Corporate Responsibility - Developing principles on Resource Development on Indigenous land: Human Rights Based Approach to Mining on Aboriginal Land

Human Rights Based Approach to Mining on Aboriginal Land

Human rights constitute the ethical basis of the social contract between those who exercise power and accrue wealth, and those whose lives are affected by this exercise and accrual. Where such a relationship has no ethical basis and is inconsistent with human rights principles it is not a sustainable relationship. Coercion may prolong it for some time but this is costly to maintain and eventually becomes exhausted. Where human rights principles form the basis of a relationship between mining companies and Indigenous communities, then, by necessity it is a sustainable relationship based on free and informed consent.

Summary Equity and Non-Discrimination Cultural Rights Self-Determination Development Principles

Summary

The human rights principles that are relevant to developing a sustainable relationship between Indigenous people and mining companies are racial equality and non-discrimination; effective participation; right to protection and maintenance of culture; and self-determination. Mining companies committed to incorporating human rights into policy and practice, must move beyond the constraints of regulatory regimes which are inconsistent with these principles and develop a relationship with Indigenous people based on consent.

Policies which are consistent with human rights standards will:

• Respect and protect the cultural and political integrity of Indigenous people;
• Obtain the informed consent of Indigenous people in relation to issues that affect them;
• Protect rights not balance interests; and
• Ensure rights-based benchmarks are used to measure and monitor practices.

Equality and Non-Discrimination

Racial equality is enshrined in the main international treaties on human rights: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CROC), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Australian government has voluntarily joined all these treaties, committing Australia to ensuring the treaties' standards are met in this country.

The standard of equality required at international law is very high. There are two elements to the definition of racial discrimination, which together, contravene the notion of equality;

• First, a distinction, exclusion restriction or preference based on race is required; and

• Second, the distinction based on race must nullify or impair the recognition and enjoyment of human rights by a particular racial group.

In other words, racial discrimination does not occur simply because one racial group is treated differently to another, but rather because that differential treatment has the effect of impairing or nullifying the enjoyment by that group of their fundamental rights.

This may appear to be a technical distinction but it is fundamental to the way in which discrimination laws operate within Australia today. If discrimination is simply differential treatment on the basis of race, then equality is achieved through applying all laws identically to each individual, without recognising that the effect of those laws has a differential impact on ethnic groups. If however, equality is about ensuring that racial groups have equal enjoyment and access to the benefits of society and participate equally in determining its future, then differential treatment may not necessarily imply discrimination and may even be required to achieve equality. The former approach to equality, adopted and promulgated by the present government, is known as formal equality. The latter approach is known as substantive equality, and is the approach adopted at international law.

Of particular relevance to the relationship of mining companies to Indigenous people is differential treatment that aims to protect and maintain the distinct cultural and political integrity of Indigenous people. This is required under a substantive equality approach. This differential treatment should not be confused with special measures or affirmative action which are essentially measures aimed at overcoming past discrimination.

The treaty committee bodies, which assist in monitoring and implementing each treaties' provisions, have elaborated the requirements to enable Indigenous peoples to maintain their distinctive cultures. These requirements form part of states obligations to guarantee equality and non-discrimination before the law. The Committee on the Elimination of Racial Discrimination (CERD Committee), has confirmed that in terms of their application to Indigenous peoples, the Convention's obligations require States to:

a) recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation; b) ensure that members of Indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on Indigenous identity; c) provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; d) ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; e) ensure that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and to practice their languages. f) recognize and protect the rights of Indigenous peoples to own, develop, control and use their communal lands and territories and resources and, where they have been deprived of their informed consent, to take step\s to return these lands and territories. Only where this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories. [1]

An important development in the international jurisprudence on equality has been the development of the rights to 'effective participation' as integral to racial equality. This right emanates from Article 5(c) of ICERD which requires equal participation in public life and is listed at (d) in the Committee's General Recommendation on Indigenous Peoples outlined above.

The CERD Committee, in considering the 1998 amendments to the NTA and its effect on Indigenous people observed that the process by which the amendments were reached and the failure of the government to obtain the consent of Indigenous people to the amendments were a breach of article 5(c) of ICERD. They reiterated their concerns in their Concluding Observations in relation to Australia's performance under ICERD. A copy of these decisions are at attachment A to this document.

Thus equality is not only about a comparison of standards between racial groups, it is also about the process by which the disparity in those standards are redressed and cultural identity is recognised. Indigenous people must not only participate in that process they must lead that process and determine its course. They must give their informed consent to that process.

Cultural Rights

While it can be seen that the right of Indigenous peoples to maintain their culture is protected under the notion of substantive equality, a further guarantee of cultural rights is Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which provides that:

Members in ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

There has been significant resistance from Indigenous groups to their rights being equated with the rights of cultural minorities within a particular State. Indigenous people, as the first peoples of a territory, with a specific history and relationship to that territory including one of forced colonization, have distinct rights in the context of cultural, social, economic and political protection. While minority group rights include Indigenous peoples they do not exhaust their rights.

The Human Rights Committee, which monitors States' performance under ICCPR, has interpreted the notion of 'culture' under Article 27 broadly, observing 'that culture manifests itself in many forms including a particular way of life associated with the use of land and resources, especially in the case of Indigenous peoples.

The level of protection that Article 27 gives to Indigenous culture under threat by development and economic activity has also been considered by the Committee, which has indicated that the State is under an obligation to ensure that such activity has, at most, only a limited impact on the way of life of persons belonging to a minority.

