Appendix B Observations on the Northern Territory Emergency Response in Australia I. Introduction 1. This report presents the observations of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, on the Northern Territory Emergency Response (“NTER”) programme in Australia, in advance of reforms to the NTER that are anticipated in 2010. These observations follow an exchange of information and communications with the Government of Australia, indigenous peoples, and other stakeholders, including during the visit of the Special Rapporteur to Australia between 17 and 28 August 2009, during which he visited, with the cooperation of the Government, numerous Aboriginal communities in the Northern Territory, including Alice Springs (as well as the Alice Springs town camps), the Bagot community in Darwin, Yuendumu, Yirrkala, Angurugu, Gamgam, and Raymangirr. The observations included in parts I–V of the report were submitted initially to the Government by a note of 2 December 2009. These parts of the report appear here with only minor changes that do not alter substantively the observations previously submitted to the Government. Part VI of the report includes a summary of the Government’s comments on the observations previously submitted, comments the Special Rapporteur received on 16 February 2010; and part VII provides final observations by the Special Rapporteur. 2. The NTER is a suite of legislation and related Government initiatives implemented in 2007, which are aimed at addressing conditions faced by indigenous peoples in the Northern Territory, but that contain several problematic aspects from an indigenous human rights standpoint. Although many of the concerns related to the NTER are being addressed in the Special Rapporteur’s main report on the situation of Aboriginal and Torres Strait Islander peoples in Australia — including with respect to self-determination, selfgovernance, participation in the design, delivery and oversight of programmes, and cultural match — the Special Rapporteur would like to devote special attention to the matter of the NTER, given its extraordinary nature and its deep implications for a range of fundamental human rights, especially the right to non-discrimination, and for what it may represent for the direction of indigenous-State relations in Australia. 3. The Government of Australia is correct to endeavour to ensure the security of Aboriginal women and children as a matter of urgency and priority, and to improve the well-being of Aboriginal people in the Northern Territory. Affirmative measures by the Government to address the extreme disadvantage faced by indigenous peoples and issues of safety for children and women are not only justified, but they are in fact required under Australia’s international human rights obligations, including under the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. The NTER programme, however, in several key aspects limits the capacity of indigenous individuals and communities to control or participate in decisions affecting their own lives, property and cultural development, and it does so in a way that in effect discriminates on the basis of race, thereby raising serious human rights concerns. 4. It is the opinion of the Special Rapporteur that, as currently configured and carried out, provisions of the NTER are incompatible with Australia’s human rights obligations. The present document sets forth the reasoning behind this assessment. In this regard, the Special Rapporteur also takes note of the analysis contained in the 2007 Social Justice GE.10-13887 (E) 240610