Inquiry into the Consistency of the Native Title Amendment Act 1998 with Australia’s international obligations under the Convention on the Elimination of all forms of Racial Discrimination (CERD) Feb 2000

This submission is very comprehensive and covers a number of different areas. The introduction states:

It is now well established in international law that States have a particular responsibility for protecting the rights of Indigenous peoples to be free from discrimination and ensuring the equal enjoyment of human rights, including those rights that are specific to Indigenous peoples. Australia's relationship with its Indigenous peoples is a measure of our standing in the international community. Recent criticisms of the treatment of Indigenous peoples' rights by Australia, under the Native Title Amendment Act 1998 (Cth) in particular, should be understood as a serious rebuke.

This submission addresses the Terms of Reference of the inquiry by the Parliamentary Joint Committee, including a review of Australia's international obligations; an assessment of the key findings of the Committee for the Elimination of Racial Discrimination in its Decision on Australia; a discussion of how Australia should respond to the criticisms, including the need for amendments; and a comment on the need for continued engagement by Australia with the Committee.

Emphasis has been placed on the first term of reference, assessing the veracity of the Committee's findings. Each of the provisions mentioned in the decision is considered in detail. This is followed by a discussion of some of the more fundamental concepts at issue, such as the concept of equality and the concept of native title at common law. It is the different understanding of these concepts that lies at the heart of Australia's failure to meet international standards for the recognition and protection of the rights of Indigenous peoples.

The Terms of Reference for the submission cover the following areas and each is addressed in detail:

  1. Introduction
  2. Australia's international obligations with respect to Racial Discrimination and the rights of Indigenous Peoples
  3. The Decision on Australia:
    1. Key findings in relation to the Native Title Act
    2. Validation of 'intermediate period' acts
    3. Confirmation of extinguishment
    4. Primary production activities
    5. Right to Negotiate
    6. Understanding the Decision of the Committee:
      1. The Concept of Equality
      2. Native Title at common law
  4. Responding to the decision
  5. Australia's relationship with the CERD Committee
  6. Conclusion
Last reviewed: 12 Sep 2016