International law

2.92       A consideration of international law is also useful to examine perspectives on how the rights of Indigenous peoples have changed over time. International law has progressively articulated more tangible human rights and freedoms for Indigenous peoples.

2.93       International law has relevance to native title claims at a number of levels. This provides the context for examining the specific issues in relation to connection requirements and proof of native title, addressed in Chapters 4–8 of this Report.

2.94       Finally, the section explores how international law may provide principles to guide the future evolution of native title law to support sustainable, long-term development for Aboriginal and Torres Strait Islander peoples.

2.95       The ALRC is to have particular regard to international law in its inquiries under its enabling legislation.[149] The Terms of Reference for the Inquiry identified Australia’s statement of support for the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’)[150] as a contextual factor for consideration.

International law and Indigenous peoples

2.96       The acknowledgment of Indigenous peoples as a distinct cultural group and polity at international law has accelerated. In 2009, James Anaya, Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples, noted, ‘groups identified as indigenous peoples are now important subjects of concern within the international program to advance rights’.[151]

2.97       Attention to the rights of Indigenous peoples emerged from the earlier platform promoting human rights and freedoms in international law in the mid-20th century.[152] The earliest international instruments focused upon individual political and civil rights. ‘Second generation’ rights encompass economic, social and cultural rights. The protections afforded on a cultural basis in such instruments tend to stress ‘rights to culture’, such as access to education and cultural expression, rather than rights held as a distinct cultural or collective group.

2.98       ‘Third generation’ rights, which include collectively-held group rights, have expressly included Indigenous peoples’ rights.[153] Increasingly, the norms underpinning human rights have been adopted in relation to Indigenous peoples:

This evolutionary international law and policy has provided virtual ground for a new and still developing regime of international standards and institutional activities specifically concerning the rights of indigenous peoples.[154]

2.99       The UNDRIP was adopted by the United Nations in 2007.[155] As a Declaration of the General Assembly, it is non-binding on state parties, but its significance extends beyond its formal legal status.[156]

2.100   The United Nations also has given emphasis to Indigenous peoples’ rights in its administrative machinery. Several bodies have been established that are dedicated to Indigenous peoples, including the Expert Mechanism on the Rights of Indigenous Peoples, the Special Rapporteur and the Permanent Forum on Indigenous Issues.[157]

2.101   Early human rights instruments, such as the International Covenant on Civil and Political Rights,[158] remain of importance for Indigenous peoples. The relevance of earlier Conventions has been re-entrenched as matters pertaining to Indigenous peoples have become prominent in United Nations forums. The Committee operating under the auspices of the International Convention on the Elimination of All Forms of Racial Discrimination,[159] for example, undertakes specific monitoring of indigenous issues.[160]

Adoption of treaties relevant to native title

2.102   Australia entered into a series of United Nations Conventions in the mid-20th century, which sought to give acknowledgement under international law to civil, political and cultural rights,[161] and to address various forms of discrimination.[162] The ALRC report Recognition of Aboriginal Customary Laws in 1986 indicated that the International Covenant on Civil and Political Rights put into effect internationally accepted principles of equality and non-discrimination.[163] Australia also signed the International Covenant of Economic Social and Cultural Rights (‘ICESCR’), ratifying the Convention in 1975 with no reservations.[164]

2.103   Accordingly, Australia has international obligations in respect of Aboriginal peoples and Torres Strait Islanders under a range of binding international law instruments. The use of the external affairs power in the Commonwealth Constitution to support legislation giving effect to international obligations, where the measures are proportionate, has been confirmed.[165] International developments in human rights law have informed Australian law and native title.[166]

2.104   The framework of human rights and international law, such as the monitoring process under the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), has continued to be of relevance to native title.[167] The CERD Committee has raised concerns about the strict regime of proof under the Native Title Act.[168] The UN ICESCR Committee noted the high cost, complexity and strict rules regulating native title claims, and the inadequate protection of indigenous cultural and intellectual property and language, in accordance with art 15 of that Covenant.[169]

Convention on the Elimination of All Forms of Racial Discrimination

2.105   In 1975, the Australian Government ratified the CERD.[170] This Treaty was given domestic effect in the Racial Discrimination Act 1975 (Cth).[171] In Australian law, treaties do not have the force of law unless they are given effect by statute.[172] Under art 1(4) of the CERD, an allowance is made for ‘[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms’.[173]

2.106   Section 8 of the Racial Discrimination Act 1975 (Cth) imports this aspect of the Convention and allows for the enactment of ‘special measures’. The High Court has considered the operation of the Racial Discrimination Act in native title cases.[174] Section 10 of the Racial Discrimination Act establishes ‘equality before the law’.[175]

