Essentials for Social Justice:Land and Culture

Caring for Culture, Caring for Country

Tom CalmaTom CalmaAboriginal and Torres Strait Aboriginal and Torres Strait

IslanderIslander

Social Justice CommissionerSocial Justice Commissioner

Department of the Environment, Water, Heritage and the Arts

Canberra

7 July 2008

Annual ReportsAnnual Reports

Caring for CultureCaring for CultureCaring for CountryCaring for Country

Caring for country Caring for country is Aboriginal lawis Aboriginal law

Culture is integral Culture is integral to our relationship to our relationship with our landwith our land

Four Critical StepsFour Critical Steps

1.1. A full understanding, recognition and respect for A full understanding, recognition and respect for Indigenous peoples rights to our culture and our Indigenous peoples rights to our culture and our country.country.

2.2. Developing policy that deals with Indigenous Developing policy that deals with Indigenous disadvantage from a holistic perspective.disadvantage from a holistic perspective.

3.3. Engaging Indigenous people as major Engaging Indigenous people as major stakeholders in policies and programs that affect stakeholders in policies and programs that affect us.us.

4.4. Increasing the cross cultural competence of Increasing the cross cultural competence of bureaucracy.bureaucracy.

1. Understanding, recognition, and respect for 1. Understanding, recognition, and respect for our rights to our culture and to our countryour rights to our culture and to our country

an appreciation and acceptance of two world views an appreciation and acceptance of two world views of what country means to both indigenous and non-of what country means to both indigenous and non-indigenous peopleindigenous people

asset/commodity vs foundation/lifeasset/commodity vs foundation/life

the relevance of culture to land and social and the relevance of culture to land and social and economic improvement for indigenous peopleeconomic improvement for indigenous people

Culture is the key to caring for country, and caring for Culture is the key to caring for country, and caring for country is the key to caring for our culture country is the key to caring for our culture

‘‘The land is my backbone…I only stand straight, happy, proud The land is my backbone…I only stand straight, happy, proud and not ashamed of my colour because I still have land.and not ashamed of my colour because I still have land.

I can paint, dance, create and sing as my ancestors did before I can paint, dance, create and sing as my ancestors did before me.me.

I think of land as the history of my nation. It tells me how we I think of land as the history of my nation. It tells me how we came into being and what system we must live. My great came into being and what system we must live. My great

ancestors, who live in the times of history, planned everything ancestors, who live in the times of history, planned everything that we we practice now. The law of history says that we must that we we practice now. The law of history says that we must not take land, fight over land, steal land, give land and so on. not take land, fight over land, steal land, give land and so on.

My land is mine only because I came in spirit from that land, and My land is mine only because I came in spirit from that land, and so did my ancestors of the same land…My land is my so did my ancestors of the same land…My land is my

foundation’.foundation’.

Galarrwuy YunipinguGalarrwuy YunipinguAustralian Catholic Social Justice Council, Recognition: Australian Catholic Social Justice Council, Recognition:

The Way Forward.The Way Forward.

The Declaration on the Rights of The Declaration on the Rights of Indigenous PeoplesIndigenous Peoples

Articles 25 -32 of the Declaration focus on lands, territories and resources rights, including:

– rights to maintain traditional connections to land and territories; – rights to the ownership of such lands and protection of lands by the State; – establishment of systems to recognise indigenous lands; – rights to redress and compensation for lands that have been taken; and– conservation and protection of the environment.

Articles 11-13 of the Declaration focus on cultural, spiritual and linguistic identity including:

– rights to practice and revitalize our cultural traditions and customs including the transmission of histories, languages etc;

– the protection of traditions, sites, ceremonial objects and repatriation of remains;

– right to maintain, protect and develop the past, present and future manifestations of our cultures, including archaeological and historical sites, artifacts, designs, ceremonies, technologies, visual and performing arts and literature; and

– rights to the restitution of our cultural, intellectual, religious and spiritual property taken without our free, prior and informed consent, or in violation of our laws, traditions and customs.

2. Developing Indigenous policy from a holistic 2. Developing Indigenous policy from a holistic perspectiveperspective

State approaches inconsistent with the national State approaches inconsistent with the national approach – in regard to both land policy and approach – in regard to both land policy and broader social and economic policybroader social and economic policy

current policy platform is isolated, disconnected current policy platform is isolated, disconnected and disjointed – collaboration is required between and disjointed – collaboration is required between government departments and with Indigenous government departments and with Indigenous peoplepeople

urgent need for mechanisms that ensure that rights urgent need for mechanisms that ensure that rights are expressed, applied, and exercised equally and are expressed, applied, and exercised equally and consistently across the countryconsistently across the country

A minimum standard A minimum standard across all jurisdictionsacross all jurisdictions

ensure effective participation of Indigenous ensure effective participation of Indigenous peoples in the development of policies that affect peoples in the development of policies that affect our lands and watersour lands and waters

consult with Indigenous peoples to get our free, consult with Indigenous peoples to get our free, prior, and informed consent for proposals on our prior, and informed consent for proposals on our lands and waterslands and waters

evidence based policy with built in evaluation evidence based policy with built in evaluation mechanismsmechanisms

ensure that legislative developments do not ensure that legislative developments do not remove or restrict existing rights remove or restrict existing rights

‘‘The resolution of native title claims is a means The resolution of native title claims is a means to an end, rather than an end to a means. to an end, rather than an end to a means.

