Climate Change and Human Rights: Issues for Indigenous Peoples

• back to Human Rights Law Seminars

Climate Change and Human Rights: Issues and opportunities for Indigenous Peoples.

HREOC 20 August 2008

SPEAKING NOTES:

Thank you for the introduction and I thank HREOC for the opportunity to speak here today. Before I commence my discussion, I would also like to acknowledge the traditional owners of the country on which we meet, and pay my respects to their elders, both past and present.

To keep to point I do not intend to go into the science of climate change in this presentation.

Policy and legal reform by governments in response to climate change has become a priority and will continue to happen quickly. Changes are likely to be complex and the legal issues associated with these changes and their interactions with indigenous peoples are numerous and varied. It is imperative that consultation processes around these changes are accessible to all stakeholders and interest groups, particularly Indigenous peoples.

My presentation today will look at:

• Indigenous peoples’ participation in responses to climate change both nationally and internationally. This includes ways in which Indigenous people may choose to participate in local development opportunities through environment based commercial activities (carbon offset projects).
• Protecting and growing space for Indigenous peoples’ participation in climate change responses (emphasizing the need to preserve the existing rights and interests of Indigenous peoples in Australia – as a minimum).
• Finally, and briefly, I will touch on the impacts of climate change on Indigenous peoples and the ways in which Indigenous peoples may seek redress for damage and loss as a result of climate change.

These are all topics on which the Social Justice Commissioner, Tom Calmer, has published and discussed in many forums, along with other Indigenous leaders.

Participation and responses

• In Australia, to date there has been little space afforded for dialogue and collaboration with Indigenous peoples about responses to climate change. This is reflective of a similar issue internationally, where Indigenous peoples have needed to strongly assert their right to participate in global discussions and strategies to address climate change.
• Ever since the creation of the UNFCCC in 1992 and the subsequent Kyoto Protocol, Indigenous peoples have raised their concerns about Kyoto mechanisms, in particular carbon-markets, in many international forums.1

These concerns include:

• • That market incentives for ‘carbon sinks’ will lead to large-scale forest plantations and a consequent loss of traditional country and ecosystems2; and
  • That measures to mitigate climate change are based on a worldview of territory that reduces forests, lands, seas and sacred sites to only their carbon absorbing capacity.3
  • Forests, trees and other vegetation are used to indicate ‘country’ (land ownership and use rights) as well as provide shade, nourishment, medicines, tools and other resources for Indigenous peoples. Further, trees, vegetation, animals and insects are used as bio-indicators for the timing of practices and seasons. As such, trees and vegetation are enmeshed with native title, cultural and intellectual property rights.
  • The 2000 Declaration of Indigenous Peoples on Climate Change at the Hague sets out the position of Indigenous peoples on the UNFCCC and Kyoto Protocol.4 This position has been reiterated and built upon since 2000, by Indigenous peoples at subsequent UNFCCC conferences and through the work of the UN Permanent Forum on Indigenous Issues.
  • In 2008, the UN Permanent Forum on Indigenous Issues identified that a key barrier to the realisation Indigenous peoples coping and adaptation capacities is the lack of recognition and promotion of their human rights.5 Many of these rights are reflected in the UN Declaration on the Rights of Indigenous Peoples.
  • Indigenous people have a ‘special interest’ in this issue, not only because, through their physical and spiritual relationships with land, water and associated ecosystems, they are particularly vulnerable to climate change, but also because they have a specialized ecological and traditional knowledge relevant to finding the ‘best fit’ solutions to climate change. The importance of traditional knowledge is promoted in a number of international instruments, including the UN Convention on Biological Diversity (UNCBD) – which recognises the importance of Indigenous peoples’ traditional knowledge in the conservation and sustainable use of biodiverse ecosystems.6
  • Further, one of the purposes of the Commonwealth Environment Protection and Biodiversity Conservation Act (which embodies some of Australia’s international obligations under the UNCBD) is to promote a partnership approach to environmental protection and biodiversity conservation through recognising and promoting Indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity.7
  • Fundamental rights and freedoms set out in the UN Declaration on the Rights of Indigenous Peoples support the participation of Indigenous peoples in climate change strategies and responses.8 The Declaration also recognises that respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.9

Further, the Declaration provides that Indigenous peoples:

• have the right not to be subjected to forced assimilation or destruction of their culture.10
• have the right to practice and revitalize their cultural traditions and customs.11
• have the right to participate in decision-making in matters which would affect their rights.12and
• have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources.13

