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Editors --- "Development and Indigenous Land: A Human Rights Approach - Digest" [2003] AUIndigLawRpr 11; (2003) 8(1) Australian Indigenous Law Reporter 79

Agreements - Australia

Development and Indigenous Land:
A Human Rights Approach

Human Rights and Equal Opportunity Commission

Alice Springs

May 2002

Introduction

The principles, Resource Development on Aboriginal Land: A Human Rights Approach, were developed out of a forum that took place in Alice Springs from 6 - 8 May 2002. The forum was co-hosted by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr Bill Jonas, and Griffith University and facilitated by Aboriginal lawyer, Robynne Quiggin. The aim of the forum was to develop principles that respond to the experience of Indigenous people to resource development rather than the business plans of companies.

The impetus for convening the forum was the concern of the Social Justice Commissioner that, given the lack of effective formal rights for native title claimants and the absence of government commitment to improving those rights, negotiations between companies and Indigenous representatives often take place from positions of unequal power. Such negotiations are unlikely to produce equitable or sustainable outcomes.

With these considerations in mind, the Commissioner asked Professor Ciaran O'Faircheallaigh and Rhonda Kelly of Griffith University to conduct a study into a number of agreements that had taken place between resource development companies and Indigenous people. In summary, the study revealed a range of approaches adopted by companies negotiating agreements with Indigenous communities, ranging from an approach that opposed measures aimed at protecting Indigenous rights to one that exceeds the legal requirements. It was obvious that some companies were setting standards of corporate behaviour that respected the human rights of Indigenous people. The challenge is to establish this behaviour as a benchmark for the entire industry. The principles emerging from the Alice Springs forum articulate the behaviour that the Indigenous participants consider to be respectful of their culture and rights.

The principles are based on the forum participants' experience of the impact of mining on their communities. The framework for the principles is the human rights of Indigenous people, including the right to self determination, the right to protection of Indigenous culture and the right to racial equality.

The significance of this forum lay not only in the principles it produced but also in the unique process by which their formulation took place. Aboriginal participants from diverse resource regions of Australia brought together a broad range of experiences, both positive and negative, of the effect of mining on their communities and their land. The process of turning these experiences into a set of principles designed to protect fundamental human rights was itself an exercise of the right of the Indigenous participants to control their land and the resources upon it. The right to self-determination and effective participation require Indigenous people be given the opportunity to decide, from their perspective, the obstacles that need to be overcome and the priorities that need to be set in their relationship with resource companies.

Another feature of the process, consistent with Indigenous notions of governance, was that the forum did not intend to produce rules to be applied uniformly by all Indigenous communities. Rather the principles provide a foundation on which Indigenous communities may build their own positions regarding the relationship between their communities and developers.

Finally the process included a session in which the draft principles were presented to mining company representatives and non-government organisations for feedback and discussion. Company representatives were asked to provide participants with honest feedback on whether, and if so how, the principles could best operate in the field. It was agreed that as a result of this process, both company representatives and Indigenous people gained a greater understanding of their respective values and priorities.

Subsequent to the Alice Springs forum a working group, nominated by the participants, continued to develop the principles to ensure the intentions of the group were fully articulated in the principles. A booklet containing the principles and the background material contextualising these principles will be published in the near future and formally launched by the Commissioner and a representative of Griffith University.

The Principles

These Principles were developed by a forum of Indigenous people from Australia's major mineral resource regions, held in Alice Springs in May 2002. Participants had a depth of experience and expertise in areas across the country, but the process did not make any claim to represent a national Indigenous view. The forum was co-hosted by the Aboriginal and Torres Strait Islander Social Justice Commissioner (Dr Bill Jonas) and Professor Ciaran O'Faircheallaigh on behalf of Griffith University and facilitated by Indigenous lawyer, Robynne Quiggin. The aim of the forum was to initiate a process by which Indigenous people may develop principles, based on human rights, addressing resource development on Indigenous land.

The Principles are informed by the forum participants’ experience of the impact of mining on their communities. The process was not intended to produce rules to be applied uniformly by all Indigenous communities. Rather the Principles, based on the human rights of equality, protection of culture, and self-determination, provide a foundation on which Indigenous people may build their own positions regarding the relationship between their communities and Developers. The participants welcome the extension and adaptation of these Principles to other forms of development and impact on Country.

