reconnet: reconciliation email network URGENT ACTION ALERT s43a STATE SCHEMES AND THE RIGHT TO NEGOTIATE Action is needed this week on this issue. Dear friends, Once again we face a critical time for native title, this time with hard decisions coming before the Federal Parliament concerning state and territory s43a schemes which seek to wind back the 'right to negotiate'. S43a schemes were part of the Howard/Harradine amendments which the UN CERD Committee found to be racially discriminatory and in breach of Australia's international obligations. The CERD Committee's decision called on the Howard Government to open discussions with indigenous representatives in order to find solutions acceptable to indigenous peoples and complying with Australiaºs obligations under the convention. Part of the 'Harradine deal' during the 1997/98 native title amendment debate was that state and territory s43a schemes would be 'disallowable instruments', meaning that such schemes must come before the Federal Parliament and can be voted down by either House. To date no s43a scheme or, indeed, s43a itself, has the consent or support of indigenous people because they represent an unacceptable dilution of the right to negotiate. With the Northern Territory s43a scheme opposed by indigenous groups and already voted down once, the Queensland s43a scheme may be the next to go before the Federal Parliament. Premier Beattie is claiming support for the Queensland scheme, however, the QIWG has written to Kim Beazley and the Democrats pointing out that there has been no consent given from indigenous people in Queensland to the Beattie scheme. WA is now in the process of seeking support from indigenous groups for its own scheme. Pressure is needed on both the Labor Opposition and the Democrats to exercise their numbers in the Senate to vote down s43a schemes and to urge the opening of discussions with indigenous representatives concerning their consent to s43a. With s43a now shown to be fatally flawed and lacking indigenous support, Labor and the Democrats should be calling for its removal from the Native Title Act. WHAT IS REQUIRED: Ç letters to Opposition leader, Kim Beazley, (cc to Melham and Bolkus). Ç letters to individual Democrat senators, particularly Meg Lees, Woodley, Ridgeway and Bartlett. Ç take advantage of any other lobbying opportunities. Letters and lobbying need to happen this week. Your letters should emphasise: Ç the fact that s43a schemes and s43a itself do not have the support or consent of indigenous people because they are an unacceptable dilution of the right to negotiate; Ç the CERD decision requires that the Commonwealth negotiate with indigenous representatives to find solutions acceptable to them; Ç the lack of security issue regarding the possibility of detrimental amendments once the Senate has approved a state scheme. Below is a summary of some of the pertinent issues regarding the s43a schemes which you may wish to use in your letters and lobbying efforts. Thank you for your support, ANTaR Contact details: Hon. Kim Beazley (02) 6277 8495 (Fax) [EMAIL PROTECTED] Senator Lees (02) 6277 3996 (Fax) [EMAIL PROTECTED] Senator Woodley (02) 6277 3725 (Fax) [EMAIL PROTECTED] Senator Ridgeway (02) 9247 7168 (Fax) [EMAIL PROTECTED] Senator Bartlett (02) 6277 3791 (Fax) [EMAIL PROTECTED] NOTES ON STATE AND TERRITORY s43a SCHEMES An ad hoc, discriminatory legislative approach We are facing the prospect of a system of ad hoc, racially discriminatory s43a schemes being adopted by the states and territories to replace the right to negotiate. Such an ad hoc system would, in addition to specific discriminatory aspects of individual schemes, be discriminatory towards indigenous people from different states and territories who, by mere accident of political circumstances, find themselves subject to different sets of rights under law. It is also against the national economic interest, requiring commercial interests to deal with seven different regimes across Australia rather than one set of procedures. Already there are a range of state and territory responses, ranging from the retaining of the current right to negotiate (VIC) or its equivalent (SA), to proposed schemes which to varying degrees erode the right to negotiate in line with the unacceptable minimum procedural rights set out in the Howard/Harradine amendments (WA, NT, QLD, NSW). Inadequate and discriminatory minimum standards for s43a schemes The minimum standards applied to s43a schemes are totally inadequate and notes that all States and Territories have indicated a willingness or capacity to exceed these standards, however marginally. The recently confirmed March 1998 decision of the CERD