The Committee will consider, in any complaint before it, whether the State has weighed up the interests of the group with the benefits of the proposed economic activity. Large scale activities, particularly involving the exploitation of natural resources, could constitute a violation of Article 27.

In assessing activities in the light of Article 27, State parties must take into account the cumulative impact of past and current activities on the minority group in question. Whereas different activities themselves may not constitute a violation of this article, such activities, taken together, may erode the rights of a group to enjoy their own culture.

Finally the Committee will consider whether the State has undertaken measures to ensure the 'effective participation' of members of minority communities in decision that affect them.

Again, as with the CERD Committee, the Human Rights Committee can be seen to be relying on effective participation as a means of ensuring that cultural rights are being protected. In July 2000, the Human Rights Committee commented upon the failure of the Federal Government to provide adequate protection to the heritage and culture of Indigenous Peoples of Australia as required by article 27. A copy of the decision is at attachment B to this document.

Self-Determination

The right of all peoples to self-determination is guaranteed at international law under Article 1 of ICCPR, article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and has been developed in the General Comments of the Human Rights Committee.

Article 1 of ICCPR and ICESCR states:

All peoples have a right of self-determination. By virtue that right they freely determine their political status and freely pursue their economic, social and cultural development.

All peoples may, for their own ends, freely dispose of their natural wealth and resources…In no case may a people be deprived of their own means of subsistence.

While the Australian government denies that Indigenous people in Australia are a people, entitled to the right of self-determination, the Human Rights Committee, in July 2000, at paragraph 9 of its Concluding Observations about Australia's performance under ICCPR (see attachment B) clearly recognized that the right of self-determination does apply to Aboriginal and Torres Strait Islander peoples.

These then are the significant human rights that should form the basis of a new relationship between the mining sector and Indigenous communities; equality, effective participation, cultural rights and self-determination.

Development

The Declaration on the Right to Development, adopted by the United Nations (UN) General Assembly in 1986, has been accepted by all government including Australia. This declaration confirms:

1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. 2. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

'Development' in this context does not simply mean 'economic growth', but is better understood as 'sustainable human development', which requires creating an environment in which people can develop their full potential and lead productive, creative lives in accordance with their needs and interests. Companies need to accommodate Indigenous rights to enjoy economic benefits of their land consistent with the right to development.

The UN General Assembly, by consensus, including Australia, recently emphasised the link between development and human rights, in outlining a program towards sustainable development, noting the interdependence of economic development, social development and environmental protection.

The rights to development and self-determination, while distinct, have an important inter-relatedness for the situation of Indigenous people in Australia. The Declaration on the Right to Development explains:

The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

Development and self-determination require Indigenous people to have meaningful control over, and involvement in, decisions regarding their own future. The 2001 meeting of the UN's Working Group on Indigenous Populations noted:

[a] general call for Governments to honour the treaties they were bound by and for the speedy adoption of the draft United Nations declaration on the rights of indigenous people. The failure of Governments to implement national legislation, international treaties or court decision in favour of indigenous peoples' ownership over land or resources was mentioned by several participants. All noted that this effectively denied indigenous people their right to development' [2]

Principles

Emerging out of these international human rights norms are some clear principles guiding the way in which policies regarding the treatment of Indigenous people should be formulated. The following four principles are fundamental to a rights based approach to company practice and policy formulation in Australia.

1. Human rights principles require that the cultural and political integrity of Indigenous people be respected and protected. This is achieved not only through the principle of self-determination but also through the notion of equality. The CERD Committee's General Recommendation 23 on Indigenous people confirms this principle

2. Human rights are not just a matter of exercising power consistently with human rights standards, such as equality. The relevant treaties and international law jurisprudence indicate that some of the power that institutions exercise actually be relinquished and relocated in the hands of those whose rights are affected by such power. In relation to Indigenous people this means handing control of 'Indigenous issues' over to Indigenous people. The requirement that Indigenous people effectively participate in decisions that affect them and their rights under international law, substantiates this principle. The principle of effective participation entitles Indigenous People to a right not only to be consulted in relation to Indigenous policy but to be involved to the point of giving or withdrawing consent.

3. Protecting rights is not the same as balancing interests. This point was clearly made by the CERD Committee in relation to the dialogue with the Australian government over the NTA amendments and Australia's heritage legislation. A relationship of racial equality is not one in which Indigenous people take their place, as just another interest group, among a vast range of non-Indigenous interest groups that might be affected by native title or other Indigenous issues. Rather it is one where Indigenous interests are equal to the combined force of non-Indigenous interests, in all their forms and manifestations. A policy program which is imposed rather than negotiated with the Indigenous people it directly affects is not based on a relationship of equality.

4. An important principle emerging from international law is that the enjoyment of human rights should be progressively realised. This principle requires companies to establish benchmarks for the realisation of rights and evaluate the merit of programs and policies against these benchmarks.

The legislative regimes within Australia aimed at protecting Indigenous people's rights fall far short of human rights standards. In this context it is extremely important that company practice and policy formulation not be constrained by or contained within Australia's legislative regimes.

1. General Recommendation 23, CERD Committee, 1997

2. Report on the Working Group's meeting, prepared for UN Sub-Commission on the Promotion and Protection of Human Rights, (UN document E/CN.4/Sub.2/2001/17, 9 August 2001), para 42.