The Principles address issues such as recognition and respect, Indigenous involvement in environmental management, cultural heritage protection, and the need for developers to respect the integrity of Indigenous decision making processes. A central requirement is that developers obtain the prior informed consent of Indigenous communities affected by any development proposal. The issues covered in these Principles are particularly important where the legal and policy frameworks for resource development on Indigenous land are inconsistent with Indigenous people’s human rights. Adherence to the Principles will assist in ensuring equity between Indigenous and resource development parties.

Preamble

The principles in this document concern the relationship between traditional owners and custodians, on the one hand, and Developers on the other, and are based on the human rights of self determination and development, equality and non-discrimination, and protection & maintenance of culture. The relevant parts of international treaties which enshrine these rights and to which Australia is a signatory are scheduled to this document.

Human rights have been expressed in the Universal Declaration of Human Rights (UDHR), which represent a manifesto for ethical behaviour between peoples, governments and private economic interests. The principles outlined below are specific standards, based upon the UDHR and other sources of human rights principles, for ethical conduct between Developers and Indigenous communities.

The core values that underpin the principles in this document are the values of recognition and respect. Particular aspects of recognition and respect are stated in the first two headings of this document as principles in their own right, but they are also reflected in all of the other principles in this document.

All Developers should recognise that colonisation continues to impact upon the social, economic and environmental conditions and lifestyles of Indigenous peoples throughout Australia. However, Developers should also recognise that traditional owners and custodians throughout Australia retain connection to Country and also recognise the economic importance of their traditional lands to produce sustainable outcomes for future generations.

Developers must respect the rights of traditional landowners to negotiate agreements over proposed and existing Developments on Country. Developers must respect the right of traditional owners and custodians to veto Development proposals.

Developers must fully disclose their profile and projects both nationally and internationally as single entities and joint venturers.

Developers must comply with international standards on labour, human rights, sustainable development and the environment for the express purpose of ensuring that traditional owners and custodians are able to practice their traditional laws and customs and exercise the full range of connection to Country.

In the application of the following principles, the differential impact of Development on traditional owners and custodians including elders, men, women, and children must be recognized and addressed.

Developers and traditional owners and custodians will respect the confidentiality of the other party. Developers must respect the confidentiality of traditional owners and custodians particularly in the receipt and use of Indigenous information, and throughout any negotiations and dealings with traditional owners and custodians.

The principles in this document apply to all Developments, regardless of when they were initiated.

The principles in this document may also be relevant to other forms of resource development.

Definitions

The word 'Development(s)' in this document means any exploration for or extraction of minerals (including oil, petroleum and gas) and all associated activities, such as construction of infrastructure, undertaken on Country.

The word 'Developer(s)' in this document means any party or organisation that seeks to undertake Development on the Country of traditional owners and custodians.

The word 'Country' in this document includes land, water, sea, and sky.

Recognition

The Developer must recognise:

• traditional owners' and custodians' cultural practices, traditional and ongoing spiritual and religious connection to Country;
• traditional owners and custodians as owners of Country, regardless of Western law;
• traditional owners' and custodians' values in relation to their culture;
• the cultural responsibilities of traditional owners and custodians in employment conditions;
• the impairment and disruption of enjoyment, use and access to Country due to impact of Development, and provide appropriate compensation in all cases of such impairment;
• the right of traditional owners and custodians to work with consultants of their choice;
• that traditional owners and custodians are responsible for Indigenous heritage on Country and are owners of their cultural and intellectual property;
• the right of traditional owners and custodians to enjoy economic benefit arising from Development on Country;
• that traditional owners and custodians are the ultimate decision makers on Country and therefore must be involved in all decisions made; and
• the cultural diversity of Indigenous people throughout Australia.

