1. Essentials for Social Justice: Land and Culture Caring for Culture, Caring for Country Tom Calma Aboriginal and Torres Strait Islander Social Justice Commissioner Department of the Environment, Water, Heritage and the Arts Canberra 7 July 2008

2. Annual Reports

3. Caring for Culture Caring for Country Caring for country is Aboriginal law Caring for country is Aboriginal law Culture is integral to our relationship with our land Culture is integral to our relationship with our land

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.

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 an appreciation and acceptance of two world views of what country means to both indigenous and non- indigenous people asset/commodity vs foundation/life asset/commodity vs foundation/life the relevance of culture to land and social and economic improvement for indigenous people 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

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 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.

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.

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

9. A minimum standard across all jurisdictions ensure effective participation of Indigenous peoples in the development of policies that affect our lands and waters 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 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 evidence based policy with built in evaluation mechanisms ensure that legislative developments do not remove or restrict existing rights ensure that legislative developments do not remove or restrict existing rights

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

11. Rio Declaration and Agenda 21 The Rio Declaration states that: 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: 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.

12. Climate Change: Indigenous issues Australia is now a signatory to the Kyoto protocol and has targets to meet by 2050 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’ 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 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. impacts for Indigenous people include: environmental refugees, and dispossession from their lands, leading to environmental, cultural and spiritual impacts.

13. Climate Change: Inclusive Policy relevant government departments must work with each other and with Indigenous people to develop inclusive climate change 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 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 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 climate change policy should be developed in conjunction with the Indigenous Economic Development Strategy

14. The Western Arnhem Fire Abatement Project (WALFA) Improved fire management = carbon offset Improved fire management = carbon offset Commercial agreement recognising traditional Indigenous ecological knowledge through savannah burning mitigating wildfire Commercial agreement recognising traditional Indigenous ecological knowledge through savannah burning mitigating wildfire Aims to generate opportunities for Indigenous communities through culture based economies 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 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 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

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 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 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 the cultural distinctiveness and diversity of Indigenous people must be recognised and respected government investment in capacity building of Indigenous communities is essential government investment in capacity building of Indigenous communities is essential

16. Free, Prior, and Informed Consent no coercion or manipulation used to gain 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; 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; 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 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; 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 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. consent includes the right to withhold consent and say no to a proposal.

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. 1.It explicitly recognises that Indigenous people have a right to the land we traditionally own. 2. 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. 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. 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.

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

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 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 we need the support of government in the form of collaborative partnerships (equal partners) to achieve this Legislative or constitutional changes may be required Legislative or constitutional changes may be required A consistent collaborative approach is required A consistent collaborative approach is required The full participation and engagement of Indigenous peoples at all levels is required The full participation and engagement of Indigenous peoples at all levels is required A change in attitude toward Indigenous people as stakeholders in the nation is required A change in attitude toward Indigenous people as stakeholders in the nation is required

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

21. For further information Please visit the HREOC website at: Please visit the HREOC website at: www.humanrights.gov.au Contact HREOC on 02 9284 9600 Contact HREOC on 02 9284 9600