Climate Change and Indigenous Peoples

Speech by Warwick Baird, Director, Native Title Unit, HREOC

Native Title Conference 2008

4 June 2008, Perth

Good afternoon. I’m Warwick Baird, Director of the Native Title Unit at the Human Rights and Equal Opportunity Commission. What a great conference it has been so far. Thanks AIATSIS for a wonderful job, Lisa Strelein and all your colleagues thank you for all your hard work.

Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, apologises for not being here this afternoon and has asked that I present instead.

I’d like to start this afternoon’s session by acknowledging the Traditional Owners of this land, the Noongar and paying them respects for their commitment to realising and protecting their native title rights and their human rights. Thanks Noongar for a very warm welcome.

It is a commitment that reminds me of the Kamilaroi people of northern NSW. Some years ago, as a lawyer, I assisted them to gain protection of Boobera Lagoon, a resting place of the Rainbow Serpent. The site, sacred to the Kamilaroi, was being desecrated by speedboats.

I remember sitting on the banks of the lagoon one still afternoon, listening to a couple of elders talk about the lagoon and what it meant to them.

One of them mentioned that a particular bird that turned up just before the rains hadn't been seen much anymore - an indication that the climate was changing.

I watched their faces as they talked about their country and the impact of the speed boats. In them I saw the deep tearing that was taking place inside of their very essence every time the resting place, the sacred waters of the lagoon, were desecrated by the boats.

It had a profound effect on me.

These elders opened my eyes just a little to the deep connections, the deep engagement that Indigenous people have with this land.

Years later I was researching the United Nations Framework Convention on Climate Change and the Kyoto Protocol, and these images were still with me. I was looking at the so-called market mechanisms in the Protocol one of which is emissions trading.

A couple of things struck me at that time, and this is back around 2000 before the Protocol had come into effect, and of course well before Australia ratified it.

One was that climate change was impacting and was going to impact even more on indigenous[1] peoples globally in a unique way, because of this deep engagement they have with the land.

The other, was that the talk about climate change had gone from the science of it, to the economics.

How much is it going to cost to adapt, how much to mitigate the consequences? Where could money be made, how could emissions be turned into a commodity that could be traded? These types of questions.

These questions have dominated the discussion even more so in the last year or so.

What wasn’t being talked about, until very recently, was the impact of climate change on human rights and the place of human rights in a changing world as the climate changed.

By human rights I mean those core set of rights proclaimed under international law, particularly in the International Covenant on Civil and Political Rights, and the Covenant on Economic, Social and Cultural Rights - rights such as the Right to Development and Free, Prior & Informed Consent.

And especially those rights set out in the Declaration on the Rights of Indigenous Peoples.

This brings me to the topic of my talk today.

Human rights and Indigenous engagement with climate change policy.

I'm not going to go into the details of native title law and the nexus with rights in carbon and water and biodiversity. Though an understanding of this nexus is absolutely crucial, and I suspect largely unexplored.

What I am going to do is talk more generally about the present and the future, following the theme of the conference, and the need to engage Indigenous people with the whole climate change discussion. An engagement that sees human rights protected as well as opportunities realised.

Things are moving fast in the world of climate change policy and the urgency is only going to get greater. Yet Indigenous peoples, despite their deep engagement with the land and waters, it seems to me, have little engagement with the formulation of climate change policy ­ little engagement in climate change negotiations ­ and little engagement in developing and applying mitigation and adaptation strategies. They have not been included. Human rights have not been at the forefront.

Where they are engaged it tends to be in a piecemeal fashion.

The key theme of my talk is therefore engagement and the inclusion of Indigenous people.

And the key message is that in a time of rapidly evolving climate change policy Indigenous people must engage and be engaged with, as the policy is being formulated and the mitigation and adaptation strategies worked out if their human rights are to be protected.

Not after the policies are developed. But NOW at the formative stage.

Government must engage Indigenous people. And Indigenous people must pressure governments to engage with them.

However waiting for government may leave Indigenous people out in the cold, so to speak. I think it is going to be up to Indigenous people.

There are three general areas I want to talk about to expand on this key message of engaging and including Indigenous people in climate change policy and strategies ­ the international, the national, and on the ground.

I’m not going to go into the facts and figures of the impact of climate change, the economics and science of it all.

I’m accepting that climate change is real. That it is having a major impact now. That the impact is going to get bigger. Especially for indigenous peoples, here in Australia and around the world.

What I am going to do is look at three reasons, coming out of three areas, as to why I think it is so crucial that Indigenous people are engaged, and engage in, the development of climate change policies and mitigation and adaptation strategies.

