Statement by the National Native Title Council on behalf of the Indigenous Peoples Organisations Network of Australia

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Statement by the National Native Title Council
on behalf of the
Indigenous Peoples Organisations Network of Australia

to the
Expert Mechanism on the Rights of Indigenous Peoples

9-13 July 2012, Geneva

Supporting Organisations:

National Native Title Tribunal

Gugu Badhun Limited

New South Wales Aboriginal Land Council

Australian Human Rights Commission

Item 4: Follow-up to thematic studies and advice – Follow-up report on Indigenous peoples and the right to participate in decision-making, with a focus on extractive industries

Thank you Mr Chairman

Before I begin, the IPO Network of Australia welcomes the proposed visit by the Special Rapporteur on the Rights of Indigenous Peoples to discuss extractive industries and their relationship with the State and Indigenous peoples in Australia.

Mr Chairman

In 1992 the Mabo decision on native title was celebrated by Indigenous peoples and feared by many others in Australia. The Australian government initially responded to the Mabo decision by introducing the Native Title Act 1993.

Through this Act, it was hoped to establish a social justice package for indigenous peoples that included a raft of measures such as the purchase of land and the potential to benefit from those lands.

The relationship between Indigenous peoples and the extractive industry in Australia has had a complex and varied history since the introduction of the Native Title Act.  Initially, there were concerns raised by extractive industries particularly the mining industry, that the additional impost of native title delayed timeframes and increased their costs.

These concerns have slowly dissipated over time, and the extractive industry has increasingly entered into negotiations with native title groups under the right to negotiate provision of the Native Title Act.  This provision allows for the extractive industry to negotiate with Indigenous peoples for access to land and includes those people's with registered claims yet to be resolved as well as those with fully determined rights and interests.  This provision has allowed for a “seat at the negotiating table” resulting, in some cases, with significant economic benefits for Indigenous peoples, their families and communities.

With over 400 native title claims yet to be determined, the right to negotiate continues to provide a fundamental right for Indigenous people to access and share in benefits for what will inevitably mean access to their lands by the extractive industry.

Mr Chairman, the Native Title Act was proclaimed with full and proper recognition that it was a special measure under both the United Nations Convention on the Elimination of All Forms of Racial Discrimination and Australia’s Racial Discrimination Act 1975.

This special measure has provided the extractive industry with the environment under which to undertake negotiations with Indigenous peoples.  The original spirit of the Native Title Act 1993 is clearly stated in its preamble:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests.  Their rights and interests under the common law of Australia need to be significantly supplemented … A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation, and if not, in a manner that has due regard to their unique character.

The preamble goes on to say that Governments should facilitate negotiations that satisfy claimants’ aspirations to their land, including proposals for economic use of the land.  This should have provided the basis for the recognition of native title rights and interests through a negotiation and consensus approach.  Unfortunately, however the preferred option for respondent parties was litigation and legislative mechanisms were used by Governments to initiate amendments that reduced the rights of native title groups over their land.

Article 32 of the Declaration on the Rights of Indigenous Peoples provides for the right of Indigenous peoples to determine their own priorities for the development or use of their lands as well as the right to free, prior and informed consent for any project affecting their lands or territories. 60% of mining activity in Australianeighbours Indigenous communities and the extractive industry has become one of the biggest employers of Indigenous peoples outside the Government sector.

Like self-determination, free, prior and informed consent reinforces all of the rights contained within the Declaration. According to the Human Rights Council, free, prior and informed consent has been identified as a ‘requirement, prerequisite and manifestation of the exercise of our right to self-determination’. 

In Australia, free, prior and informed consent has formed a significant platform for fair and reasonable decision making, particularly in relation to the negotiation of comprehensive agreements with the extractive industry.  Negotiating agreements are becoming common practice and Indigenous peoples are gaining confidence in determining their own beneficial outcomes.

Agreements negotiated between mining companies and indigenous communities or other land connected peoples are increasingly important in terms of formalising the conditions upon which mining can take place on indigenous lands, as well as the compensation and benefit sharing arrangements that flow from mining.

However Indigenous peoples are not able to fully experience the benefits of free, prior and informed consent. Indigenous peoples do not have genuine decision-making authority and power over their lives and futures.  That power and authority continues to rest in the hands of States.

Currently there are no examples of indigenous people having negotiated royalty contributions or ownership rights over corporations.  Article 26 of the Declaration provides that Indigenous peoples have the right to their lands, territories and resources which they have traditionally owned, as well as the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership.

Despite the recognition outlined in the Expert Mechanisms Report on the right to participate in decision-making with a focus on extractive industries that ‘international law has developed a clear principle of the right of indigenous peoples to permanent sovereignty over natural resources’, the Convention on Biological Diversity recognises the sovereign rights of States over their natural resources in areas within their jurisdiction. States also have the obligation to take appropriate measures with the aim of sharing the benefits derived from their use in a fair and equitable manner.

Mr Chairman, it is time for Indigenous Peoples to be fully afforded the benefits from their traditional lands.

Indigenous people must rely heavily on the development of strong relationships with key stakeholders like peak industry associations representing exploration, mining and minerals processing companies.  In Australia, one industry body’s members account for more than 85% of annual minerals production in Australia and a slightly higher proportion of mineral exports.

Some key pilot projects and activities can occur through these relationships such as the development of the international Extractive Industries Transparency Initiative (EITI). Through the Centre for Social Responsibility in Mining (CSRM) a project has also been developed that focus on the gendered nature of agreements and agreement-making processes, to identify factors that enable and/or constrain the achievement of gender equality and to understand the extent to which these factors influence women’s economic and development capacity.

Economic sustainability of Indigenous communities is critical to the future of their communities and it’s critical for health and well being.  At the same time and just as critical is Indigenous cultural sustainability.  For Indigenous peoples this relates to how they can maintain their cultural identity.

According to a follow-up report of the Human Rights Council there are three pillars of the Guiding Principles on business and human rights as they relate to indigenous peoples and the right to participate in decision making.

• State’s duty to protect against human rights abuse by third parties;
• Corporate responsibility to respect human rights; and
• Access to remedy

States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, when human rights abuses occur, those affected, including Indigenous peoples, have access to remedy.

Recommendation

We recommend:

• that the Expert Mechanism on the Rights of Indigenous Peoples encourage and urge States to develop mechanisms that will encourage extractive industries to engage with Indigenous peoples to implement the UN Declaration on the Rights of Indigenous Peoples; and
• that the Expert Mechanism on the Rights of Indigenous Peoples acknowledge and address the Rio+20 Indigenous Peoples Declaration on Sustainable Development to access and share in the benefits from their lands, territories and resources.

Thank you