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Indigenous people of Australia welcome CERD [Committee on the Elimination of All Forms of Racial Discrimination] findings.



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Media Release

Aboriginal and Torres Strait Islander Commission (ATSIC)

 

18 March 1999

Indigenous People of Australia Welcome CERD Findings

Statement issued by :

  • Commissioner Geoff Clark, Commissioner for Native Title, Aboriginal and Torres Strait Isla nder Commission (ATSIC) mobile telephone 0417 849 542, and
  • Mr Les Malezer, Deputy Chair of the National Indigenous Working Group on Native Title (NIWG) mobile telephone 0419 710 720

This statement may be used as a direct quote from each of the above perso ns. Both persons are/ have been in attendance at the CERD meeting in Geneva, Switzerland.

QUOTE

We congratulate the United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) for its astute decision that the Native Title Act is in breach of the International Convention on the Elimination of All Forms of Racial Discrimination.

In our view the Committee provides an unambiguous statement that the Australian Government is committing racial discrimination and is in breach of Articles 2 and 5 of the International Treaty on the Elimination of All Forms of Racial Discrimination.

The Committee also finds that the government has failed to confirm with the Committees General Recommendation XXIII regarding racial discrimination against Indigenous Peoples.

We consider the Committee members have, throughout the meeting, clearly expressed their concerns that the legislation is in breach of the International Convention because it:

  • does not protect the land ownership of the Aboriginal Peoples ;
  • i s clearly the instrument which increases the legal ownership rights over land held by non-Aboriginal parties, such as pastoralists ;
  • increases the other land ownership rights to the corresponding detriment of the Aboriginal Peoples ;
  • in all instances where invalid titles occur through duplication of ownership, prefers the interests in land of non-Aboriginal people over the interests of Aboriginal people ;
  • manifestly interferes with Aboriginal landowners rights to negotiate their interests over their land ; and
  • does not have the informed consent of the Aboriginal Peoples.

The concerns of the members of the Committee are an accurate reflection of the deep concerns expressed by all fair-minded Australians, who opposed the government’s amendments to the original Native Title Act.

The Committee has proposed that the Australian Government take urgent action to redress the racial discrimination.

The message now to all Australians is clear. The Native Title Act is a racist Act, and Aboriginal Peoples are the victims of government racism.

The national, racist laws of Australia are not acceptable, and cannot be tolerated in a global community which is committed to human rights as defined in the Universal Declaration of Human Rights and the related instruments.

We call upon the Australian Government to agree to enter into immediate negotiations with the Aboriginal Peoples to form a statutory and constitutional regime for the protection of the land rights of Aboriginal Peoples and for the recognition and protection of other Indigenous Rights.

We also call upon the Australian Government to endorse the invitation issued to the Committee for a visit to Australia in the next three months.

The Committee has indicated its commitment to obtaining a more detailed understanding of the facts of the Native Title Act and the effects of the Native Title Act.

The Committee has also expressed its concern that all Peoples should have a good understanding of the role and the workings of the Committee.

Finally, we congratulate the hard work by the many people and organisations who have pursued justice for the Aboriginal Peoples.

In particular we mention the Aboriginal and Torres Strait Islander Commission (ATSIC), the National Indigenous Working Group on Native Title (NIWG), the Aboriginal Tent Embassy, Indigenous organisations, groups and individuals, Australians for Native Title and Reconciliation (ANTAR), NGOs, parliamentarians, religious leaders, and concerned individuals for their tireless campaign.

Congratulations must go to the Board of the Aboriginal and Torres Strait Islander Commission for its refusal to withdraw its international actions under direct pressure from the Australian Government and Minister for Aboriginal and Torres Strait Islander Affairs.

END QUOTE

Attention radio news editors: Two audio grabs by Commissioner Geoff Clark are available by dialling 02 6262 5850, enter access code 3000.

