The Native Title Act and Australia's international obligations
Australia's international obligations in relation to human rights, particularly with respect to the rights of minorities and Indigenous peoples, was a significant consideration for the High Court in the Mabo decision. The Court drew from international human rights standards to examine Australia's approach to Indigenous peoples rights to land. It is likely that the Parliament could also have relied on these international obligations to justify the introduction of the Native Title Act under the external affairs power section 51(29). Australia is not a signatory to all of the international instruments that pertain to the rights of Indigenous peoples, the most significant of which, namely The Draft Declaration on the Rights of Indigenous Peoples, is still in the drafting processes. (But see also ILO Convention 169 Concerning Indigenous and Tribal peoples in Independent Countries).
However, there are provisions of the human rights instruments, to which Australia is a signatory, that would warrant the protection of Indigenous peoples rights to land. Articles of the Convention on the Elimination of All Forms of Racial Discrimination recognise the right not to be discriminated against in the enjoyment of fundamental rights such as the right to own property alone or in association with others and the right to inherit property. This right is recognised in the Universal Declaration on Human Rights as well as the International Convention on Economic Social and Cultural Rights. This later Convention also recognises the rights of minorities to freely exercise their culture in association with others. For Indigenous peoples, where land is integral to the culture, this would encompass the right not to be arbitrarily dispossessed.
However, there are provisions of the human rights instruments, to which Australia is a signatory, that would warrant the protection of Indigenous peoples rights to land. Articles of the Convention on the Elimination of All Forms of Racial Discrimination recognise the right not to be discriminated against in the enjoyment of fundamental rights such as the right to own property alone or in association with others and the right to inherit property. This right is recognised in the Universal Declaration on Human Rights as well as the International Convention on Economic Social and Cultural Rights. This later Convention also recognises the rights of minorities to freely exercise their culture in association with others. For Indigenous peoples, where land is integral to the culture, this would encompass the right not to be arbitrarily dispossessed.
Keywords: High Court of Australia, human rights, International Convention, International law, Mabo Case, Mabo judgement, native title, Native Title Act (1993), United Nations, 1993
Author: Strelein, Lisa