Delivered on behalf of Dr Bill Jonas by Professor Larissa Behrendt at the 2003 Native Title Representative Bodies Conference on 5 June 2003 in Alice Springs.
SOCIAL JUSTICE THEN NATIVE TITLE
I call my paper 'Social Justice Then Native Title' in order to make a clear distinction between two aspects of Indigenous People's struggle; the ultimate goals we are seeking to achieve and the means by which we seek to achieve them. Distinguishing the means and the ends, the former a servant of the latter, is a fundamental tenet of strategic thinking. And it is clear to me that a strategic approach will identify native title as simply a tool for achieving social justice for Indigenous people. It is therefore important, as Aboriginal and Torres Strait Islander Social Justice Commissioner, that I annunciate what I see as the broader social justice goals that native title is meant to achieve.
From a social justice perspective the two primary goals of Indigenous Peoples throughout the world have been first, attaining recognition of our distinct identity (whether defined by reference to cultural practices, social structures or political institutions); and second, achieving economic prosperity. This second goal requires the establishment of an economic base from which we can begin to prosper, and our participation in the broader economy from which we can derive benefits.
In international law speak these two goals are brought together in the term 'self-determination' but for the time being it is more useful to keep them separate: first, recognition of our distinct identity and second; economic development.
A major hurdle facing Indigenous people in achieving both these goals is that within the party political system as it stands in Australia, Indigenous identity and economic development are constructed as oppositional. An either/or situation; either Indigenous people stay with their community and retain their Aboriginal identity OR they break with this identity and enter the modern capitalist economy.
It has long been recognised that the goals of Aboriginal people have never fitted neatly within the political discourse in which the polarities of left and right are defined in Australia. Yet this discourse has been effective in framing our goals as oppositional; as either/or. Commonly our goal for recognition of a distinct Indigenous identity is seen as separatist, while our goal for economic development and prosperity is classified as assimilationist. Or, a dichotomy familiar in native title decisions, identity is found in traditional systems while economic development belongs to modernity. Presented as opposites only one goal can ever be achieved, and that at the expense of the other. Either we follow the mainstream of economic prosperity and give up our Indigenous identity OR we stay with our communities on our traditional land and forgo the benefits of the modern world.
It is by understanding the political discourse in which Indigenous goals have been trapped for so long that we come to understand why the recognition of native title represented, potentially at least, a paradigm shift in thinking. In native title our twin goals, identity and economic development, were both able to be realised. The origins of native title in our traditional laws and customs secured the first goal and a right to control resources on our land, either through the operation of these traditional laws and customs or through legislative rights flowing from our traditional laws and customs, secured the second. The strength of native title lay in the fact that Indigenous identity and economic development could be seen as complementary and interrelated, not contradictory and oppositional.
Unfortunately, the potential of native title in this regard has not been fully realised. Indigenous identity, established through acknowledgement and observance of traditional laws and customs has become a stultifying notion, not because observing and acknowledging traditional laws and customs is stultifying but because it is constructed within a legal system which seeks to separate Indigenous identity from contemporary society and its economic returns. In the Miriuwung Gajerrong decision, co-existence in the modern world means that Indigenous people must give up control over their land and resources as well as the economic benefits that flow from this control. In the De Rose Hill decision, identity through traditional laws and customs is secured only by remaining on traditional country. In the Yorta Yorta decision, the High Court constructed a static, hermetic notion of Indigenous society, in which there exists complete identification between the traditional laws and customs and the society which observes and acknowledges them. The High Court's construction of traditional society presents a striking contrast with the more dynamic relationships characterising a pluralistic modern society. One that relies on the open and incomplete nature of laws and society. One in which these two elements are continually negotiating their relationship and redefining themselves through changes in the other. For the High Court Indigenous society exists separately from the modern world and divorced from the economic benefits it generates.
Despite the invasive legal structures keeping Indigenous identity and economic development apart, it is generally agreed that agreement making and negotiation processes within the native title system are capable of generating economic benefits for Indigenous people. The challenge is to maximise the capacity of native title to generate wealth through the recognition of a distinct Indigenous identity.