Attachments:

  • Australia: Decision of the Committee on the Elimination of Racial Discrimination CERD/C/54/Misc .40/Rev.1
  • Articles 2 & 5 of the International Convention on the Elimination of All Forms of Racial Discrimination

 

Committee on the Elimination of Racial Discrimination -- 18 March 1999 

CERD/C/54/Misc.40/Rev.2 -- 54 th Session  

 

Unedited version 

1-19 March 1999 

Australia

Decision

1. Acting under its early warning procedures, the Committee adopted Decision 1(53) on Australia on 11 August 1998 (A/53/18, para. 22), requesting information from the State Party regarding three areas of concern: proposed changes to the 1993 Native Title Act; changes of policy as to Aboriginal land rights; and changes in the position or function of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The Committee welcomes the full and thorough reply of the Commonwealth Government of Australia to this request for information (CERD/C/347). The Committee also appreciates the dialogue with the delegation from the State party at the Committee’s 1323 rd and 1324 th meetings to respond to additional questions posed by the Committee in regard to the State Party’s submission.

2. The Committee received similarly detailed and useful comments from the Acting Aboriginal and Torres and Strait Islander Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission; the Aboriginal and Torres Strait Islander Commission; members of the Parliament and Senate of Australia.

3. The Committee recognizes that within the broad range of discriminatory practices that have long been directed against Australia’s Aboriginal and Torres Strait Islander peoples, the effects of Australia’s racially discriminatory land practices have endured as an acute impairment of the rights of Australia’s indigenous communities.

4. The Committee recognizes further that the land rights of indigenous peoples are unique and encompass a traditional and cultural identification of the indigenous peoples with their land that has been generally recognized.

5. In its last Concluding Observations on the previous report of Australia, the Committee welcomed the attention paid by the Australian judiciary to the implementation of the Convention. (A/49/18, para. 540) The Committee also welcomed the decision of the High Court of Australia in the case of Mabo v. Queensland , noting that in recognizing the survival of indigenous title to land where such title had not otherwise been validly extinguished, the High Court case constituted a significant development in the recognition of Indigenous rights under the Convention. The Committee welcomed, further, the Native Title Act of 1993, which provided a framework for the continued recognition of indigenous land rights following the precedent established in the Mabo case.

6. The Committee, having considered a series of new amendments to the Native Title Act, as adopted in 1998, expresses concern over the compatibility of the Native Title Act, as currently amended, with the State Party’s international obligations under the Convention. While the original Native Title Act recognizes and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act. While the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title.

7. The Committee notes, in particular, four specific provisions that discriminate against indigenous title-holders under the newly amended Act. These include: the Acts’s "validation" provisions; the "confirmation of extinguishment" provisions; the primary production upgrade provisions; and restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses.

8. These provisions raise concerns that the amended Act appears to wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act. As such, the amended Act cannot be considered to be a special measure within the meaning of Articles 1(4) and 2(2) of the Convention and raises concerns about the State Party’s compliance with Articles 2 and 5 of the Convention.

9. The lack of effective participation by indigenous communities in the formulation of the amendments also raises concerns with respect to the State Party’s compliance with its obligations under Article 5(c) of the Convention. Calling upon States Parties t o "recognise and protect the rights of indigenous peoples to own, develop, control and use their common lands, territories and resources," the Committee , in its General Recommendation XXIII, stressed the importance of ensuring "that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent."

10. While welcoming the State Party’s recognition of the important role that has been played by the Human Rights and Equal Opportunity Commission, the Committee also notes with concern the State Party’s proposed changes to the overall structure of the Commission; abolishing the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner and assigning those functions to a generalist Deputy President. The Committee strongly encourages the State Party to consider all possible effects of such a restructuring, including whether the new Deputy President would have sufficient opportunity to address in an adequate manner the full range of issues regarding indigenous peoples warranting attention. Consideration should be given to the additional benefits of an appropriately qualified specialist position to address these matters, given the continuing political, economic and social marginalization of the indigenous community of Australia.

11. The Committee calls on the State Party to address these concerns as a matter of utmost urgency. Most importantly, in conformity with the Committee’s General Recommendation XXIII concerning Indigenous Peoples, the Committee urges the State Party to suspend implementation of the 1998 amendments and re-open discussions with the representatives of the 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.

12. In light of the urgency and fundamental importance of these matters, and taking into acco unt the willingness expressed by the State Party to continue the dialogue with the Committee over these provisions, the Committee decides to keep this matter on its agenda under its early warning and urgent action procedures to be reviewed again at its fifty-fifth session.

International Convention on the Elimination of All Forms of Racial Discrimination

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; (c) Political rights, in particular the rights to participate in elections--to vote and to stand for election--on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one's own, and to return to one's country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association;

(e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) The right to form and join trade unions; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.

 

 

 

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