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Native Title and the Racial Discrimination Act: Zita Antonios(1997)

Race Race Discrimination

Native Title and the Racial
Discrimination Act

Speech by Zita Antonios, Race
Discrimination Commissioner, Ethnic Community Council’s Forum on
Native Title, 30 October 1997; 19 November 1997

Native title is a
complex issue. It raises many important questions for Australian society
and we should not underestimate the complexity of the issues involved.
Critically, racial discrimination law provides important standards and
parameters that I believe can be used as a guide in achieving a result
that benefits all Australians.

One matter that needs
to be acknowledged from the outset is that the recognition of Indigenous
peoples’ right to land is critical to their survival. The ability
of Indigenous people to preserve their distinct identity is closely related
to their ability to gain recognition of their rights to land. Land provides
a basis for all Indigenous societies.

Additionally it needs
to be acknowledged that Indigenous Australians are the most disadvantaged
members of Australian society. Indigenous people are disadvantaged today
because of their history of dispossession. It needs to be remember that
until relatively recently, the official attitude towards Indigenous people
was that they were a dying race and that their best opportunity lay in
assimilation. Aboriginal people were segregated on mission settlements
and deliberately taken away from their traditional lands.

They lost languages,
culture, religion and all of this is tied to their loss of land. Recognition
of Indigenous peoples right to land is one very important way that their
current disadvantage can be addressed.

This process of dispossession
is not ancient history. The policy of assimilation by which Indigenous
children were removed from their parents was operating up to the 1970s.
This was part of the pattern of dispossession that has characterised the
relationship of Indigenous people with the rest of Australian society.

The recognition of
native title by The High Court in the Mabo decision in 1992 was a real
turning point.

Racial discrimination
law is important because it provides the only real bench mark with which
to assess policies affecting native title holders and other owners of
land in Australia.

Racial discrimination
law is not about preferring one racial group over another. It is about
according different racial groups’ rights full respect. This is the
main message that racial discrimination law gives government in the current
debate over Wik and the ten point plan. Indigenous Australians
do not want preferential treatment but they do demand equal respect for
their property rights. Respect for the rights of Indigenous people has
important consequences for us all.

The principle of
racial non-discrimination is a significant legal principle. It is federal
law in Australia and a basic principle of international law.

The Racial Discrimination
became law in 1975. It was the first commonwealth law dealing
with human rights and, in many ways, is the most comprehensive. It implements
Australia’s obligations under the International Convention on the
Elimination of all Forms of Racial Discrimination. The Act is a product
of its time and the emerging consciousness of the problem of racial discrimination.
In 1971, it was the United Nations Year Against Racism and also the year
in which violent protests took place in Australia and New Zealand against
the all white South African Springbok rugby team. Attitudes to race were
also changing due to post war migration. The existence of large communities
of non-English speaking backgrounds people fundamentally changed people’s
perception of what was acceptable in terms of race. There was also a growing
awareness of the injustice of the treatment of Indigenous Australians.
In many ways, the Racial Discrimination Act came about as a result
of the development of a multicultural society in Australia.

As mentioned earlier,
the International Convention on the Elimination of all Forms of Racial
Discrimination deals with racial non-discrimination. The existence of
a specific human rights treaty dealing with racial discrimination reflects
the importance of the prohibition against racial discrimination among
the international community. The International Covenant on Civil and Political
Rights also expressly prohibits discrimination.

The Commonwealth
has a good record in this area, it signed the International Convention
on the Elimination of all Forms of Racial Discrimination within 6 months
of it being open for signature. The Racial Discrimination Act implements
into Australian domestic law the main principles of the Convention. The
Commonwealth has also signed the International Covenant on Civil and Political

A common criticism
of international law and human rights law is that it is soft law. That
it is the statement of grand general principles and is not practical.
I do not accept this criticism. To take this approach in relation to the
principle of non-discrimination is extremely unwise for a number of reasons.

The Commonwealth
of Australia is internationally accountable for discrimination, including
by state or territory governments. It has accepted the jurisdiction of
the United Nations Human Rights Committee to consider complaints concerning
whether Australian law complies with the standards of the International
Covenant on Civil and Political Rights. Australia has also recognised
the jurisdiction of the Committee on the Elimination of Racial Discrimination.
This committee can hear complaints about racial discrimination.