Respect

The Developer must respect:

• traditional owners' and custodians' decisions, decision-making, and dispute resolution processes;
• traditional owners' and custodians' time frames to ensure inclusiveness for decisions that are subject to cultural ceremonies and law, climatic and geographical conditions;
• the collective and communal nature of Indigenous rights;
• the status of traditional owners and custodians - the Developer must provide its representatives with the authority to negotiate and make decisions;
• the traditional owners and custodians by providing notice of future projects as early as possible in the life of that project, and well in advance of any relevant statutory periods;
• all relevant persons and groups in a community (including traditional elders, custodians of sites, traditional owners and custodians of stories/songs, men’s and women’s businesses) in traditional decision making about Indigenous heritage and what happens on Country; and
• the information and knowledge of traditional owners and custodians, and the Developer must apply mutually agreed principles in protecting that information and knowledge.

Prior Informed Consent

Traditional owners and custodians have a right to make informed decisions, which may include decisions that Development will not proceed. The Developer must:

• ensure that traditional owners and custodians have all information in relation to proposed projects in a timely and comprehensive manner and in an understandable form;
• fully disclose to traditional owners and custodians, information on the Developer's projects, practices and policies (including Indigenous policies); and
• provide resources and funding for traditional owners and custodians to undertake impact assessment as an integral part of project approval processes and of project operations.

Internal Decision-Making Processes

The Developer must:

• respect traditional owners' and custodians' decisions and decision making processes in relation to representation; and
• refrain from participating in traditional owners' and custodians' decision making structures, unless by traditional owners' and custodians' invitation and without inducement.

Economic Development and Benefits

Traditional owners and custodians have the right to guaranteed effective participation in all economic development and benefits, which are sustainable and durable benefits, including:

• permanent and meaningful employment;
• training, education, and capacity building;
• business opportunities;
• royalties;
• equity in the operation; and
• generation of spin-off (secondary) economic opportunities;

with the Developer and any of its contractors or joint venturers.

Independent Monitoring and Performance Benchmarks

The Developer must:

• negotiate outcome-focused benchmarks with full participation of traditional owners and custodians;
• agree to independent monitoring of performance based on the agreed benchmarks;
• ensure timely reviews of agreements and other relevant development activities; and
• negotiate, with the full participation of traditional owners and custodians, a code of conduct to apply to all employees and contractors, and covering areas such as cross cultural relations, responsible use of alcohol, and fraternising with local people – the code must be supplemented by staff training including localised delivery of cross-cultural training.

Indigenous Involvement in Environmental Management

The Developer must:

• comply with environmental laws and industry codes of practice;
• ensure that traditional owners and custodians are able to practice their traditional laws and customs and exercise the full range of connection to Country
• integrate Indigenous knowledge and land management practices into rehabilitation plans and works;
• provide financial guarantees including, secured funds to manage closure issues, in the immediate and long term; and
• set environmental management standards with the full participation and agreement of traditional owners and custodians.

Cultural Heritage Protection

The Developer must:

establish appropriate cultural heritage protection to the standards required by traditional owners and custodians;

provide resources and funding on a basis agreed with traditional owners and custodian to undertake heritage assessments and develop management plans on the basis of the agreed standards; and

provide resources and funding for cultural awareness training by traditional owners and custodians at all levels of the Developer's organisation.

Resourcing

The Developer must provide resources and funding to:

• allow fair and equitable negotiations; and
• ensure effective implementation of all stages of agreements with traditional owners and custodians.

Schedule of Relevant Human Rights Principles

The right to self-determination is enshrined in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 1 provides:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

The right to development is enshrined in articles 1 of the Declaration on the Right to Development which provides:

1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.

2. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

The right to racial equality and non-discrimination is enshrined in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Article 5 of ICERD provides:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;
(ii) The right to leave any country, including one's own, and to return to one's country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.

The Committee on the Elimination of Racial Discrimination has issued general recommendation 23 on how the Convention should apply to Indigenous people. This provides (among other things):

3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.

4. The Committee calls in particular upon States parties to:

(a) Recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation;
(b) Ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;
(c) Provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
(d) Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent;
(e) Ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages.

5. The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

The right to protection and maintenance of culture is contained in Article 27 of ICCPR which provides:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

The Human Rights Committee’s General Comment 23 on Article 27 of ICCPR states (among other things):

The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.

The right to freedom of religion is enshrined in article 18(1) of the ICCPR, which states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.