Australian Indigenous Law Reporter
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From 17 February-1 March 1997, the UN Special Rapporteur on the Question of Religious Intolerance visited Australia at the invitation of the Australian authorities. During his mission to Australia, the Special Rapporteur examined and adopted a number of conclusions and recommendations on the situation of Aborigines with respect to religious matters. Extracts from the Special Rapporteur's report are reproduced below (UN Doc E/CN 4/1998/6/Add 1).
1. From 17 February to 1 March 1997, the Special Rapporteur on the question of religious intolerance visited Australia at the invitation of the Australian authorities in accordance with his mandate under Commission on Human Rights resolution 1995/23 (encouraging Governments to invite the Special Rapporteur to visit their countries to enable him to fulfil his mandate even more effectively) and General Assembly resolution 50/183 of 22 December 1995 (inviting the Special Rapporteur, within the terms of his mandate and in the context of the formulation of recommendations, to take into account the experiences of various countries and the most effective measures in promoting religious freedom and countering all forms of intolerance).
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6. During his visit, the Special Rapporteur focused his analysis on the situation of tolerance and non-discrimination based on religion or belief in the Australian legal system and in Australian society.
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76. Within the framework of the official process of reconciliation with the Aboriginals (who were the victims in the past of discriminatory policies and practices), the Special Rapporteur wanted to examine the situation of Aboriginals with respect to religious and non-religious matters.
77. The land and sacred sites hold a fundamental significance for the Aboriginals, insofar as their beliefs are identified with the land. A basic question is therefore the recognition of an Aboriginal religion intrinsically related to the land within the framework of an Australian society essentially based on Judeo-Christian and western values. In the view of the Aboriginals, maintaining the integrity of the land takes on a religious dimension, which therefore has to be preserved. In more recent years, steps have been taken by the Federal and State Governments to recognise and protect the rights of Aboriginals to their lands and sacred sites, most importantly through the Mabo case and the Native Title Act 1993.
78. In 1992, the High Court of Australia held in the Mabo (No. 2) case that the common law recognises some form of native title in accordance with the laws and customs of the Aboriginals. They found that Aboriginal peoples may have maintained continued links with that land under traditional law.
79. In response to the Mabo decision, the Commonwealth Government enacted the Native Title Act 1993. The Act defines native title as "the communal, group or individual rights and interests of the Aboriginal peoples or Torres Strait Islanders in relation to land or water" where:
"(a) The rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;
(b) The Aboriginal peoples or Torres Strait Islanders, by those laws or customs, have a connection with the land or waters; and
(c) The rights or interests are recognised by the common law of Australia."
80. The main features of the Act are that it:
"Recognises and protects the existence of native title rights and interests in the common law of Australia;
Validates past Commonwealth acts in relation to land which might otherwise have been invalid as a result of the High Court's decision;
Provides processes for determining where native title still exists, for future dealings in native title land, and for compensation for extinguishment of native title; and
Enables compatible State and Territory laws to be recognised."
81. Native title is also protected by the Racial Discrimination Act (Cth). The Act requires that, to extinguish native title, the Government must follow the procedures for extinguishing other interests in land, as to extinguish native title alone would be racially discriminatory.
82. Despite these steps to recognise and protect the rights of Aboriginal and Torres Strait Islander peoples to their land and sacred sites, however, it had been argued that many Aboriginal and Torres Strait Islander peoples are unable to benefit from these improvements because in the past they have been dispossessed of their land which has been alienated, their ties to it have been broken and their traditional land-lore has been lost.
83. It has also been argued that the Mabo decision and the Native Title Act do not provide sufficient protection for Aboriginal and Torres Strait Islander peoples to own and control their culture and heritage. Some Aboriginal groups, such as the New South Wales Land Council, have called for further legislation to transfer the regulation of Aboriginal culture and heritage to Aboriginal control, particularly with respect to sacred and significant sites and the return of human remains.
84. Mick Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, also expressed grave concern that the Federal Government's proposed amendments to the Native Title Act (NTA) breached its commitment to respect the principles of the Racial Discrimination Act. "Proposals regarding the expansion of pastoral leases and the erosion of the right to negotiate would override the provisions of the Racial Discrimination Act (RDA). Far from enhancing the operation of the NTA, I am apprehensive that the Government's amendments will sow the seeds of litigation throughout Australia. This will help none of us."
85. "The pastoral lease amendments allow Governments to expand pastoral lease interests and uses, while denying affected title holders the procedural protections which would apply to ordinary title holders in the same circumstances. The amendments are not necessary to protect the existing interests of pastoralists. They are safe under the current Act", Mick Dodson said.
86. Proposals to reduce the scope of the right to negotiate were also criticised on human rights grounds. "The Government has proposed removing the right to negotiate from exploration and prospecting titles, allowing ministerial intervention prior to determination of claims, making the right to negotiate a `once only' process and reducing the time for negotiation and arbitration", Mick Dodson explained.