The first reason is because of what is going on internationally ­ in particular recent recommendations coming out of the United Nations system. Especially out of the International Expert Group Meeting on Indigenous Peoples and Climate Change, held in Darwin earlier this year, and the United Nations Permanent Forum on Indigenous Issues held in New York last month.

And also because of the Declaration on the Rights of Indigenous Peoples which is likely to increasingly play a central role in international law.

The second reason for engagement is because of policy developments here in Australia. The one I'll focus on is emissions trading.

The third and final reason is because of pressure from climate change on the 20% of land in Australia under Indigenous control. Pressure that is only going to increase.

Taking the FIRST REASON for engagement.
If we look at what is going on internationally we find there is an increased awareness of the vulnerability of Indigenous peoples around the world to climate change and increased calls for their full participation in climate change policy setting, climate change negotiations, and mitigation and adaptation strategies.

Recently I attended a United Nations International Expert Group Meeting on Indigenous People and Climate Change in Darwin.

That meeting made a number of recommendations. Which are set out in its summary final report, which you can find on the Web. Some of these focus on this issue of indigenous peoples engagement and inclusion.

There are four particular recommendations I'd like to draw to your attention.

One - The Expert Group urged States with indigenous peoples to hold workshops, and seminars with indigenous peoples and communities to discuss climate change policies.

Two - The Expert Group recommended that States and other organisations incorporate into education systems traditional knowledge and the impacts of climate change on indigenous peoples.

Three - The Expert Group recommended that States provide financial and human resources that are specifically dedicated to translate into plain language and local languages climate change projections and climate change impact assessments on indigenous managed and owned lands.

This recommendation was made to enable and encourage discussions between indigenous leaders and their communities. So they can decide their own priorities for developing climate adaptation strategies.

Four – The Expert Group recommended that States, the World Bank, the private sector and other relevant actors in emissions trading schemes must recognise and respect indigenous peoples’ land rights and land tenure systems.

This last recommendation is important in Australia right now. As there is so much hype and activity going on around the introduction of a national emissions trading scheme. I'll return to this point later.

In this area of emissions trading the Expert Group expressed particular concern over the possibility that the carbon market may further complicate land tenure matters for indigenous peoples.

The United Nations Permanent Forum on Indigenous Issues picked up these and other recommendations from the Expert Group.

The theme of this year’s Forum, the seventh, was Indigenous Peoples and Climate Change. The Aboriginal and Torres Straight Islander Social Justice Commissioner Tom Calma, my boss, and Katie Kiss an Indigenous colleague of mine from north Queensland attended the Forum.

Key recommendations from the Forum also dealt with the issue of Indigenous engagement.

An overarching recommendation was that the human rights based approach to development should guide the design and implementation of local, national, regional and global climate policies and projects.

There are four other recommendations from the Forum I'd like to highlight.

One - The Forum recommended States develop mechanisms through which they can monitor and report on the impacts of climate change on indigenous peoples.

Two - The Forum recommended that States ensure that indigenous peoples undertaking their own mitigation measures are provided with support: policy support, technical assistance, funding and capacity-building.

Three – The Forum recommended that the United Nations Framework Convention on Climate Change develop mechanisms for indigenous people’s participation in all aspects of the international dialogue on climate change. This was particularly with regard to the forthcoming negotiations for the next Kyoto Protocol commitment period.

Four - The Forum recommended that the Intergovernmental Panel on Climate Change undertake specific assessment of the opportunities and threats for indigenous peoples arising from the various greenhouse gas emission strategies.

Those that are currently in place and those that will potentially come into operation to mitigate the impacts of climate change. And that this is done with full participation of indigenous people.

The Intergovernmental Panel on Climate Change is responsible for pulling together assessments on climate change around the world and publishes assessment reports.

From these recommendations from the Expert Group meeting and the Permanent Forum you can see a clear push at the international level to get States and other actors to engage with indigenous people in the ongoing dialogues about climate change and include them in the different processes for mitigation and adaptation that are underway.

As I see it there are a number of themes coming out of both the Expert Group meeting and the Permanent Forum. I've picked four:

  1. Education and information in plain English
  2. Involvement in scheme design and implementation
  3. Impact assessment and identification of opportunities
  4. Encouraging indigenous peoples participation at all levels, especially at the international level.

These themes fit in with a human rights approach to Indigenous people and climate change. They need to be considered at a national level in policy formulation in Australia.

Which brings me to another aspect of what is happening internationally?

The Declaration on the Rights of Indigenous Peoples.

