Twilight seminar: Race Discrimination, the


Intervention and Indigenous Australians

 


5 pm, Tuesday 24 March 2009: Speakers George Newhouse; Greg Marks

_____________________________________________________________________________

Speaking Notes Greg Marks

Firstly, an historical perspective:

International law arguments

The Northern Territory Emergency Intervention (NTER)

But what is happening here is not really about securing government assets.

 

------------------------------------------------------------

[1] CERD Committee, General Recommendation XXIII: Indigenous Peoples, UN Doc A/52/18.

[2] Balakrishnan Rajagopal, ‘Martti Koskenniemi's From Apology to Utopia: a reflection', 7 German Law Journal No. 12 (1 December 2006).

[3] CERD/C/AUS/CO/14/Add.1 16 May 2006.

[4] CERD, Summary Record, UN doc CERD/C/SR.1235 5 August 1997.

[5] UNGA Un Doc A/HRC/7/19/Add.1 20 February 2008.

[6] Altman J, ‘In search of an outstations policy for Indigenous Australians', CAEPR WP 34/2006, pii.

Reproduced with the kind permission of Greg Marks


Information about the Seminar and its Speakers:

About the Seminar:
In January 2009 a number of Aboriginal people from the Northern Territory who are subject to the Northern Territory Emergency Intervention (NTER) requested the Committee on the Elimination of Racial Discrimination (the CERD Committee) to act under its Early-Warning Measures and Urgent Procedures to recommend to the Australian Government that it immediately take all necessary steps to end the exclusion of the Racial Discrimination Act in respect of the NTER.

Speakers:
George Newhouse has assisted Indigenous people in the preparation of their communication to CERD. The complaint has recently been considered by CERD at its 74th session from 16 February to 6 March 2009. George Newhouse will provide an update on the complaint, its consideration by CERD, and actions to follow on this consideration. George is a practicing solicitor, a former member of the NSW Consumer Trader and Tenancy Tribunal, and an arbitrator (2001-2004) and Mediator (2001 to date) of the Workers Compensation Tribunal.

Greg Marks is a Canberra-based international lawyer and consultant specialising in international human rights law, in particular Indigenous rights. He is rapporteur of the International Law Association (ILA) Committee on the Rights of Indigenous Peoples and the convenor of Indigenous Rights Committee of the ILA Australian Branch.

Chair:
Dr Ben Saul, Director, Sydney Centre for International Law.


Some really interesting submissions by Greg Marks to the Senate Select Committee on Regional and Remote Indigenous Communities

Mr. Marks' submission to the Senate Select Committee on Northern Territory Regional and Remote Indigenous Communities
http://www.aph.gov.au/senate/committee/indig_ctte/submissions/sub30.pdf

Mr. Marks' submission to the Senate Select Committee on Northern Territory Indigenous Communities: Outstations Policy
http://www.aph.gov.au/senate/committee/indig_ctte/submissions/sub30a.pdf

Mr. Marks' submission to the Senate Select Committee: A context paper providing an overview of the history of Indigenous policy in the NT, in particular the relationship around Indigenous policy between the Commonwealth and the Northern Territory governments overtime. The timeframe is basically from self-government in 1978 through to the MOU on housing etc of September 2007.
http://www.aph.gov.au/senate/committee/indig_ctte/submissions/sub30b.pdf

 

Further relevant links:

MOU between the Australian Government and the NT Government on Indigenous housing etc of September 2007.
http://www.aph.gov.au/senate/committee/indig_ctte/submissions/sub28_attachment_8.pdf

Submissions received by the Senate Select Committee on Regional and Remote Indigenous Communities
http://www.aph.gov.au/senate/committee/indig_ctte/submissions/sublist.htm

 

As far as the town camps, the previous Government ran the line that the town camps do not relate to traditional ownership and therefore are not a land rights matter. Presumably the present Government maintains the same line. However this is not a true depiction of the situation about town camps and it oversimplifies the situation. Please see the below on Alice Springs Town Camps. It was written during the term of the previous Government. Greg Marks was the Area Officer for Alice Springs for DAA (1980 to 1983).

Alice Springs Town Camps

The discussion about the town camps, and the Commonwealth's demands that the leases be surrendered in return for additional housing and other resources, to date has not fully taken into account some significant facts:

  1. The leases were negotiated not only with the intended Aboriginal residents, but more particularly with those local Aboriginal people with responsibility to speak for the country concerned - all the leases were located and agreed to on the basis of negotiations with the traditional owners of Alice Springs. People like Milton Liddle, maybe Mort Conway, and others. In giving their consent to the leases, the traditional owners were not relinquishing their traditional rights in any way. In fact, the negotiations and consent affirmed the continuing traditional rights to the land. Thus, the negotiations and agreements about the leases reflected what was later to be come ‘native title', but this was prior to Mabo, let alone the Alice Springs native title determination.
  2. It was for the reason that the leases had been negotiated with the traditional owners, that is were based on acknowledgement of the traditional land-owning arrangements for Alice Springs, that the 1998 10 Point Plan amendments to the Native Title Act deliberately did not include the town camp leases on its schedule of confirmation of extinguishing tenures for the Northern Territory. So, regardless of the current status of the town leases in terms of native title, the context of traditional ownership, connection to and control of the land occupied by the leases has always been accepted by the system.
  3. The continuing connection to the land by the traditional owners can certainly be argued to still be the case - the leases do not override that, especially given their history. This is quite contrary to the line argued by Minister Brough when he claimed there would be no grounds for compensation because the leases were not based on traditional ownership.
  4. As well, at least one lease was explicitly negotiated for the TOs, and to provide a land base for TOs within the urban area. The residents of some others of course also have significant degrees of traditional affiliation to the Alice Springs land.
  5. Surrendering the leases would undermine recognition of Aboriginal rights to land in the Alice Springs area (it is part of the ‘roll-back' of Aboriginal land rights by the present Government). This would seem highly undesirable. If such surrender of leases were to take place it would need to be on the basis of the informed consent of the TOs and the Aboriginal residents. Significant compensation would be required. Such compensation would appear to be considerably in excess of the current offer from the Government.
  6. The other linkage missing it seems from current discussions is the deliberate moratorium under CHIP on new housing on outstations - presumably now confirmed as a result of the CHIP Review Report. This moratorium has caused crowding and deteriorating conditions on outstations and without doubt has fuelled the ‘urban drift' to Alice. The most effective single means of dealing with the current problems associated with the town camps would be to start putting resources, especially housing, back into the outstations and other small communities.
  7. For the history of the development of the town camps it would be necessary to go back to DAA files. Even after the passage of the Land Rights Act in 1976 urban areas were outside the reach of the Act, so land councils took only occasional interest. As above, native title as a legal doctrine did not exist. DAA had the responsibility for the town area, as well as excisions on pastoral properties. DAA advocated for Aboriginal interests in Alice Springs, both in terms of site protection and in terms of leases for the town camps and then providing housing etc. The files would show the history of these leases.