usage" . (Rights of traditional usage are referred to in the judgment and in this summary as "s.7 rights".) However, the WA Act placed limitations on the equivalence between pre-existing native title rights and the s.7 rights which replaced them. The limitation on which the Court focused is contained in the words of s.7 which provide that the statutory rights are equivalent to native title rights "unless this Act provides otherwise".

The WA Act was challenged on the basis that it discriminated against Indigenous peoples who, but for the effect of the Act, would be the holders of native title. It was argued that the WA Act denied them the right to equal enjoyment of their human rights, in particular the right to own property, the right to inherit and the right to equal treatment before tribunals.

The Court explained the relevant operation of the RDA as follows:

Where, under the general law, the indigenous "persons of a particular race" uniquely have a right to own or to inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s.10(1), security in the enjoyment of their property "to the same extent" as persons generally have security in the enjoyment of their property. (ref 4)

The RDA provides this security for the right to own property in two ways:

1. It provides immunity from arbitrary deprivation of property where that property is characteristically held by persons of a particular race; and

2. It prevents the operation of a law that purports to authorise the expropriation of property characteristically held by persons of a particular race for reasons or on conditions that would not apply to property held by other members of the community.

If a state law purports to do either of these things it is inconsistent with the RDA and s.109 of the Constitution makes the state law invalid.

If the WA Act attempted a bare extinguishment of native title in circumstances where the Act did not extinguish the property rights of other title holders it would clearly be inconsistent with the RDA . Although the WA Act purported to extinguish native title, it also attempted to replace native title rights with statutory rights. Consequently, in order to determine whether the WA Act was inconsistent with the RDA, it was necessary to review its effect in some detail. The Court used the standards of security of enjoyment provided to other forms of title as benchmarks to assess whether, under the regime set up in the WA Act, the Indigenous holders of s.7 rights enjoyed their human rights in relation to land to the same extent as persons of other races.

The Court compared the rights of the holders of s.7 rights and the rights of the holders of other forms of title under Western Australian legislation. The observations made by the Court in the course of this comparison are set out in the following table:

The Court concluded that: "[t]he ‘rights of traditional usage’ which are created by s.7 and are qualified by the subsequent provisions of the WA Act fall short of the rights and entitlements conferred by native title the enjoyment of which is protected by s.10(1) of the Racial Discrimination Act. The shortfall is substantial." (ref 5)

Under the regime established in the WA Act, native title holders (whose rights were converted into s.7 rights) did not receive the same security of enjoyment of their property rights as people of other races who hold property. The rights conferred by s.7 in substitution for native title rights were not equivalent to native title rights as they are protected by the RDA . As a result, the WA Act was inconsistent with the RDA and by operation of s.109 it is invalid. Native title was not extinguished by the operation of the WA Act.

Apart from the future treatment of native title, the WA Act also retrospectively attempted to validate acts which purported to extinguish or impair native title after the commencement of the RDA . The WA Act provided a right to compensation for the effect of such acts and the criteria for compensation did not appear to the Court to discriminate overtly against the holders of native title. 6 However, the Court held that the conferral of a present right to compensation would not enable a state legislature to authorise acts which are inconsistent with the RDA.

If, consistently with s.10(1) of the RDA, a State law could not have authorised the extinguishment or impairment of native title because there was no corresponding authority to extinguish or impair other forms of title, a State law which purports to confirm retrospectively the validity of the act which extinguished or impaired native title cannot restore effect to the act in question.

The Court said that the effect of the RDA on the validity of state laws that authorise acts purporting to extinguish or impair native title is yet to be determined. The Court did not decide this question, but it did find that the provisions in the WA Act that purported to validate the past extinguishment of native title had no legal effect.

The consequence of the Court's analysis of the relationship between the WA Act and the RDA is that the attempt to extinguish and convert native title into statutory rights failed, as did the attempt to validate past acts. Because these provisions were central to the operation of the WA Act the Court concluded that it had no legal operation.

Selected Resources 

Margaret Donaldson and Yvette Park 2003. ‘The Racial Discrimination Act: Does it have a role in native title?’, Indigenous Law Bulletin, Vol. 5, No. 24, (April – May), p 8-10. 

Jennifer Clarke 1997. ‘Racial non-discriminations standards and proposed amendments to the Native Title Act’, Land, Rights, Laws: Issues of Native Title, Vol. 1, No. 16 (April).   

Lisa Wright 2003. ‘Part 2 of an analysis of the Ward decision’, Indigenous Law Bulletin, Vol. 5, No. 26 (July-August), p 18- 23. 

Lisa Strelein, Michael Dodson and Jessica Weir 2003. ‘Understanding non-discrimination: Native title in a human rights context’, Balayi, Vol. 3, p 113-148. 

