Essentials for Social Justice:  Land and Culture – Economic Development

Tom Calma
Aboriginal and Torres Strait Islander
Social Justice Commissioner
Human Rights and Equal Opportunity Commission

Speech at the
Department of Environment, Water, Heritage and the Arts
NAIDOC Week Celebrations
7 July 2008 – 1.00pm

John Gorton Building Bunker Theatre
King Edward Terrace – Parkes ACT


Essentials for Social Justice

Between December 2007 and July 2008 the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, will deliver a series of key speeches setting out an agenda for change in Indigenous affairs.

Slide 1

Essentials for Social Justice: Land and Culture

Caring for Culture, Caring for Country

Department of the Environment, Water, Heritage and the Arts Canberra

7 July 2008

Tom Calma Aboriginal and Torres Strait Islander Social Justice Commissioner

Good afternoon ladies and gentlemen.

I begin today by paying my respects to all of the Ngunnawal peoples, the traditional owners of the land where we gather today. I pay my respects to your elders, to the ancestors and to those who have come before us. Thank you Aunty Matilda for welcoming us to your land.

I would also like to thank the Department of Environment, Water, Heritage and the Arts for your invitation for me to speak today and for the opportunity to participate in your NAIDOC celebrations for 2008.

For those who don’t know me, I am the Aboriginal and Torres Strait Islander Social Justice Commissioner and National Race Discrimination Commissioner at the Human Rights and Equal Opportunity Commission or HREOC. 

HREOC is a national, independent, statutory body established under the Human Rights and Equal Opportunity Commission Act 1986. HREOC is your national human rights institution. 

Slide 2

Annual Reports

Social Justice Report 2007 cover Native Title Report 2007 cover

As the Social Justice Commissioner my functions are to monitor the enjoyment and exercise of human rights for Indigenous Australians.  

Under the HREOC Act and the Native Title Act, I am required to produce annual social justice and native title reports, some of which I hope you are familiar. These reports are tabled in the federal parliament each year and are available on HREOC’s website.

This years NAIDOC theme is Advance Australia Fair, a change from the 1972 theme of Advance Australia Where? This theme aims to encourage people to reflect on the Australian principle of “a Fair go” and for Australians to consider the inequalities still experienced by Aboriginal and Torres Strait Islander peoples in this country today.

Aden Ridgeway,  the Chairperson of the National NAIDOC Committee highlights the fact that while Australia as a nation is ‘one of the most prosperous countries in the developed world we cannot overlook those in our society who are disadvantaged and whose living conditions are more comparable to struggling nations’. 

In celebrating NAIDOC week here today, it is appropriate to reflect on the situation for Australia’s Indigenous peoples, the first peoples of this land, many of whom have cared for and been custodians of our country for many, many generations.

The challenge put forward to the Labor Government by this years NAIDOC theme, is ‘to deliver real change and improvements in the lives of Aboriginal people’. 

This speech is the fifth in a series of six that I am delivering nationally, which aim to outline an agenda for change across all areas of Indigenous affairs. I have termed this series of speeches Essentials for Social Justice.  

Previous speeches in this series have focused on: the needs of the stolen generations; reform and participation; achieving health equality and the close the gap campaign; and family violence and the northern territory intervention.

Slide 3

Caring for Culture
Caring for Country

  • Caring for country is Aboriginal law

  • Culture is integral to our relationship with our land

This leads me to the topic of my talk today which will focus on land and culture and is titled: ‘Caring for Culture, Caring for Country’. 

Caring for country is a phrase that those of you working in the Department of Environment, Water, Heritage and the Arts should be familiar with. However, the phrase ‘caring for country’, which the government has now branded their policy platform as ‘caring for our country’, must be based in the full understanding of what this means to Indigenous people. ‘Caring for country’ is not just the title of a policy, it is Aboriginal law. 

The importance of culture and its relevance to Indigenous peoples relationship to our lands, is not completely understood and acknowledged by all Australians. 

