Washington International Law Journal


In 2007, Australia passed the Northern Territory National Emergency Response Act (“NT Emergency Response Act”), ostensibly reacting to a recent report detailing exceedingly high levels of sexual abuse of Aboriginal children. This Comment argues that the NT Emergency Response Act likely violates Australia’s obligations under the United Nations’ (“U.N.”) International Convention on the Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”). The NT Emergency Response Act provides an opportunity for the Racial Discrimination Convention’s enforcement body, the Committee on the Elimination of Racial Discrimination (“CERD”), to extend its application of the specialized guidelines for indigenous peoples beyond the land title and land use matters. The entire NT Emergency Response Act likely violates CERD’s indigenous policies, as it was passed without the meaningful participation or informed consent of indigenous peoples affected by the Act. Specifically, the land title portions of the NT Emergency Response Act violate Australia’s obligations under the Racial Discrimination Convention because they do not allow for indigenous peoples to use or control their own communal land. CERD should expand its previous use of General Recommendation Number XXIII on Indigenous Peoples (“General Recommendation”), a 1997 CERD document that lists the specific responsibilities States parties have towards indigenous peoples. CERD should use the General Recommendation to analyze the non-land title provisions of the NT Emergency Response Act through a model that combines the informed consent provisions of the General Recommendation with the traditional nondiscrimination norm of the Racial Discrimination Convention. Combining the informed consent and nondiscrimination modes of analysis enables CERD to better address the unique and sensitive issues related to indigenous rights; by so doing, CERD will likely find that many of the non-land title provisions of the NT Emergency Response Act violate the Racial Discrimination Convention.

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