Committee, found the Howard/Harradine amendments to be racially discriminatory and in breach of Australiaºs international obligations. The Committee called on Australia to: address the concerns as a matter of urgency; suspend implementation of the 1998 amendments; and re-open discussions with Indigenous representatives, with a view to finding solutions acceptable to indigenous peoples and complying with Australiaºs obligations under the convention. The Howard Government has ignored the Committeeºs findings and current processes of consultation with indigenous representatives regarding s43a schemes have resulted from intervention by the opposition parties and independents. To date there has been no attempt by the Howard Government to re-open negotiations with the indigenous community on s43a and other aspects of the Howard/Harradine amendments. Sabotage of the Âright to negotiateº It is clear that the Commonwealth and some states and the Northern Territory, in being prevented from destroying the right to negotiate outright, have sought to sabotage it instead. The Commonwealth has done so through provision for s43a schemes (which will preclude future access to the right to negotiate), and by seriously under-resourcing the National Native Title Tribunal and Native Title representative bodies so that they cannot cope with the volume of applications before them. Some states and the Northern Territory have purposefully withheld applications in order to manufacture a crisis. The right to negotiate was itself a significant compromise on behalf of the indigenous leadership during negotiations over the 1993 legislation and it should not be subject to further watering down through s43a schemes. Lack of ongoing security for s43a schemes The recent disallowance of the Northern Territoryºs s43a legislation has highlighted the lack of ongoing security in s43a schemes which, once passed by the Senate, remain vulnerable to future detrimental amendment by the states and territories. In such cases the only current Âsafeguardº is that the Commonwealth Minister must ensure continued compliance with the totally inadequate minimum standards of the Howard/Harradine amendments. Clearly, while s43a remain in the NTA, the Senate must retain the ability to disallow future detrimental amendment of any s43a scheme. However, as this would in any case require amendment of the current NTA, what is required is the removal of s43a altogether. Queensland s43a legislation should be disallowed Of particular concern is Premier Beattieºs call for Commonwealth and Senate approval of Queenslandºs proposed scheme despite any solution to the security issue and other problems with the legislation. Our understanding is that the Queensland scheme compares unfavourably with approaches adopted or proposed by NSW, Victoria and SA and is broadly equivalent to the currently unacceptable WA and Northern Territory schemes. The indigenous people of Queensland have given neither support nor consent to the scheme. These factors, together with the lack of ongoing security, underscore the need for the Senate to disallow the Queensland legislation and any other s43a schemes which come before it. Commonwealth responsibility for indigenous affairs Indigenous affairs and native title are national responsibilities Ç this is what the 1967 referendum was all about - and therefore, in devolving powers back to the states and territories, the Commonwealth must retain control in these matters against inevitable self-interested action by the states and territories. State and territory control of land management matters must not be used as an excuse to abrogate Commonwealth responsibility in these matters. Informed consent The recent report of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs expressed bipartisan support for an approach of Âinformed consentº of indigenous stakeholders in relation to any amendment of the Aboriginal Land Rights Act (NT) 1976. This principle is also inherent in the findings of the CERD Committee with respect to the Howard/Harradine amendments to the NTA, and we believe, must also be applied in relation to s43a schemes. The reported stance of the Democrats that support for the WA scheme in the Senate be contingent on indigenous support being obtained for the legislation in WA is encouraging. However, with s43a now shown to be fatally flawed and lacking indigenous support, Labor and the Democrats should be calling for its removal from the Native Title Act. ______________________________________________________________________ To unsubscribe, write to [EMAIL PROTECTED] MSN Messenger Service lets you stay in touch instantly with your family & friends - Visit http://messenger.msn.com