This is evidenced by the fact that governments continue to develop Indigenous land policy in isolation to other social and economic areas of policy.

In saying this, it is encouraging to hear both the Attorney General and the Minister for Families, Housing, Community Services and Indigenous Affairs discuss the need to improve the social, cultural and economic outcomes of land policy, in particular native title. The Attorney General has also announced his desire to encourage all governments at the upcoming Native Title Ministers Meeting in July, to work together through ‘co-operative federalism’ to find a new approach to resolving native title and land issues.

Minister Jenny Macklin, in her Mabo Lecture, reiterated the frustration that we as Indigenous peoples feel. That is that Indigenous people have access to varying levels of ownership, control, use and access, or management of approximately 20% of the Australian continent, but are limited in our ability to use this significant asset to meaningfully leverage economic, social, and cultural outcomes. 

The ability of Indigenous people to take the greatest advantage of the native title system for our economic and commercial benefit - to leverage the system - is contingent on many factors that are often outside our control. 

As I reported in my Native Title Report 2007, and this has been echoed by senior experts in the field, the native title system - as it operates today – does not often deliver on the original objective of the Native Title Act. The original purpose of this legislation was to recognise and protect native title; in particular, 

to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system.

On many occasions, outcomes are being realised through negotiated agreements – although these often do not ultimately determine and recognise the underlying native title rights of Indigenous peoples. States and Territories have also now begun to engage more proactively in their legislative and policy endeavours to improve the current system.    

However, there is room for much improvement. In some areas, governments continue to pose a significant barrier to the realisation of indigenous people’s advancement, particularly through the oppositional approach that is taken to the recognition of Indigenous peoples’ rights to land through the formal native title system.

The outcomes of agreements are in large part determined by the attitude of governments and other parties to the negotiations.

Slide 4

Four Critical Steps

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

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

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

  4. Increasing the cross cultural competence of bureaucracy.

With the government purporting a changing attitude towards improving the lives of Indigenous people, there are a number of critical steps that are required to ensure that this aspiration is fully achieved.

These steps include:

  1. a full understanding, recognition and respect for Indigenous peoples rights to our culture and our country;
  2. developing policy that deals with Indigenous disadvantage from a holistic perspective; 
  3. engaging Indigenous people as major stakeholders in the development and implementation of policies and programs that affect us;  and
  4. increasing the cross cultural competence of bureaucracy to ensure policies and programs support the sustainability and self determination of Indigenous communities. 

These steps are very broad and apply to all area’s of Indigenous policy including land management, cultural heritage and native title. 

Only once we have successfully implemented these steps can we pride ourselves as a mature nation, one that embraces Indigenous peoples, our unique culture and traditions and recognises and respects us as the First Peoples of Australia.  

So how do we do this? What do these points mean in practice? Particularly for you, the Department of Environment, Water, Heritage and the Arts.

Slide 5

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

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

  • asset/commodity vs foundation/life

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

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

The first step is a full understanding, recognition and respect for the rights and responsibilities of Indigenous peoples to our culture and our country by the Australian community and all levels of Government. 

Through the introduction of legislation such as the Native Title Act, and the Cultural Heritage Act, the Australian Government and the Australian people are achieving a degree of recognition and respect for the unique rights that Indigenous peoples have to our lands.  Policies and programs developed by your Department, including the Indigenous Heritage Program and Indigenous Protected Areas are also contributing to increasing levels of recognition.

However, as I stated earlier, I am not convinced that there is a full understanding of the importance of culture and its relevance to Indigenous peoples’ relationship to country, or to the broader social and economic improvement in the lives of Indigenous people.

In saying this, it is important to appreciate the two world views of what country means to people. For non-Indigenous people and land owners, land is a commodity to be bought and sold, it is an asset to make a profit from, and it provides a level of sustainability for those who choose to make a living off it, for as long as it is tenable. For non-indigenous Australians, land may also be their ‘home’. 