The Forum recommended that the Declaration serve as a key and binding framework in the formulation of plans for development. It should be considered fundamental in all processes related to climate change at the local, national, regional and global level.

Both the Permanent Forum and the Expert Group meeting placed the Declaration on the Rights of Indigenous Peoples at the center of climate change policy implementation.

The role the Declaration is going to play at the level of international law will become more and more important. It needs to be taken into account. As Chief Judge Joe Williams said so clearly in the Mabo Lecture at the beginning of this conference, international reputation matters.

The Permanent Forum looked at the relationship between the Declaration and climate change in a number of ways.

The overarching requirement is that climate change policies and projects adhere to the standards set by the Declaration.

To assist this, the Forum appointed special rapporteurs to undertake a study to determine whether climate change policies and projects adhere to those standards.

An outline of the study is to be presented to the Forum at its eighth session and the report at its ninth session.

The Forum also recommended that two special rapporteurs be appointed, in collaboration with indigenous peoples, to prepare a draft declaration of action on climate change and indigenous peoples.

This was to include a road map for indigenous peoples towards the 2009 Copenhagen Conference of the Parties to the United Nations Framework Convention on Climate Change and beyond.

And this is important – the involvement of Indigenous peoples in international negotiations for a Post Kyoto climate change regime is essential. These negotiations are being undertaken now, post-Bali, in the lead up to meeting of the Conference of the Parties in Copenhagen in late 2009.

Those are some of the international development I wanted to draw your attention to.

There is pressure on States to engage with indigenous people and there is reason for Indigenous people to engage in the climate change issues.

However I don't think it is enough to rely on the Government, on States, to engage indigenous people.

Indigenous people are going to themselves need to engage.

Which leads me to the SECOND of the three reasons indigenous people need to engage in climate change policy ­ the way national climate change policy appears to me to be developing in Australia at the moment.

I only have time to touch on these briefly.

In Australia climate change policy is developing rapidly and Indigenous people are not included or their engagement is on a piecemeal basis.

Internationally what we see is that where they haven't been involved, which is generally the case, the result may well be detrimental impacts on indigenous people.

Perhaps the national policy development receiving the most attention at the moment is the introduction of a national emissions trading scheme. To assist in this a review is currently being undertaken by Professor Ross Garnaut into climate change. His team has released an interim report and a number of discussion papers. They are available on the web.

On my read through of the various papers released by the Garnaut Review I found no reference to Indigenous peoples, no factoring in the impact a national trading scheme might have on Indigenous land tenure. No submissions from Indigenous organisations stressing an Indigenous perspective.

His work is likely to have a big impact on the design of a national emissions trading scheme set to be introduced by 2010 and Indigenous people don't seem to be in the game.

The apparent lack of Indigenous input in this process is seen throughout the development of emissions trading policy generally in Australia.

There have been a number of discussion papers and reports on emissions trading prior to the Garnaut Review. Looking over them there doesn’t seem to be submissions from Indigenous organisations.

And from the reporting side, there appears to be a scarcity of consideration being given to climate change and Indigenous peoples.

Indigenous people need to be engaged and included when environmental markets, such as emissions trading schemes, are being structured so that the impact on Indigenous peoples of the markets and their capacity to participate in them are taken into consideration at the design stage.

Some thoughts on Indigenous participation in environmental markets are set out in a paper by Emily Gerrard for AITSIS. I noticed copies are outside. I recommend grabbing a copy. It goes into some of the issues in greater depth than I am able to here.

My key message that Indigenous people need to get engaged is not to suggest that there is not already some involvement of Indigenous people in climate change issues. Around Australia there are projects looking at Indigenous people and climate change.

The CSIRO is looking at ways to use Indigenous knowledge in adapting and monitoring climate change.

The Climate Change Research Centre, at the University of New South Wales is doing work on the impacts of climate change on the people in the Torres Strait.

There has been a $10 million grant to the Northern Australian Land and Sea Management Alliance to assist research into participation in carbon markets.

The Western Arnhem Land Fire Abatement Project is being looked at as a model to use across northern Australia. Tom Calma reported on this project in the recently released 2007 Native Title Report.

See me after this session if you would like a copy.

And in New South Wales, the New South Wales Aboriginal Land Council is exploring voluntary carbon markets and looking at agreements involving carbon offsets and carbon sequestration on Aboriginal Land Council land.

And there are other projects around the country.

What is striking however is the lack of a centralised information source about all these different activities ­ these different ways that Indigenous people are engaging.

It seems to me that things are taking place in an information vacuum. indigenous people need information like how the markets are designed, how they work, what are the ramifications for land tenure and land use from participating, what are the risks to Indigenous culture and to Indigenous control of land and what is a good deal?