87. "The Government mistakenly regards the right to negotiate as being a special `gift' to indigenous peoples, which it can take away as it pleases. The right to negotiate is a recognition of actual native title rights, and its preservation is essential if native title is to be accorded true equality of protection. Erosion of the right to negotiate would remove the balance of the NTA, which protects the titles of all other Australians."
88. Mick Dodson also raised concerns about the practical inability of native title holders to protect their rights when activity such as mining is proposed. This is due to the introduction of a very onerous registration test, which must be satisfied by claimants before they are even entitled to negotiate over, not stop, development of land under claim.
89. "Indigenous peoples are keen to find ways of facilitating land use agreements." Mick Dodson put forward positive suggestions for enhancing the role of representative bodies and encouraging mediation and the development of indigenous land use agreements. "It is critical that the Government recognises that encouragement of negotiation and agreement is the way to achieve genuine `workability' and `certainty' while respecting the rights of all Australians. The real challenge is to get away from litigation and to get agreement on practical proposals for development."
90. Some concern may also be felt at the opposition of many politicians to the High Court decision of 23 December 1996 (Wik decision) [2(1) AILR 35], which held that a grant of a pastoral lease did not necessarily have the effect of extinguishing native title of the type earlier recognised by the Court in the Mabo v Queensland case.
91. Many different kinds of protection, both specific and general, direct and indirect, are given to the land and to sacred sites, including sacred objects, and therefore to their religious dimension. They take the form either of regional agreements and legislation ensuring the protection and management of Aboriginal lands or Commonwealth and State and Territory laws on property and the cultural heritage. These forms of protection are the expression of an official policy in favour of Aboriginals, based on well-developed legislation. There are still a number of difficulties, however, related to loopholes and shortcomings in the laws and to interference with their objective, mainly owing to conflicts of interest.
92. Regarding the loopholes and shortcomings in the law, in the first place and in general, there is the problem of its complexity, particularly with respect to relations between Federal and State systems, that is, between federal Laws, which are few and protective, and State and Territory laws, which are many, uneven in the degree of protection they afford and sometimes inadequate in relation to Commonwealth standards.
93. One criticism which is often put forward is the inability of these laws derived from a Western legal system to take account of Aboriginal values. A basic difficulty arises from the fact that, under some laws, Aboriginals have to prove the religious significance of sites and their importance; partly this is difficult owing to different approaches by different Aboriginal groups to sacred sites and to the fact that knowledge of the sites is restricted to a few gender-specific individuals and partly it conflicts with some Aboriginal values and customs, including the importance given to secrecy.
94. An example which illustrates these difficulties is the Hindmarsh Island case. This case concerned the opposition of a group of Ngarrindjeri women to the construction of a bridge across Hindmarsh Island, on the grounds that sacred sites would be affected. Attempts by the authorities to check the existence of these sacred sites have so far proved ineffective as a result of the shortcomings and loopholes in the laws governing the case, because some of the information held by a restricted number of women is secret and also because the information which is available can only be given to other women, which would imply that the rapporteur of the commissions of inquiry and the Minister responsible for Aboriginals to whom the report is to be submitted should be women.
95. Judge Elizabeth Evatt, in charge of revising the Aboriginal and Torres
Strait Islander Heritage Protection Act
[2(3) AILR 433],
recommended that Aboriginal values and traditions regarding the protection of
information should be recognised in the law, so
that the notion of secrecy is
legally recognised and respected, while allowing for the communication of
non-secret information.
96. With regard to criticism of the protective effects of the law, many non-governmental commentators pointed out that, as a result of loopholes and shortcomings in the law, the authorities were able to interfere with the religion of Aboriginals, who were asked to prove the religious significance of a site and its importance and to reveal religious secrets. More protective legislation is required, incorporating Judge Evatt's recommendations, according to non-governmental representatives, in order to prevent any impairment of religion and to ensure that discretionary power in the hands of the authorities, is shared with the Aboriginals.
97. The protection of lands and sacred sites also raises the issue of returning objects of religious significance, including sacred objects, non-sacred but valuable objects, and human remains.
98. In 1990, the ministers of the Commonwealth, States and Territories adopted a policy based on the recognition of Aboriginal cultural property, which gave priority to the return of human remains and cultural property to the Aboriginals. Legislation was passed for that purpose and other acts were to be amended. Some Australian museums have returned collections of sacred objects and valuables, as well as human remains, to their original owners (one example being the return in 1988 by the Victoria Museum and National Museum of Australia of the Murray Black collection of some 1,300 objects), while others have sought to cooperate with Aboriginal communities, particularly by managing collections and cultural presentations so as to ensure that secret/sacred items are handled with respect and sensitivity. Nevertheless, the repatriation of objects held by museums and institutions abroad, especially in Britain, is slow, despite some improvements. For example, national museums in the United Kingdom have claimed that difficulties have arisen due to legislation which prevents the disposal of their collections. In an interview, the Minister for Foreign Affairs recalled that the Australian Government's policy was to seek the repatriation of Aboriginal property.