Land is also our ‘home’. However, the responsibilities that go with our home do not allow us to sell up or move on when it is no longer tenable, the land is our mother, it is steeped in our culture, and we have a responsibility to care for it now and for generations to come. This care in turn sustains our lives – spiritually, physically, socially and culturally - much like the farmer who lives off the land.

Slide 6

‘The land is my backbone…I only stand straight, happy, proud and not ashamed of my colour because I still have land. I can paint, dance, create and sing as my ancestors did before me.

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 ancestors, who live in the times of history, planned everything 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.

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 foundation’.

Galarrwuy Yunipingu
Australian Catholic Social Justice Council, Recognition:
The Way Forward.

An old friend of mine, Galarrwuy Yunipingu expresses this understanding very clearly, I quote:

The land is my backbone…I only stand straight, happy, proud and not ashamed about my colour because I still have land. I can paint, dance, create and sing as my ancestors did before me.

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 ancestors, who live in the times of history, planned everything that we practice now. The law of history says that we must 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 so did my ancestors of the same land…My land is my foundation.1

Galarrwuy’s words highlight the fact that our land is fundamental for a healthy individual, family, clan group, society, community, and nation. Aboriginal law and life originates in and is governed by the land. Aboriginal identity and sense of belonging comes from our connection to our country.  

Slide 7

The Declaration on the Rights of Indigenous 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.

International law, including the Declaration on the Rights of Indigenous Peoples, also provides for the protection of Indigenous peoples rights to care for our country, and rights to care for our culture.  

In particular the Declaration affirms and recognises Indigenous peoples rights to maintain and strengthen our relationships with our lands, territories, waters and resources and to ensure their viability for future generations. This is reinforced by the right to practice and revitalise our cultural traditions and customs including our dances, songs, and stories which also contribute to the broader Australian communities visual and performing arts and literature. 

To fully understand this, it must be accepted and acknowledged that culture is the key to caring for country, and caring for country is in turn the key to the maintenance and strengthening of our culture and well-being.

Slide 8

2. Developing Indigenous policy from a holistic perspective

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

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

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

This takes us to the second critical step which requires a holistic approach to overcoming Indigenous disadvantage. 

Not only are land rights and native title policy inconsistent with other area’s of policy, but each State and Territory have also developed alternative land regimes, which in some cases are inconsistent with the national approach.

In October 2007, the Australian National Audit Office released the findings of a performance audit into whole of government Indigenous service delivery arrangements. They found that the mainstreaming of Indigenous services provided Australian Government departments with an opportunity to develop more integrated solutions to entrenched Indigenous disadvantage.     

While the report found that implementation of the Government’s policy objective was progressing, a stronger collective focus by departments was required to meet their priorities, and to inform decisions relating to the effectiveness of ongoing administrative arrangements.2

However, the current Indigenous policy platform remains isolated, disconnected and disjointed. If there is to be real change in Indigenous peoples lives, governments must work collaboratively and develop policy that deals with Indigenous disadvantage from a holistic perspective. 

Slide 9

A minimum standard across all jurisdictions

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

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

  • evidence based policy with built in evaluation mechanisms

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

There is an urgent need for Government to develop mechanisms which ensure that rights are expressed, applied and exercised equally and consistently across the country. Legislative arrangements are required which, while recognising the cultural diversity of Indigenous nations, provide a minimum standard across all levels and jurisdictions of government to:

  • ensure the effective participation of Indigenous peoples in the development of policies which directly affect our lands and waters; 
  • consult with Indigenous peoples to get our free, prior and informed consent for any proposals on our lands and waters; 
  • emphasise policy approaches which are evidence based, supported by trial processes and ongoing evaluations that involve indigenous peoples; and
  • ensure that legislative developments do not remove or restrict any existing rights;  legislative or otherwise.

