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Native Title from the Perspective of International Standards'

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Native Title from the Perspective of International Standards' Native Title from the Perspective of International Standards' Sarah Pritchard* I. Introduction In 1992 in Mabo v Queensland (No 2)2 the High Court of Australia held that the common law of Australia recognises a form of native title to land. The Court held that pre-existing rights to land survived colonisation and continue to exist today, where they have not been extinguished by legislation or by an action of government which shows a clear and plain intention inconsistent with the continued exercise of native title rights. The Federal Government responded to Mabo (No 2) with the passage of the Native Title Act 1993 (Cth) (NTA). In 1996 the new Federal Government introduced a Bill proposing a number of amendments to the NTA. Also in 1996, in Wik Peoples v Queensland, the High Court held that the granting of a pastoral lease did not necessarily extinguish native title, and that the rights of native title holders can coexist with those of pastoral leaseholders.3 In 1997 the Government introduced a Native Title Amendment Bill incorporating amendments to the NT A proposed in 1996, as well as amendments arising specifically out of the High Court's Wik decision. After protracted rounds of debate in the Senate in November and December 1997, April 1998 and July 1998, the Native Title Amendment Bill was passed by the Senate on 8 July 1998. The Native Title Amendment Act 1998 (Cth) (NTAA) received the Royal Assent on 27 July. The commencement of its provisions on 30 September 1998 will conclude a turbulent period in Australian political life. Widely divergent assessments of its outcomes, especially its impact upon indigenous rights and interests, are likely to remain. In the present article it is proposed to examine some international standards and decisions which bear on the complex issues which recognition of native title presents for the (non-indigenous) Australian legal and political system. In asserting their rights, law and sovereignty, indigenous peoples are confronted by a number of difficult conceptual and political dilemmas. In Mabo (No 2), An earlier version of this article was delivered at the forum Sharing Country: Land Rights. Human Rights and Reconciliation after Wik, 28 February 1997, Research Institute for Humanities and Social Sciences, University of Sydney. • Senior Lecturer, Faculty of Law, University of New South Wales; Director, Australian Human Rights Centre; editor, Indigenous Peoples. The United Nations and Human Rights (1998). 2 Mabo v Queensland (No 2) (1992) 175 CLR 1 (hereafter referred to as Mabo (No 2). 3 Wik Peoples v State of Queensland (1996) 141 CLR 129 (hereafter referred to as Wik). 127 128 Australian Year Book ofInternational Law 1997 Wik and other native title cases, greater recognition of aspects of indigenous law has been sought within and subject to the non-indigenous legal system. The difficulty is, as Maori lawyer Moana Jackson has said, that such adaptations to non-indigenous law and sovereignty "maintain the dishonesty of illusion and redefme [indigenous] rights within parameters of the state".4 On the one hand, it is recognised that indigenous peoples have rights which came into existence in the pre-state/incorporation sphere. At the same time, the State is reassured that indigenous peoples are not autonomous from its authority and law.5 That is, indigenous claims to recognition are made in and against a legal system that views indigenous/non-indigenous relations from the vantage point of the colonising power, a system that demands that political and legal institutions do not threaten basic organising categories of the colonial legal imagination.6 Such dilemmas pertain also to the "discourse" in international law on human rights and, more particularly, indigenous peoples' rights. Nonetheless, indigenous peoples have recognised international legal constructions as a resource which can be used to reach out beyond the normative and political boundaries of the State and its law. Increasingly, the search for legal spaces in which indigenous identities can be negotiated and constructed by indigenous peoples themselves has been carried out in international fora and with reference to international norms. Former Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, speaks of the "project of fully utilising the international human rights system".1 Noting that the Racial Discrimination Act 1975 (Cth) (RDA), the Land Rights (Northern Territory) Act 1976 (Cth) and the 1992 decision of the High Court in Mabo (No 2) are frrmly grounded in international law, Dodson claims that it "is all about strategy and using every tool available".8 Native American lawyer Robert Williams Jnr has described the emergence of indigenous rights discourse in international fora in this way: In challenging the exclusive jurisdictional claims of settler state governments to define the terms of their survival in the world, indigenous peoples have given voice to a new vision of the human rights that matter to them under international law. This vision seeks international legal recognition of indigenous peoples' collective human rights to exist as culturally autonomous peoples, to continue in the peaceful possession of their traditionally occupied territories and to exercise greater self-determining autonomy over their ways oflife. 4 lackson M, "Changing Realities, Unchanging Truths", Commission on Folk Law and Legal Pluralism, Proceedings of the papers presented to the Congress at Victoria University of Wellington (1992) P 443 at 454. 5 Von Benda-Beckmann F, "Citizens, Strangers and Indigenous Peoples: Conceptual Politics and Legal Pluralism" (1997) 9 Law and Anthropology I at 27 et seq. 6 Macklem P, "Ethnonationalism, Aboriginal Identities, and the Law" in Levin M ed, Ethnicity and Aboriginality: Case Studies in Ethnonationalism (1993) p I at I!. 7 Dodson M, "Linking International Standards with Contemporary Concerns of Aboriginal and Torres Strait Islander Peoples" in Pritchard S ed, Indigenous Peoples, the United Nations and Human Rights (1998) P 18 at 21. 8 Ibid. .
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