Criticism of Australia
from such United Nations committees will seriously impair our credibility
as a racially tolerant society. Other nations will make an assessment
of the sort of place Australia is in view of how these committees judge

Many people have
asked me how the Federal Government can get away with bringing in laws
that breach the Racial Discrimination Act. The answer is that it
is a feature of federal law that more recent laws, if inconsistent, override
earlier laws. Legislation passed after the Racial Discrimination Act
has the power to override the RDA.

Generally, the Parliament
has been very cautious not to pass legislation that might be considered
racially discriminatory. As you may remember, there was some concern that
the legislation implementing the two year social security waiting period
for newly arrived residents had a racially discriminatory effect. This
concern was probably unfounded but the political and parliamentary debates
around the waiting period legislation showed that racial non-discrimination
was considered an extremely important principle of public policy. There
was real concern by all sides of politics that the principle of racial
non-discrimination should be complied with.

The current proposed
amendments to the native title act prompted by the Wik decision
are significant. Last night, the House of Representatives debated the
so called Wik Bill. One of the main issues was whether the bill complies
with the racial discrimination act. Many respected people have described
some of the measures proposed as racially discriminatory. The government
has not produced any legal advice to contradict the numerous QC’s
opinions that state that the bill is racially discriminatory and will
breach Australia’s human rights obligations. The main sense in which
the bill is said to breach the RDA is in the manner in which it advantages
one group, pastoralists, at the disadvantage of Indigenous land owners.

If the Parliament
proceeds with these measures there is a very real possibility that it
will breach the principles enshrined in the Racial Discrimination Act
and Australia’s international obligations. This deliberate breach
of the principle of racial non-discrimination will significantly lessen
the respect that the principle of racial non-discrimination has enjoyed.

You should all be
aware that the prohibition against racial discrimination provides an important
safeguard that constrains government in its treatment of ethnic groups.
The debate surrounding the waiting period legislation shows that the Act
provides an important constraint on government in implementing policies
that reduce the entitlements of otherwise politically vulnerable groups.
The implementation of the ten point plan will water down the RDA.
Australia’s ethnic communities should be concerned about what is
occurring with native title.

One of the difficulties
posed by native title is that it involves one racial group possessing
an interest in land that the rest of society cannot. Some people have
described native title as racially discriminatory. This view is wrong
and misinterprets some basic concerns of non-discrimination law.

The principle of
non-discrimination is not about treating all racial groups equally. Equality
is achieved when different groups with different needs are treated in
a way that respects those differences rather than ignores them. We all
know that different ethnic groups require different treatment which respects
their cultures, language and traditions if they are to be equal with other

This understanding
of equality is reflected in the International Convention and the RDA.
Both contain a provision that allows special measures. Special measures
permit action to be taken that assists disadvantaged racial groups. Special
measures recognise that historical patterns of racism entrench disadvantage
and that the prohibition of racial discrimination alone is not enough
to overcome racial inequality.

The current debate
over native title is really about extinguishment. This is where the protection
that racial discrimination law provides comes into play. Extinguishment
of native title needs to be understood for what it is. The extinguishment
of native title is the taking away of a person’s property rights
because they belong to a particular racial group.

The native title
act provides a way to recognise native title by our legal system. The
Native Title Act
does not create native title. It is a common law
right that exists due to an Indigenous group’s continuous traditional
association with their land.

The current legislative
arrangements for the recognition of native title are not unbalanced in
favour of native title claimants. While the Act does contain provisions
that benefit native title claimants such as the right to negotiate. It
also contains a comprehensive validation regime, that guarantees many
non-Indigenous peoples’ land titles and in effect extinguishes large
amounts of native title.

Contrary to some
people’s view, there has been in place clear and certain procedures
that all governments and stakeholders could use when dealing with land
where native title exists. As long as governments complied with the procedures
in the Native Title Act, they were not restricted in their dealings
in land.

The Wik judgment
contains an important principle for reconciliation between Indigenous
and non-Indigenous people. The Court’s judgment outlined the possibility
of co-existence. Namely that a pastoralist’s interest and a native
title holder’s interest in land could co-exist together. This is
the approach that I think we need to take, and will ultimately have to
adopt, in order to have true reconciliation.

updated 1 December 2001