Slide 10

‘The resolution of native title claims is a means to an end, rather than an end to a means. Achieving native title to traditional country can lead to the enhancement of self respect, identity and pride for indigenous communities…native title can also be seen as a means of indigenous people participating in a more effective way in the economic, social and educational benefits that are available in contemporary Australia. Obtaining a final determination of native title, where that is achievable, can be a stepping-stone to securing those outcomes but cannot, of itself secure them’.

Merkel J
Rubibi Case

As Justice Merkel in the Rubibi native title case pointed out:

the resolution of native title claims is a means to an end, rather than an end itself. Achieving native title to traditional country can lead to the enhancement of self respect, identity and pride for indigenous communities native title can also be seen as a means of indigenous people participating in a more effective way in the economic, social, and educational benefits that are available in contemporary Australia. Obtaining a final determination of native title, where that is achievable, can be a stepping-stone to securing those outcomes but cannot, of itself, secure them.

The native title system and land rights regimes should supplement and be supplemented by other relevant area’s of policy to ensure that they are fully effective.

Prime Minister Rudd in his Apology to the Stolen Generations, committed ‘to closing the gap between Indigenous and non-Indigenous people in the areas of life expectancy, educational achievement and economic opportunity’.

Statistics confirm that the health outcomes in rural and remote areas of Australia are adversely affected by poor health among Aboriginal and Torres Strait Islander peoples who make up a greater proportion of residents in those areas. 

However, access to traditional lands can act as a determinant of health status, particularly where that land is culturally significant and provides sources of food, water and shelter.

A recent study conducted by the Menzies School of Health Research in collaboration with the traditional owners from Western and Central Arnhem Land, assessed the health outcomes of Indigenous people in relation to their involvement in natural and cultural resource management. 

The Healthy Country: Healthy People Study3 found that Indigenous participation in both customary and contemporary land and sea management practices, particularly by those people living on homelands, are much healthier, with significant reductions in the rates of diabetes and cardiovascular disease.

The study also confirmed that removing Indigenous peoples from their homelands had a negative effect on the health of both the tropical landscapes and those people removed, demonstrating a direct association between Indigenous ‘caring for country’ practices and a healthier, happier life.

Likewise, for Wattaru, South Australia in the Anangu Pitjantjatjara Lands, the health outcomes have also improved, and this is in part credited to the Ku-ku Kan yini Project initiated in 2003. This local community --- South Australian Government partnership has been successful in combining traditional and contemporary land management techniques resulting in increased employment outcomes and self esteem in the community, and has assisted in the control of diabetes.4

Another area that requires recognition of the contribution to improving the lives of Indigenous people, is that of the indigenous art industry. This industry contributes $100 million annually to the Australian economy with very little of this actually being returned to the artists or their communities and no protection to ensure that it does. However the social, cultural and economic benefits that are derived from the Indigenous art centres are undeniable.5

The Indigenous arts sector generates important benefits in the area of biodiversity maintenance and natural resource management as well as maintaining culture and generating income and employment opportunities. 

If we are serious about closing the gap for Indigenous people, particularly those living in remote communities, then we must start with what we know. That is that, employment and economic development opportunities that are built on caring for country, and caring for culture, improves the lives of Indigenous people.

This of course is not only beneficial to Indigenous people. Indigenous peoples living on country also play a major role in addressing issues of national interest. 

For example, Indigenous people across Australia, contribute to managing the impact of feral animals and weed control, as well as providing border protection in remote coastal areas. And as many of you here today would know, much of this work is done voluntarily.

Through programs such as Working on Country,  a program administered by your Department, environmental outcomes such as the maintenance, restoration, and protection of Australia’s land, sea and heritage environment, can be achieved by contracting Indigenous people to provide these necessary environmental services. Programs such as this benefit the Australian community, but at the local level, employment opportunities which allow the Indigenous custodians of the land to continue their cultural responsibilities also advance the livelihoods of Indigenous people, and meet the quadruple bottom line. That is, the environmental, economic, social and cultural bottom line.