Garth Nettheim 2000. ‘The practical relevance of international law, CERD, and the UN Draft Declaration on the Rights of Indigenous Peoples’, in Bryan Keon-Cohen (ed) Native title in the new millennium: A selection of papers from the Native Title Representative Bodies Legal Conference, 16-20 April 2000, Aboriginal Studies Press, p 391-398. 

The Committee on the Elimination of Racial Discrimination 

Australia has coming under increasing criticism from the Committee on the Elimination of Racial Discrimination as a result of the Native Title Amendment Act 1998 (Cth) and the mandatory sentencing laws in the Northern Territory.  Extracted below are two press releases from the United Nations, an extract of Australia’s response, as well as a summary of Australia’s response.  

United Nations Press Release 22 March 2000  

United Nations Press Release 24 March 2000  

The Combined 13th and 14th Periodic Report of the Government of Australia under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination

Summary of the Combined 13th and 14th Periodic Report of the Government of Australia under Article 9 of the International Convention on the Elimination of all Forms of Racial Discrimination 

Background 

Australia ratified the Convention on the Elimination of all Forms of Racial Discrimination (hereafter ‘CERD’ or ‘the Convention’) on 30 September 1975 and implements it primarily through the Racial Discrimination Act 1975 (Cth).   

Countries that have ratified the Convention are obliged to submit comprehensive reports to CERD every four years and brief updating reports every two years regarding their implementation of and compliance with the Convention.  These reports are considered by the CERD Committee and concluding observations, which include both positive comments as well as concerns and recommendations, are provided to the country.   

This report, submitted to both the United Nations and Federal Parliament in late November 2003, covers the period since the last reporting period, which ended in June 1998 and addresses issues raised by the CERD Committee during its consideration of Australia’s 10th, 11th and 12th Reports.   

With respect to native title, the CERD Committee had expressed concerns about two particular issues.  First, the 1998 amendment to the Native Title Act that allows State/Territories to develop ‘alternative regimes’ in place of the right to negotiate.  Second, the effective participation of Indigenous communities in decisions affecting their rights.  The Report submitted to the CERD Committee discusses developments of native title generally as well as addressing these two particular issues.   

Australia’s Report 

Australia’s report starts by discussing the general implementation of the Convention with regard to native title.  It outlines the Indigenous Land Use Agreement (ILUA) provisions, suggesting that the ILUA provisions are substantially based on the model developed and proposed under the auspices of the Council for Aboriginal Reconciliation and the National Indigenous Working Group on Native Title.  The Report points to the ILUA provisions as the means through which Indigenous people have a ‘seat at the table’ in relation to future developments and negotiations.  The Report describes ILUAs as a positive development, a way for Indigenous people to negotiate beneficial outcomes for their community, such as employment and heritage protection.   

The Report notes the increasing emphasis Federal, State and Territory Governments are placing on consensual agreements and the simultaneous move away from litigation as a means of recognising native title.  In documenting the outcomes that native title, and in particular, the move towards agreement making, have delivered to Indigenous people, the Report contrasts the number of determinations of native title following the 1998 amendment to the Native Title Act (43 as at 30 June 2002) with the number of determinations prior to its enactment (five, including Mabo).  However, it is interesting to note the Report implies that this development is a result of the 1998 Amendments which underestimates the time needed to successfully resolve native title claims via litigation, mediation or negotiated settlement.  The criticisms of the State and Federal governments in opposing claims and withholding consent are, of course, absent from the Report.   

The Report acknowledges that principles of native title are still developing, making reference to offshore native title and the Croker decision, the reserved judgment of the High Court in cases concerning the nature of native title rights, extinguishment, the meaning of the expression ‘native title rights and interests’ and the ‘connection’ required to warrant recognition of native title rights and interests.   

The role of the Federal Government in providing funding for key agencies (the Federal Court and the National Native Title Tribunal), as well as funding Indigenous parties, third parties and its own involvement is described as ‘significant’.  However, the alleged imbalance in funding to NTRB’s and absence of funding to PBC’s is not mentioned.   

The Report briefly summarises previous CERD Committee criticisms regarding the compatibility of the amendments to the Native Title Act and Australia’s obligations under the Convention.  In particular, the CERD Committee expressed concern about the lack of effective participation of Indigenous communities in the formulation of the amendments.  The CERD Committee also expressed concern about the way in which the new validation, confirmation of extinguishment, primary production and right to negotiate provisions included in the amendments extinguished or impaired Indigenous title.  In response to CERD Committee’s concerns regarding the amendments to the Native Title Act, the Federal Government, both and the time of the initial concerns and in the present Report, argue that the amendments maintain “an appropriate balance between the rights of native title holders and the rights of others” (Report, p 25). 

In response to the CERD Committee’s criticisms, a Parliamentary Joint Committee (PJC) was formed to report on Australia’s obligations under the Convention and the Native Title Amendment Act 1998.  The PJC tabled its report in Parliament in June 2000 and it is referenced often in the Report to the CERD Committee.  

