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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