Slide 11

Rio Declaration and Agenda 21

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

  • Agenda 21:
    • Promotes the effective participation of Indigenous people in caring for country, but more specifically in the development of national policy approaches to land and resource management.

This approach to Indigenous rights was also reflected in the 1987 Rio Declaration, which recognises the vital role of Indigenous communities knowledge and traditional practices in environmental management, and the 1992 Agenda 21, which promotes the development of national policy approaches to Indigenous participation in land and resource management and caring for country. 

Slide 12

Climate Change: Indigenous issues

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

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

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

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

One area of national policy development which is still in its infancy in Australia is related to climate change. With the ratification of the Kyoto Protocol, Australia is now committed to a target of reducing greenhouse gas emissions by 60 per cent on 2000 levels by 2050.  

But what does this mean for Indigenous Australians? 

At the recent United Nations Permanent Forum in New York, Indigenous peoples from around the world voiced their concerns which predict that they will bear the brunt of climate change impacts. They also expect that they will be required to contribute their cultural and intellectual knowledge on Australia’s valuable biodiversity, to develop mitigation strategies ‘in the national interest’.

The effects of climate change are already being experienced by Indigenous peoples, particularly on island communities, both in the Torres Strait and other islands and communities along the coastline of Australia, and also those Indigenous groups whose lives, and maintenance of culture, depends on the Murray Darling River. Impacts include environmental refugees’, dispossession, and environmental, cultural and spiritual impacts.

However, to date, there is little data or analysis on the direct impacts of climate change on Indigenous peoples in Australia. 

Slide 13

Climate Change: Inclusive Policy

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

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

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

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

Australia is rapidly developing climate change policy and departments such as yours, the Department of Climate Change, the Department of Families, Housing, Community Services and Indigenous Affairs, the Attorney General’s Department and others including the Department of Health, must work together with the full engagement and participation of Indigenous people in the development of policies both domestically and internationally, concerning climate change from the outset.

The involvement of Indigenous peoples in international negotiations for a Post Kyoto climate change regime is essential. Particularly, in relation to the development of culturally inclusive rules around national emissions trading schemes and the potential for international investment. 

On my reading of the Garnaut Review, I have found limited reference to Indigenous peoples, and no factoring in the impact a national trading scheme might have on Indigenous land tenure. Similarly, there have been only one submission from Indigenous organisations outlining an Indigenous perspective – something that might also reflects on the lack of engagement with Indigenous peoples on this issue to date.

Garnaut’s 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. 

Minister Macklin in her Mabo Lecture also announced that over the next six months the Australian government will be embarking on a new approach which will include the development of the Indigenous Economic Development Strategy.  The Minister identified the need to maximise opportunities for economic development through native title and land based outcomes. Climate change policy, in the context of mitigation strategies should also be discussed in the development of the Economic Development Strategy.

Here is an instance where two policies could provide a collaborative approach to achieving outcomes.           

Slide 14

The Western Arnhem Fire Abatement Project (WALFA)

  • Improved fire management = carbon offset

  • Commercial agreement recognising traditional Indigenous ecological knowledge through savannah burning mitigating wildfire

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

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

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

If you need an example of how this would work in a practical sense you should look to my Native Title Report 2007. It profiles the Western Arnhem Land Fire Abatement (WALFA) Project. 

The project anticipates the potentially devastating impacts of climate change for Indigenous peoples, and aims to generate opportunities for Indigenous communities to engage in culture based economies.  The culture based economy concept first and foremost supports Indigenous people’s choices around economic development. It fosters an approach around the provision of environmental services as a means to support livelihoods and an economic approach that works primarily through Indigenous people living on country.

The Fire Abatement Project in Western Arnhem Land, where savannah burning is mitigating wild fires, has resulted in a tradable carbon offset. Traditional owners have entered a commercial agreement based on traditional Indigenous ecological knowledge, which is providing economic, cultural, social, and environmental benefits for Indigenous people and the wider Australian community.  

