|
Navigation: Previous Page | Contents | Next Page
Native
Title Amendment (Reform) Bill 2014
Sponsor: Senator Siewert
Introduced: Senate, 4 March 2014 Summary of committee
concerns
1.42
The committee draws
Senator Siewert's attention to the consideration of 'special measures' in its Eleventh
Report of 2013. The committee also seeks further information in relation to
the provisions dealing with agreements to disregard prior extinguishment of
native title. Overview
1.43
This bill
proposes to amend the Native Title Act 1993 to:
- provide for the
right to negotiate provisions of the Native Title Act to apply to offshore
areas;
- strengthen and
clarify the meaning of negotiations in good faith in relation to the right to
negotiate provisions in the Native Title Act;
- provide for
extinguishment over nature reserves including national parks to be disregarded,
and for extinguishment to be disregarded by agreement;
- insert a
presumption of continuity in relation to the observance of traditional laws and
customs; and
- expressly
provide that native title rights and interests may be of a commercial nature.
1.44
The explanatory
memorandum states that the proposed measures are reforms that were promoted
'for a number of years by relevant stakeholders, most notably in submissions to
the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into
the Native Title Amendment Bill 2009 and the 2009 Native Title Report from the
Aboriginal and Torres Strait Islander Social Justice Commissioner'. Compatibility with human
rights
Statement
of compatibility
1.45
The bill is
accompanied by a statement of compatibility that states that the bill advances
the human rights of Aboriginal and Torres Strait Islander peoples by promoting
the right to culture,[1]
and the right to equality and non-discrimination.[2] The statement of
compatibility notes that the bill also promotes the land-related rights
outlined in the UN Declaration of the Rights of Indigenous Peoples.[3]
1.46
The statement's
overall assessment is that the regulation is compatible with human rights
because it is a special measure designed to secure to Aboriginal people the
full and equal enjoyment of human rights and fundamental freedoms.
Committee
view on compatibility
Right to
self-determination
1.47
The committee
notes that, in addition to the rights mentioned in the statement of
compatibility, the bill also engages and promotes the right to
self-determination guaranteed by articles 1 of the ICCPR and the ICESCR and
which provides the right of all peoples to 'freely determine their political
status and freely pursue their economic, social and cultural development.' This
is a collective right and, in the Australian context, is particularly relevant
to Aboriginal
and Torres Strait Islander peoples.
Special
measures
1.48
The
committee notes that the statement of compatibility categorises these
amendments as 'special measures' within the meaning of article 1(4) of the
ICERD.
1.49
In its Eleventh
Report of 2013 our predecessor committee considered the Stronger Futures
in the Northern Territory Act 2012 and related legislation. In its report
the committee considered the classification of measures as 'special measures'
within the meaning of the ICERD.
1.50
The committee's
consideration of the criteria to be satisfied in order for a measure to be
characterised as a 'special measure' is set out at pages 21 to 31 of that
report. In particular, the committee noted that, as a matter of international
law (including under the ICERD), measures based on race or ethnicity do not
invariably amount to discrimination that can only be considered legitimate if
they can be justified as 'special measures'. The relevant question is whether
there is an objective and reasonable justification for the differential
treatment. Under international law, the recognition of the traditional land
rights of Indigenous peoples and legislative structures to give effect to those
rights are generally considered to be non-discriminatory; such measures are not
'special measures' within the meaning of the ICERD. The committee noted that
there was a difference between international law and Australian law in this
regard, as represented by the High Court's interpretation of the Racial
Discrimination Act 1975.[4]
1.51
The committee
expressed concern 'at the tendency for explanatory memoranda to invoke the
category of 'special measures' as a justification for legislation that involves
differential treatment based on race or ethnic origin, without sufficient
analysis of whether the differential treatment may be justified as legitimate
differential treatment based on reasonable and objective criteria.'[5]
Agreements
to disregard prior extinguishment
1.52
The bill
provides that at any time prior to a native title determination the applicant
and a government party may make an agreement that the extinguishment of native
title rights and interests are to be disregarded.[6]
1.53
It is not clear
whether other persons whose interests may be affected would be consulted or
notified before native title is agreed to be revived. Neither the statement of
compatibility nor the explanatory memorandum addresses this issue.
1.54
The
committee intends to write to Senator Siewert to seek clarification whether the
proposals in relation to agreements to disregard prior extinguishment could adversely
impact on other persons whose interests may be affected.
Navigation: Previous Page | Contents | Next Page
Top
|