99. Despite the official policy of conciliation towards Aboriginals, the latter still appear to occupy a marginal place in economic and social areas, as shown by the frequent occurrences of alcoholism, domestic violence and unemployment in those communities.
100.In the area of employment, there is said to be a reluctance on the part of private employers due to mistrust of Aboriginals, who have to fulfil religious duties, sometimes for long periods of time, for instance on the occasion of a death or of religious ceremonies. According to this view, it would be difficult to reconcile religious practice and the exercise of uninterrupted professional activity. Clearly there can be clashes between western values and Aboriginal values. In fact, a campaign to inform non-Aboriginal employers would be one way of demonstrating the Aboriginals' wish to work while practising their religion. It is quite possible to reach work agreements allowing special leave arrangements for the Aboriginals. Like other religious communities, the latter also claim recognition of their religious days in the workplace. In public employment, the principle of positive discrimination in favour of Aboriginals has been applied, especially to allow them access to teaching jobs, thus showing that it is not impossible to reconcile employment and Aboriginal religious practices.
101. In the field of education, the authorities' policy is aimed at the full integration, fulfilment and recognition of Aboriginals, partly by facilitating their access to education as students and teachers and partly through school curricula making non-Aboriginals aware of Aboriginal culture and religion. Some Aboriginals have expressed the wish to be more closely consulted in the preparation of school curricula.
102. The authorities' efforts to improve the situation of Aboriginals are therefore genuine, but need strengthening to ensure that economic interests (employment of Aboriginals, economic development projects and sacred sites) are fairly reconciled with those of the Aboriginals and to ensure that expressions of political intolerance (such as the speech by MP Pauline Hanson) are not allowed to affect the fragile, slow process of recognition and assertion of Aboriginals in Australian society.
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120. With regard to Aboriginals, the official policy of reconciliation should be pursued and further strengthened in the area of religion. It would be useful to reaffirm recognition of Aboriginal beliefs as religious beliefs and to reflect that recognition in particular in surveys of religious membership in the country.
121. With regard to native titles, the Special Rapporteur wishes to reiterate the concern of the Aboriginal and Torres Strait Islander Social Justice Commissioner with regard to the Federal Government's proposed amendments and respect for the High Court's Wik decision. Native titles are in fact fundamental and legislative and jurisprudential advances in this respect must not be called into question.
122. With regard to legislation, while noting with satisfaction the legal and legislative arrangements developed and implemented for the protection of land and sacred sites, including religious objects, and for the return of the religious and cultural heritage, the Special Rapporteur recommends ensuring uniformity of such legislation at the Federal and State levels, as well as its effectiveness in relation to its assigned objective, particularly by identifying and remedying shortcomings and loopholes. The recommendations of Judge E Evatt should be heeded, to ensure that Aboriginal values are fully taken into account in legislation, particularly the notion of the secrecy of certain types of information and their circulation and publication, according to the gender and function of a limited group of persons. It is further recommended that current legislation should fully guarantee that Aboriginals participate and share in decision-making on an equal footing with the authorities concerned.
123. With regard to the return of objects belonging to the Aboriginals' cultural and religious heritage which are located abroad, especially in museums, the States concerned should be encouraged to cooperate by removing any political, legislative or other obstacle to the return of the objects as quickly as possible.
124. With regard to conflicts of economic, political and religious interests, the Special Rapporteur would like to recall that freedom of belief, in the present case, that of the Aboriginals, constitutes a basic issue and deserves even stronger protection. The freedom to manifest belief is also recognised, but may be subject to limitations insofar as these are strictly necessary, as stipulated in article 1, para. 3, of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and article 18 of the International Covenant on Civil and Political Rights.
125. The manifestation of belief therefore needs to be reconciled with political, economic and other rights and concerns, which are just as legitimate, through dialogue and respect for all parties, including Aboriginals. With regard to the Hindmarsh Island case, the Special Rapporteur calls for a serene approach to the matter and a conciliatory settlement between the parties.
126. Lastly, the Special Rapporteur welcomes the authorities' efforts to ensure that Aboriginals cease to be an excluded community and enjoy all their rights, especially economic, social and cultural rights, by applying the principle of positive discrimination. The private sector, especially employers, should echo this policy and be aware of the importance of Aboriginal beliefs. Considering that Aboriginals are in general economically marginalised and affected by unemployment, sometimes as a result of their religious constraints, special protection should be given to that community, especially by encouraging a change in attitudes in order to arrive at a compromise between economic considerations and religious practice.
127. Generally speaking, the Aboriginal question should be considered with more understanding in Australian society, with a view to eliminating any surviving forms of racism related to historic, social and economic factors which also affect religion
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/5.html