Achieving native title to traditional country can Achieving native title to traditional country can lead to the enhancement of self respect, identity lead to the enhancement of self respect, identity

and pride for indigenous communities…native and pride for indigenous communities…native title can also be seen as a means of indigenous title can also be seen as a means of indigenous people participating in a more effective way in people participating in a more effective way in the economic, social and educational benefits the economic, social and educational benefits that are available in contemporary Australia. that are available in contemporary Australia. Obtaining a final determination of native title, Obtaining a final determination of native title, where that is achievable, can be a stepping-where that is achievable, can be a stepping-

stone to securing those outcomes but cannot, of stone to securing those outcomes but cannot, of itself secure them’.itself secure them’.

Merkel JMerkel JRubibi CaseRubibi Case

Rio Declaration and Agenda 21Rio Declaration and Agenda 21

The Rio Declaration states that:The Rio Declaration states that:

– Indigenous people and their communities…have a vital Indigenous people and their communities…have a vital role in environmental management and development role in environmental management and development because of their knowledge and traditional practices. because of their knowledge and traditional practices. States should recognise and duly support their identity, States should recognise and duly support their identity, culture and interests and enable their effective culture and interests and enable their effective particpation in the achievement of sustainable particpation in the achievement of sustainable development.development.

Agenda 21:Agenda 21:

– Promotes the effective participation of Indigenous Promotes the effective participation of Indigenous people in caring for country, but more specifically in the people in caring for country, but more specifically in the development of national policy approaches to land and development of national policy approaches to land and resource management.resource management.

Climate Change: Indigenous issuesClimate Change: Indigenous issues

Australia is now a signatory to the Kyoto protocol and has Australia is now a signatory to the Kyoto protocol and has targets to meet by 2050targets to meet by 2050

UNPFII - April 2008 – Indigenous nations from around the UNPFII - April 2008 – Indigenous nations from around the world predict they will bear the brunt of climate change. world predict they will bear the brunt of climate change. They also expect to be required to contribute to mitigation They also expect to be required to contribute to mitigation strategies ‘in the national interest’strategies ‘in the national interest’

impacts are already being experienced in Australia by impacts are already being experienced in Australia by island and coastal communities and Indigenous groups island and coastal communities and Indigenous groups living in the Murray Darlin Basinliving in the Murray Darlin Basin

impacts for Indigenous people include: environmental impacts for Indigenous people include: environmental refugees, and dispossession from their lands, leading to refugees, and dispossession from their lands, leading to environmental, cultural and spiritual impacts.environmental, cultural and spiritual impacts.

Climate Change: Inclusive Policy Climate Change: Inclusive Policy

relevant government departments must work with each other and with relevant government departments must work with each other and with Indigenous people to develop inclusive climate change policyIndigenous people to develop inclusive climate change policy

engagement of Indigenous people in the development of domestic and engagement of Indigenous people in the development of domestic and international climate change policy must be from the outsetinternational climate change policy must be from the outset

the Garnaut Review on Climate Change - Garnaut’s work may contribute the Garnaut Review on Climate Change - Garnaut’s work may contribute significantly to the design of an emissions trading scheme but does not significantly to the design of an emissions trading scheme but does not consider the impacts on or the level of engagement required by Indigenous consider the impacts on or the level of engagement required by Indigenous peoplepeople

climate change policy should be developed in conjunction with the Indigenous climate change policy should be developed in conjunction with the Indigenous Economic Development StrategyEconomic Development Strategy

The Western Arnhem Fire Abatement The Western Arnhem Fire Abatement Project (WALFA)Project (WALFA)

Improved fire management = carbon offsetImproved fire management = carbon offset

Commercial agreement recognising traditional Indigenous Commercial agreement recognising traditional Indigenous ecological knowledge through savannah burning mitigating ecological knowledge through savannah burning mitigating wildfirewildfire

Aims to generate opportunities for Indigenous communities Aims to generate opportunities for Indigenous communities through culture based economiesthrough culture based economies

Culture based economies – an economic approach which Culture based economies – an economic approach which supports the provision of environmental services as a means to supports the provision of environmental services as a means to support livelihoods through Indigenous people living on countrysupport livelihoods through Indigenous people living on country

Results in real jobs in remote regions, ability to meet cultural Results in real jobs in remote regions, ability to meet cultural obligations to lands and waters and provides a service to the obligations to lands and waters and provides a service to the Australian community – quadruple bottom line: economic, Australian community – quadruple bottom line: economic, cultural, social and environmental benefitscultural, social and environmental benefits