Indigenous participation in caring for country and land and environmental management programs such as the WALFA offer opportunities for the government and industry to create and support real jobs for Indigenous peoples living in remote regions.  Community initiatives such as WALFA are allowing Indigenous people to meet cultural obligations to their lands and waters, and at the same time, provide a service to the community. 

This is an opportunity for the Australian government to leave behind the legacy of Indigenous disadvantage and policy failure and to be innovative and serious about securing economic outcomes that meet both the aspirations of government, but also meet the social and cultural aspirations for Indigenous Australians. 

Slide 15

3. Engaging Indigenous People as major stakeholders

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

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

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

  • government investment in capacity building of Indigenous communities is essential

The third critical step required to achieve a significant improvement in the lives of Indigenous Australians: is for the Australian Government to recognise, endorse and treat Indigenous people as major stakeholders in the development of all policy in Australia, particularly policy that directly or indirectly affects our lives and the exercise and enjoyment of our human rights.

There is a pressing need to ensure the full participation of Indigenous peoples in policy making processes.   

It must be fully accepted that Indigenous stakeholders are, in the words of Jenny Macklin, ‘substantive players and stakeholders in the future development of the nation’. 

Effective Indigenous participation in decision making has been confirmed as essential to ensuring non-discriminatory treatment and equality before the law, and recognises the cultural distinctiveness and diversity of Indigenous peoples.

Much of the failure of service delivery to Indigenous people and communities, and the lack of sustainable outcomes, is a direct result of the failure to engage appropriately with Indigenous people and of the failure to invest in building the capacity of Indigenous communities. This includes the lack of support for Indigenous staff, and the lack of appreciation of the skills that we bring, in particular to land and sea management on our country.  

Slide 16

Free, Prior, and Informed Consent

  • no coercion or manipulation used to gain consent;

  • 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 affects the rights of Indigenous peoples;

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

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

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

  • 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 requirement for free, prior, and informed consent; and

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

One universally recognised right is the right of Indigenous peoples to the ownership and control of their lands, territories and natural resources, and to give - or not give - their free, prior and informed consent over developments on their land.  This principle applies not only to administrative acts and decisions about land use, but also to the legislative process itself.

‘Free, prior and informed consent recognises indigenous peoples’ inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them, based on the principle of informed consent’.6

Slide 17

The Declaration on the Rights of Indigenous 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.

The Declaration on the Rights of Indigenous Peoples reinforces the existing rights of Indigenous people to give their free, prior and informed consent before certain actions affecting them can occur, including:

  • a right to the land we traditionally own;
  • a right to compensation for land if it is taken, occupied, used or damaged without our free,  prior and informed consent; 
  • a right to the conservation and environmental protection of our country;  and most importantly
  • a right to determine and develop priorities and strategies for the development or use of our lands and resources. 

However, for indigenous people to fully engage as stakeholders, we must also be fully appraised of the benefits and the costs resulting from legislative and policy developments, or negotiated agreements.  

Slide 18

HREOC National Survey on Land, Sea and Economic Development 2006

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

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

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

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

In my Native Title Report 2006, I present the results of a national survey I conducted on land, sea and economic development. The survey results demonstrated that the majority of traditional owners did not have a good understanding of land agreements. This raises questions about our capacity to effectively participate in negotiations and consequently limits our ability to leverage opportunities from our lands. 

The survey also highlighted the need for an information campaign to improve understanding of land regimes and the funding and support programs available to assist indigenous people in pursuing economic and commercial initiatives.  

Across remote Australia, ICC’s in particular are responsible for brokering capacity development and employment, participation, training and enterprise opportunities for Indigenous Australians in their region. 

To ensure that the Government’s policies are appropriately targeted to achieve the desired outcomes, the Government will require reliable information about traditional owner priorities for land. In the same way, traditional owners require information about the Government’s policies before they can make informed decisions about land and future social, cultural, and economic opportunities. 