THE THIRD REASON and final reason for indigenous engagement and involvement in climate change policy and strategy is because of the pressure climate change will have on land under indigenous control.

As a result of native title and state and territory land regimes Indigenous Australians have control to some degree, at a conservative estimate, of around 20% of the land-mass of Australia.

This area is under increasing pressure now and in the future as a result of climate change.

  • Pressure from the effects of changing climate ­ extreme weather events, less rain, water scarcity, rising sea levels, increased disease, loss and modification of biodiversity, and so on.
  • Pressure from people wanting to gain access to the land and to use it for emissions offsets, carbon sequestration projects such as planting forest, carbon dumps or geo-sequestration as its known, nuclear waste dumps, wind farms, solar power arrays, and so on.
  • Pressure from people migrating onto land, as might be the case in the Torres Strait, to higher ground from the low lying coastal areas, and people migrating off the land, leaving behind largely Indigenous populations such as appears to be happening in parts of the Murray Darling Basin as water becomes scarcer.
  • Pressure to compulsorily acquire Indigenous interests in land, be they native title rights and interests, Aboriginal freehold or deeds of grant in trust.

There is also the fragility of native title. We saw how the future act regime was swept aside under the Northern Territory intervention. This may easily happen with pressure mounting on governments for access to land for climate change mitigation and adaptation projects.

To summarise

There is a human rights element to climate change that gets lost in all the talk about the science and the economics. And part of that human rights element is engaging indigenous people in climate change policy, be that dealing with mitigation or adaptation, and ensuring that their human rights are protected.

The Declaration on the Rights of Indigenous Peoples is becoming a key document of international law to look to regarding those rights and to guide the development of climate change policy.

Internationally United Nation processes are seeing recommendations being made to States to engage indigenous people. Yet national policy is being developed without Indigenous peoples engagement. So it is going to be up to Indigenous people to pressure government and parties to engage with them over climate change policy.

And I think it is going to be up to Indigenous people and their organisations to not wait for government but in all their dealings, be it Indigenous Land Use Agreement negotiations, housing negotiations, Shared Responsibility Agreements and in all other possible ways to ensure that climate change considerations are central.

This is only going to become more important as pressure on Indigenous controlled land increases.

So what's the next step?

It’s easy to say get engaged ­ but how?
And there are certain conditions required to promote engagement and inclusion.

First, how to get engaged – five ideas:

One - Contact the SJC, myself or my staff in the native title unit at HREOC because the Native Title Report we are currently compiling covering the year ending 30 June 2008 is on the theme of Climate Change, Indigenous Peoples and land, sea and waterway rights. The report goes to the Attorney-General and is tabled in Parliament. It has an impact on government policy. It is a valuable resource for disseminating information throughout the Indigenous community.

Two ­ Pressure Indigenous representative bodies, including native title representative bodies and services to incorporate climate change considerations into all native title agreements, and other agreements involving Indigenous people.

Three ­ Pressure government, and make submissions to inquiries and reviews looking at climate change and mitigation and adaptation strategies. For example the Garnaut Review.

Four ­ Pressure your local government council to pay particular attention to Indigenous people when they are formulating policy and implementing strategies dealing with climate change.

Five – empower yourself – learn and understand what climate change, carbon trading, carbon offsets, all the jargon means. Knowledge is power.

Turning to how to assist engagement ­ 4 ideas:

One - There needs to be clear information in plain English, of such things as the likely impact of climate change on local Indigenous communities.

Two - Programs on National Indigenous Television could greatly assist in the spread of knowledge.

Three - Perhaps the National Native Title Council could consider making Indigenous people and climate change a central platform of its work.

Any new national Indigenous representative body could do the same thing.

Four – The Federal government could set up a dedicated unit to look at Indigenous people and climate change, within the Department of Climate Change, as could the States in their respective departments.

And finally I would like to leave you with this thought.

Climate change is a human rights issue. And if those two elders on the banks of Boobera Lagoon taught me anything, it was that Indigenous people because of their unique connection with country will be affected in a profound and special way by climate change. And that the traditional knowledge Indigenous people have about land and sea may well provide a valuable resource in adapting to and dealing with climate change.

Indigenous people have a deep relationship with the land. What is needed now is deep engagement with the rapidly evolving climate change policy.

Thank you

[1] The word ‘indigenous’ appears with an initial lower case where it is used to refer in a general sense to original inhabitants of countries around the world. The first letter is capitalised where the work is used to refer to the original inhabitants of Australia.