2.107   The majority judgments in Mabo [No 2] drew on international law and evolving human rights precepts, together with concepts of equality and social justice. Brennan J noted that ‘it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination’.[176]

2.108   The Preamble of the Native Title Act references international law, ‘recognising international standards for the protection of universal human rights and fundamental freedoms.[177] The Native Title Act was held to be a valid exercise of the race power in Western Australia v Commonwealth.[178]

United Nations Declaration on the Rights of Indigenous Peoples

2.109   The UN Declaration on the Rights of Indigenous Peoples represented the culmination of over 20 years of negotiations by Indigenous peoples for the acceptance of their distinctive status under international law.[179] Commentators suggest that ‘the orthodox view seems to be that they are not new or special rights but an extension of what already exists in the human rights universe’.[180] The UNDRIP is seen as a contextualised elaboration of general human rights principles ‘as they relate to the specific historical, cultural and social circumstances of indigenous peoples’.[181]

2.110   The Law Council of Australia has adopted the position that

The UNDRIP, whilst lacking the status of a binding treaty, embodies many human rights principles already protected under international customary and treaty law and sets the minimum standards for States Parties’ interactions with the world’s indigenous peoples.[182]

2.111   The UNDRIP addresses specific concerns relating to indigenous life, integrity and security and territories.[183] The UNDRIP also includes provisions dealing with the capacity of Indigenous peoples to decide upon the membership of groups and issues of identity, and for the adoption of wide participatory and consultative norms for third parties in their dealings with Indigenous peoples.[184] A range of articles within the UNDRIP relate to indigenous rights to traditional lands and resources.

2.112   The National Congress of Australia’s First Peoples in its submission to the Inquiry[185] noted the following Articles:

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Australia’s statement of support on the UNDRIP

2.113   The UNDRIP was adopted by the UN General Assembly in New York on 13 September 2007.[186] Subsequently, the Australian Government issued a formal statement of support for the UNDRIP on 3 April 2009.[187] The prevailing view appears to be that UNDRIP, as a whole, does not have the status of customary international law.[188]

2.114   International law may be used by courts when construing the meaning of a statute or in instances of statutory ambiguity.[189] The High Court has referred to the UNDRIP in recent decisions, but on a fairly narrow basis.[190] Professor Davis advocates a positive role for the UNDRIP in statutory construction. The UNDRIP could, she suggests, ‘help to shift the dynamics of disputes so that the burden of proof was not always placed on indigenous peoples but rather on states’.[191]

Standard setting

2.115   The Australian Government and Australian Human Rights Commission delivered a joint statement at the United Nations Permanent Forum on Indigenous Issues in 2013, expressing commitment to

assisting Aboriginal and Torres Strait Islander peoples to achieve improved outcomes … [and] working with the Australian Human Rights Commission and the National Congress of Australia’s First Peoples to increase awareness of, and encourage dialogue about, the Declaration in policy development, program implementation and service delivery as a way to embed the Declaration in how business is done.[192]

2.116   Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda  has said:

I believe the ‘principled’ approach presents the most opportunities in the Australian context. I believe approaching the challenge of implementation through the principles rather than addressing each article individually will provide an analysis that is better understood by a broader cross section of Government and the community. Over and over I have said that the Declaration is not a program of work, it is a way of doing things or a process based on principles.[193]

2.117   The Commissioner stressed that a key principle was ‘participation in decision-making, underpinned by free, prior and informed consent and good faith’.[194]

2.118   Relevantly, the UNDRIP requires that ‘States, in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration’.[195]

2.119   The ALRC considers that a principled approach to developing best practice standards is an important consideration in a review of the Native Title Act. Its recommendations are developed in the light of the beneficial purposes of the Act, including its underpinning framework of international obligations referred to in the Preamble. The ALRC’s recommendations also reflect, where appropriate, emerging international best practice standards.

International law and sustainable futures

2.120   Professor Megan Davis argues that in the absence of entrenched rights and protections in Australia for indigenous peoples, ‘international standards whether binding or non-binding have had persuasive authority in the Australian legal and political system’.[196] The standards in the UNDRIP may assist the move towards sustainable, long-term social, economic and cultural development for Aboriginal and Torres Strait Islander peoples.

2.121   The UNDRIP principles may also provide the platform for engagement around native title issues, particularly as concepts such as free prior and informed consent and other norms of consultation and participation embodied in the UNDRIP become not only ‘a way of doing business’, but a principled way of moving forward. International jurisprudence around these aspects of the UNDRIP is developing rapidly.