What I want to suggest is that the outcomes that native title can achieve in the two key areas I have identified can be improved by bringing into native title other discourses in which the recognition of Indigenous identity and economic development are also conceived as interrelated. In particular I want to suggest that the discourse around sustainability provides for Indigenous people a useful set of principles and processes which would enable greater participation in economic development based on a recognition of our distinct identity and our unique relationship to land and resources.
Principles of sustainable development have developed at an international level over the last thirty years. Emerging first in 1972 with the Declaration of the United Nations Conference on the Human Environment, principles were presented for the preservation and improvement of the human environment. The 1972 Declaration promoted respect for fundamental rights of freedom and equality and improvement and preservation of the earth's natural resources. In 1987, the World Commission on Environment and Development termed the phrase sustainable development and defined it as 'development that meets the needs of the present without compromising the ability of future generations to meet their own needs'. The 1992 United Nations Conference held in Rio was driven by the sustainable development approach and Agenda 21 was intended as a process of implementation. Importantly, the Rio Conference acknowledged the paramount role of social and economic development in efforts to protect the environment.
Fundamental to the process of sustainable development is the establishment of dialogue and the creation of structures of governance and participation.
A guiding principle of the partnership is that the dialogue should be based on the principles of mutual respect and recognition, honesty, transparency; joint decision making and monitoring; mutual agenda setting; respect and recognition of indigenous cultures language and spiritual beliefs.
The principles and concepts shaping the sustainability dialogue are not new to Indigenous people. In fact they are very similar to the concepts underlying Indigenous peoples' right to self-determination; a recognition of our political status as a people and a concomitant right to freely dispose of our natural wealth and resources and to freely pursue our economic, social and cultural development.
The critical difference in my view is not the concepts which make up the discourse on sustainability, but its primary location in the sphere of economic development. Sustainability, unlike self-determination, does not primarily seek to provide an ethical underpinning to the relationship between the citizen and the state. Rather it seeks to provide this underpinning of rights to the relationship between a developer and those affected by, or participating in the development. In the current climate of economic rationalism, with capitalism not so much the dominant paradigm but the only paradigm, this locational shift is extremely important.
In addition it is a discourse relatively free of the ideological baggage that has weighed down the debate between Indigenous organisations and State representatives on the right of Indigenous peoples to self-determination. A debate that has continued for ten years without agreement being reached on fundamental 'self-determination' clauses in the Draft Declaration on the Rights of Indigenous Peoples.
How then can the dialogue on sustainability improve outcomes for native title holders in the key areas of Indigenous identity and economic development? In responding to this question I want to focus on what seems to be accepted almost universally as the main benefit of native title processes for Indigenous people - agreement making. In my view a sustainability discourse can be particularly useful in this arena.
To test this proposition I engaged Griffith University in 2001 to conduct a study into whether the discourse on sustainable development and corporate responsibility was operating to improve resource development agreements taking place within the native title arena. Lurking in the back of my mind was a suspicion that despite the fine words being espoused by some companies, corporate responsibility was merely a corporate management device directed at enhancing a company's image in the market place but producing very little results on the ground.
To briefly summarise, the study, undertaken by Ciaran O'Faircheallaigh and Rhonda Kelly, revealed a range of approaches adopted by companies to negotiating agreements with Indigenous communities; from an approach that opposed measures aimed at protecting Indigenous rights to one that exceeds the legal requirements. Evidently, some companies were applying a more flexible and equitable approach to negotiating with Indigenous communities.
While some of the results of this study were equivocal, showing an enormous variability in outcomes generated through native title agreement making overall, a key finding was that company policy that incorporated social responsibility principles had a significant, although not universal role in facilitating equitable outcomes for Indigenous parties to a native title agreement.
The Griffith Report illustrates that many business leaders have become convinced that they no longer have the option to focus solely on the financial bottom line. They believe that in the longer term they simply will not be able to achieve their primary goal of earning a competitive return on shareholders funds, unless they address the environmental and social concerns of the communities in which they operate.