3. 3. Engaging Indigenous People as major Engaging Indigenous People as major stakeholdersstakeholders

Indigenous people must be regarded as ‘substantive players Indigenous people must be regarded as ‘substantive players and stakeholders in the future development of the nationand stakeholders in the future development of the nation

effective participation in decision making is essential to effective participation in decision making is essential to ensuring non-discriminatory treatment and equality before ensuring non-discriminatory treatment and equality before the law the law

the cultural distinctiveness and diversity of Indigenous people the cultural distinctiveness and diversity of Indigenous people must be recognised and respectedmust be recognised and respected

government investment in capacity building of Indigenous government investment in capacity building of Indigenous communities is essentialcommunities is essential

Free, Prior, and Informed Consent

no coercion or manipulation used to gain consent;no coercion or manipulation used to gain consent;

consent must be sought well in advance of authorisation by the State or third consent must be sought well in advance of authorisation by the State or third parties for activities to commence, or legislation to be implemented that parties for activities to commence, or legislation to be implemented that affects the rights of Indigenous peoples;affects the rights of Indigenous peoples;

full and legally accurate disclosure of information relating to the proposal is full and legally accurate disclosure of information relating to the proposal is provided in a form that is understandable and accessible for communities and provided in a form that is understandable and accessible for communities and affected peoples;affected peoples;

communities and affected peoples have meaningful participation in all aspects communities and affected peoples have meaningful participation in all aspects of assessment, planning, implementation, monitoring and closure of a project;of assessment, planning, implementation, monitoring and closure of a project;

communities and affected peoples are able to secure the services of advisers, communities and affected peoples are able to secure the services of advisers, including legal counsel of their choice and have adequate time to make including legal counsel of their choice and have adequate time to make decisions;decisions;

consent applies to a specific set of circumstances or proposal, if there are any consent applies to a specific set of circumstances or proposal, if there are any changes to this proposal or to the circumstances this will renew the changes to this proposal or to the circumstances this will renew the requirement for free, prior, and informed consent; andrequirement for free, prior, and informed consent; and

consent includes the right to withhold consent and say no to a proposal.consent includes the right to withhold consent and say no to a proposal.

The Declaration on the Rights of The Declaration on the Rights of Indigenous PeoplesIndigenous Peoples

Reinforces the existing rights of Indigenous people to give their free, prior and informed consent before certain actions affecting them can occur.

1. It explicitly recognises that Indigenous people have a right to the land we traditionally own.

2. We have a right to compensation for land if it is taken, occupied, used or damaged without our free, prior and informed consent.

3. We have a right to the conservation and environmental protection of our country. This includes a right not to have hazardous materials disposed of on our country.

4. We have a right to determine and develop priorities and strategies for the development or use of our lands and resources.

We must be fully appraised of the benefits and the costs involved.

HREOC National Survey on Land, Sea and HREOC National Survey on Land, Sea and Economic Development 2006Economic Development 2006

the majority of traditional owners did not have a good the majority of traditional owners did not have a good understanding of land agreementsunderstanding of land agreements

‘‘we do not understand state versus commonwealth processeswe do not understand state versus commonwealth processes……the different processes and acts’the different processes and acts’

this limits our capacity to effectively participate in this limits our capacity to effectively participate in negotiations and our ability to leverage opportunities from negotiations and our ability to leverage opportunities from our landsour lands

an information campaign about various land regimes and an information campaign about various land regimes and funding and support programs available – support from the funding and support programs available – support from the ICC, IBA, and other support mechanisms is requiredICC, IBA, and other support mechanisms is required

4. Increase the cross cultural competence 4. Increase the cross cultural competence of bureaucracyof bureaucracy

the system must be accountable to the achievement of the system must be accountable to the achievement of healthy Indigenous communities through sustainable healthy Indigenous communities through sustainable development and support for self determinationdevelopment and support for self determination

we need the support of government in the form of we need the support of government in the form of collaborative partnerships (equal partners) to achieve thiscollaborative partnerships (equal partners) to achieve this

Legislative or constitutional changes may be requiredLegislative or constitutional changes may be required

A consistent collaborative approach is requiredA consistent collaborative approach is required

The full participation and engagement of Indigenous peoples The full participation and engagement of Indigenous peoples at all levels is requiredat all levels is required

A change in attitude toward Indigenous people as A change in attitude toward Indigenous people as stakeholders in the nation is requiredstakeholders in the nation is required

Culture is the key to caring for country

and

Caring for Country is the key to the

maintenance and strengthening of our

culture and well-being

For further informationFor further information

Please visit the HREOC website at:Please visit the HREOC website at:

www.humanrights.gov.auwww.humanrights.gov.au

Contact HREOC on 02 9284 9600Contact HREOC on 02 9284 9600