There is currently no mechanism or communication strategy for this to occur.

Slide 19

4. Increase the cross cultural competence of bureaucracy

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

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

  • Legislative or constitutional changes may be required

  • A consistent collaborative approach is required

  • The full participation and engagement of Indigenous peoples at all levels is required n nA change in attitude toward Indigenous people as stakeholders in the nation is required

The fourth and final step requires a change in approach by the bureaucracy from a system that predominantly meets the policy aspirations of government to a system that is accountable to the achievement of healthy Indigenous communities through sustainable development and self determination. 

The support we require from government is not in the form of mainstreaming, or complete regulation of our affairs. It will be in the form of collaborative partnerships where both indigenous people and governments work together as equal partners, to achieve sustainable outcomes that address the development aspirations of Indigenous peoples.

While much of the last 100 years of Indigenous policy has been claimed to have been paved with good intentions, the reality is that it has perpetuated the disadvantage experienced by Aboriginal and Torres Strait Islander peoples today. 

You now have an opportunity to create a new path, both paved with good intentions but overcoming the current state of affairs, and leaving behind the legacy of past governments.

This may require legislative or constitutional amendments. It may require heads of government to work together collaboratively to improve the lives of indigenous peoples. It definitely will require the full participation and engagement of indigenous peoples in decision-making at all levels, from the local level to providing ministerial advice. And it definitely will require government officials to change their attitudes towards indigenous peoples as stakeholders in the nation.

With a new government in place, we have an opportunity to start fresh. This started with the Apology that symbolised a clean break from the past policies and governments. It is crucial that in seeking to find a new approach to addressing indigenous disadvantage, that we work collectively to achieve this.

Slide 20

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

Friends, I would like to encourage you all today, in the spirit of this years NAIDOC theme, to ‘Advance Australia Fair’ and be part of advancing the livelihoods of Aboriginal and Torres Strait Islander people through the full acceptance that 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.

When your developing policy regarding Indigenous lands, remember that ‘caring for country’ is not just the title of a policy, it is Aboriginal law. 

Only when governments are willing and able to:

  • fully understand, and respect Indigenous peoples rights to our culture and our country, and
  • develop policy that deals with Indigenous disadvantage from a holistic perspective, with the full and effective participation and engagement of Indigenous peoples, will we have been successful in changing the mindset of the bureaucracy and improving the lives of our Indigenous brothers and sisters.

I hope you enjoy NAIDOC week and participate in the many events that are taking place around Canberra this week.

And please remember, from self respect comes dignity, and from dignity comes hope.

Thank you.

Slide 21

For further informationn


[1] Aboriginal and Torres Strait Islander  Social Justice Commissioner,  Native Title Report,  January – June 1994,  Preface,  available online at:  http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html,  accessed on 30 June 2008.  As cited in Australian Catholic Social Justice Council,  Recognition:  The Way Forward.

[2] Australian Government,  Australian Public Service Commission,  State of the Service Report:  Whole of Government,  APS developments,  available online at: 
http://www.apsc.gov.au/stateoftheservice/0607/parttendevelopments.htm,  accessed 26 June 2008.

[3] Charles Darwin University,  Origins Indigenous Health,  Healthy Country Healthy People,  Newsletter,  Edition 2-2007,  pp13-14.

[4] Aboriginal and Torres Strait Islander Social Justice Commissioner,  Social Justice Report 2005,  pp26-27,  also available online at:  http://www.hreoc.gov.au/social_justice/sj_report/sjreport05/pdf/sjr-chap... ,  accessed 30 June 2008.

[5] National Association for the Visual Arts Ltd,  Submission to the Inquiry into Australia’s Indigenous Visual Arts and Craft Sector,  24 November 2006,  p1.

[6] Commission on Human Rights,  Sub-Commission on the Promotion and Protection of Human Rights,  Working Group on Indigenous Populations,  Twenty-second session,  19 -13 July 2004,  p.5.

Address

Australia