The Report quotes from the PJC report that “the amended Native Title Act is consistent with Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and that therefore no further amendments are necessary in order to ensure that Australia’s international obligations are complied with” (Report, p 26).     

In response to the CERD Committee’s concern that Indigenous people are not effectively participating in decisions that affect their rights, the Report quotes from the PJC’s findings that political rights in international instruments do not give rise to a right to participate in political process in a specific fashion (only a general right), and groups cannot require governments to undertake a particular form of consultation in relation to legislation.  The Report notes that this interpretation of political rights has been accepted by the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.  The Report goes on to argue that the 1998 amendments did not result in a reduction of rights, rather, they were necessary to provide certainty about when native title could continue to exist and when it had been extinguished.     

Finally, in response to CERD Committee comments regarding the alternative future act regimes and concern that the rights of Indigenous people would be reduced further, the Report points to the requirement that the Federal Minister must be satisfied that the criteria set out in the Native Title Act are met before a determination is made allowing the alternative regime to operate instead of the NTA.  In addition, the Report notes, all determinations of alternative regimes are subject to scrutiny by both Houses of the Federal Parliament and may be disallowed by both Houses of Parliament. 

In summary, the Report defends the state of native title in a fairly partial manner.  The criticisms and concerns of the CERD Committee are either not explored in any detail or are justified on the basis that they provide ‘certainty’ (the fact that this comes at the cost of Indigenous rights seems to be the whole point of CERD concerns but this is not addressed). There are no formal structures in international law that can force Australia to comply with the recommendations of the CERD Committee.  However, given the right political climate, the findings of the Committee have the potential to influence government policy and legislation in an informal way.  Unfortunately, the Report indicates the reluctance of the current Federal Government to be swayed by international concerns, even where those concerns are legitimate, and its determination to continue with its policies regardless of international disapproval. 

Resources 

Attorney-General’s Department, 1999. Australian Government response to the United Nations Committee on Racial Discrimination request for information under Article 9 paragraph 1 of the Convention on the Elimination of All Forms of Racial Discrimination.

Clarke, Jennifer 1997. ‘Racial non-discrimination standards and proposed amendments to the Native Title Act’, Land, Rights, Laws: Issues of Native Title, Vol. 1, No. 16, April 1997 

Dick, Darren and Margaret Donaldson 1999., ‘The compatibility of the amended Native Title Act 1993 (Cth) with the United Nations Convention on the Elimination of All Forms of Racial Discrimination’, Land, Rights, Laws: Issues of Native Title, Vol. 1, No. 29, Feb.  

Donaldson, Margaret and Yvette Park 2003. ‘The Racial Discrimination Act: Does it have a role in native title?’, Indigenous Law Bulletin, Vol. 5, No. 24, (April – May), p 8-10. 

Human Rights and Equal Opportunity Commission, The RDA and Native Title.  The Implications of Statutory Extinguishment: Some Questions and Answers, HREOC Website Publication. 

Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund 2000. ‘Undertakings freely given: Australia's international obligations to protect Indigenous rights: CERD and the Native Title Amendment Act 1998.  Report of the non-governmental members, Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund’, Parliament of the Commonwealth of Australia.   

McGlade, Hannah 2000. ‘Not invited to the negotiating table: The Native Title Amendment Act 1998 (Cth) and Indigenous peoples rights to political participation and self determination under international law’, Balayi, Vol. 1, No. 1 (Jan), p 97-113. 

Strelein, Lisa,  Michael Dodson and Jessica Weir 2003. ‘Understanding non-discrimination: Native title in a human rights context’, Balayi, Vol. 3, p 113-148.  

Triggs, Gillian 1999. ‘Australia’s Indigenous peoples and international law: Validity of the Native Title Amendment Act 1998 (Cth)’, Melbourne University Law Review, Vol. 23, p 372-415. 

General Resources 

Garth Nettheim 1995. ‘Native title and international law’, in M A Stephenson (ed.), Mabo: The Native Title Legislation, University of Queensland Press, p 36-48. 

Sarah Pritchard 1997. ‘Native title in an international perspective’, in Paul Patton (ed.) Sharing Country: Human Rights and Reconciliation after Wik: Proceedings of a public forum, University of Sydney, p 35-83.

Garth Nettheim 2000. ‘The practical relevance of international law, CERD, and the UN Draft Declaration on the Rights of Indigenous Peoples’, in Bryan Keon-Cohen (ed.) Native title in the new millennium: A selection of papers from the Native Title Representative Bodies Legal Conference, 16-20 April 2000, Aboriginal Studies Press, p 391-398.

Michael Kirby 1994. ‘In defence of Mabo’, in Murray Goot and Tim Rowse (eds.), Make a better offer: The politics of Mabo, Pluto Press, p 67-81. 

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