But do these changing beliefs and good intentions translate into benefits for Indigenous people. It seemed to me that one way of insuring this might occur was to give the agenda of sustainability to Indigenous people affected by mining and ask them what corporate responsibility should look like. If sustainability was going to make a difference to the agreements that Indigenous people were striking with resource companies, if it was going to amount to more than mere words in a prospectus, Indigenous people had to develop their own set of principles to guide development on their land, based on their own culture and their own experiences of economic development, and consistent with their human rights. Framing these principles in a sustainability dialogue would be particularly effective in dealing with companies who, through their company policies, espoused a social responsibility approach.
To this end a forum was held in Alice Springs in May last year, bringing together Indigenous people from resource development areas around Australia. The forum brought together the knowledge and experience of Indigenous people from Australia's major resource regions. The knowledge and breadth of experience of people attending provided an invaluable basis for developing a set of principles, consistent with human rights that may be useful to other Indigenous communities in their negotiations with resource developers.
The focus of the forum was upon developing principles consistent which Indigenous communities can use in determining the relationship they wish to form with mining companies seeking access to and exploitation of resources on Indigenous land. The basis of this approach is that a properly articulated set of demands by Aboriginal land owners, based on their internationally recognised human rights, and made at the time companies seek a relationship with Aboriginal land owners will be a very important instrument of change both in terms of the relationship itself and the values of the company upon whom that demand is made. This approach can be seen as self determination in action, in which, to quote article one of ICCPR, Indigenous peoples, freely pursue their economic, social and cultural development'.
The principles which are contained in a joint publication of the Human Rights Commission and Griffith University, copies of which are available on the tables outside, address issues such as;
- Prior and informed consent
- effective participation in project development,
- Indigenous involvement in environmental management,
- cultural heritage protection,
- cross cultural training,
- the need for developers to respect the integrity of Indigenous decision making processes,
- the need for negotiations to be properly resourced
Recognition and respect are core values which underpin the principles.
The principles are a model for use by Indigenous communities in their negotiations with resource developers. Communities can choose to apply them in part or wholly or the principles may provide guidelines for communities to develop discrete standards appropriate to their particular circumstances. They show a framework in which Indigenous concerns are supported by human rights standards and create an expectation that these concerns are not without acknowledgement or authority in a global community.
The long term projection of the sustainability discourse is that it moves beyond the realm of agreement making, and the specific relationship that an Indigenous community has with a company, into the realm of government policy; and in particular government policy on native title. Instead of the variability of outcomes that presently characterise native title agreements, sustainability has the potential to replenish the current policy deficit that leaves Indigenous rights to the discretion of company management plans. The importance of mobilising sustainability into a government policy directive was recognised in the Indigenous Peoples' Implementation Plan of Action for Sustainable Development, which declared:
We, the Indigenous Peoples, will further our global strategy for international policies, to influence and shape governmental programmes.
A government that is taking up the sustainability challenge at the national level is Denmark, which, in response to the World Summit on Sustainable Development, sought to operationalise sustainability principles; in particular to give meaning to the 'Partnership on Indigenous Peoples Rights and Sustainable Development' coming out of Johannesburg.
To facilitate the partnership the Royal Danish Ministry of Foreign Affairs and the Home Rule Government of Greenland invited interested parties to participate in a workshop to elaborate on the principles underlying the vision of the launching documents from Johannesburg. The workshop was also an opportunity to begin the compilation of the concrete activities that will form the content of the partnership.
The work on both the principles and the activities centred around the discussions of three working groups, each dealing with an issue of the partnership: first, lessons learned and research on the implementation of development policies on Indigenous peoples; second, training and awareness raising by Indigenous peoples and third, support to Indigenous peoples' organisations in influencing key policy processes nationally, regionally and globally. The government initiative in Denmark reinforces the value of promoting a national dialogue to address policy and institutional reform based on pluralism and democracy.
In my view Australia, like Denmark needs to take up the sustainability challenge, allowing its principles to inform policy programmes concerning Indigenous people. In regard to native title in particular a sustainability discourse may assist to breakthrough the present legal stanglehold and provide the basis for new and creative policy developments within State and even Commonwealth departments. With this underpinning there is a real chance that native title could once again emerge as a paradigm for a new relationship between Indigenous and non-Indigenous people in Australia. A paradigm in which the distinct identity of Indigenous people and our economic development are seen as interdependent not mutually exclusive..
Last updated 16 October 2003