• Australia has ‘stepped up’ its response to climate change since ratifying the Kyoto Protocol and taking a lead role in negotiations at the UNFCCC Conference of the Parties in Bali last year. Two recent and prominent developments are the Garnaut Climate Change Review (commissioned by the States and Territories) and Federal Government’s Carbon Pollution Reduction Scheme (CPRS) Green Paper.
• I note the positive signal from both the Garnaut Review and the Federal Government’s Green Paper that acknowledges the potential contribution that Indigenous peoples can make to mitigate the impacts of climate change – noting particularly a traditional fire management project in the Northern Territory and Indigenous land managers in the forestry context. However, it is important not to particularize and limit the spectrum of possible projects in which Indigenous people can (and have a right to) participate.
• Australia’s mitigation and adaptation responses to climate change need to be interdisciplinary and multi-faceted in order to comprehensively address the causes and effects of current and potential impacts. This involves economic and social change, however, also clearly and inextricably involves protection of the environment and conservation of biological diversit. As such, Australia’s response should not ignore the objects of existing domestic legislation or international instruments to which it is a party (or to which it has signaled it is likely to become a party)14.
• The Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right to self-determination of all peoples, which includes a freedom and right to pursue economic, social and cultural development. Climate policy and mitigation strategies present a key opportunity to bring traditional knowledge and practices and economic markets together. It should not be passed over by ‘mainstreaming’ responses in a way that fails to accommodate the particular concerns and specialized interests of Indigenous peoples.
• In the context of development opportunities, the following examples outline ways in which Indigenous people are currently contributing, informally and formally, to environmental services through carbon abatement projects. They illustrate some of the tangible and intangible assets of Indigenous communities that may be realised through meaningful and respectful partnerships and investment.

West Arnhem Land Fire Abatement Project (WALFAP)

• The first example is the West Arnhem Land Fire Abatement project (WALFAP), which is a carbon offset project in western Arnhem Land in the Northern Territory. The West Arnhem Fire Management Agreement (the Agreement) effectively establishes a partnership between Darwin Liquefied Natural Gas, the Northern Territory Government, the Northern Land Council and traditional owners from coastal Maningrida and the headwaters of the Katherine and Mann rivers. It was formed to implement strategic fire management for the purposes of offsetting greenhouse gas emissions from a Liquefied Natural Gas plant in Darwin Harbour. Under the Agreement, private industry will contribute a minimum of $1 million per year to the project over 17 years.15
• The WALFAP reduces greenhouse gas emissions by adapting traditional fire management practices in what has been mostly unmanaged land (which is prone to unchecked wildfires). Unchecked wildfires contribute to over 40% of the Northern Territory’s greenhouse gas emissions and to around 2% of Australia’s national emissions.16 The project has direct and collateral ecological benefits, by reducing the net greenhouse gas emissions from wildfire and by conserving environmental and cultural values in the adjacent World Heritage-listed Kakadu National Park17.
• The project employs local Aboriginal land management rangers and facilitates and supports the transfer of Indigenous knowledge between generations as elders work with young people as part of the project.
• The Darwin Liquefied Natural Gas plant agreed to offset greenhouse gas emissions from the plant as part of its licensing arrangements with the Northern Territory Government18.
• The Agreement is attractive to the private sector as it enables industry to address permit requirements in a manner designed to achieve economic, social and environmental outcomes. While this project has aspects that are somewhat specific to the northern savanna region, the premise of creating an offset project through partnering with Indigenous land owners or managers clearly has application elsewhere in Australia.
• Indigenous peoples in Australia have long performed activities, which generate commodity and non-commodity services (for all Australians) from the natural environment.19 Many environmental services performed by Indigenous peoples are not ‘new’ to Federal, State and Territory governments. Government departments and agencies have been involved in joint and cooperative management arrangements with Indigenous peoples for some time. However, the current threats of climate change and associated ‘low carbon’ context creates the need to more appropriately value these services and provide adequate financial and regulatory infrastructure to enable access to, and growth of, new opportunities.
• ‘Patch’ burning of the Martu people in the northwestern section of the Western Desert is another example of a broader public benefit arising from traditional practices. The Martu people hold native title over their determination area in Western Australia. (see map).
• In this example, discussed in recent work of the Desert Knowledge CRC and others20, women undertake most of the burning activity, which reveals tracks and dens of small burrowing animals (lizards, pythons, feral cats) and immediately improves hunting efficiency.21The patches of burnt areas resulting from the women’s use of fire has the collateral benefit of mitigating wild fires in the summer months and in sustaining the biodiversity of this area of the Western Desert.22 The minimization of more intense wild fires preserves trees and shrubs and increases the capacity of the ecosystem to maintain carbon sequestration.23
• A common issue identified in relation to both the WALFAP and Martu examples is the vulnerability of these projects to changes in policy and support structures.24 This reiterates the need for binding and meaningful rights surrounding engagement processes. Land rights (and water rights) are reoccurring and key issues underpinning meaningful engagement and participation in development opportunities for Indigenous peoples. In Australia, these founding blocks remain wobbly, despite suggestions of Justice Woodward in 1974, some 34 years ago (in what is known as the Woodward report) that the provision of land rights was one way to facilitate economic development in Indigenous communities.25
• In Australia, at present, it may be possible to use communal freehold rights under various forms of land rights legislation, freehold land grants as part of native title settlement packages26 and/or Indigenous Land Corporation properties for environmental market opportunities. More certain legal tenure generally provides greater scope to use land for economic development. However, the restrictive treatment of most forms of Aboriginal or Torres Strait Islander rights and interests in land (and water) can limit the involvement of Indigenous communities.
• Scope also exists for other opportunities through collaborative projects relating to climate change and environmental management, which support shared understandings about country (for example the existing caring for country programs and the Indigenous weather knowledge project).27
• However, intellectual property is an important issue in collaborative projects. Inadequate legal protection for the unique nature of Indigenous traditional knowledge means that agreements and contracts will need to provide appropriate and adequate protections.
• Greater acknowledgement and support is needed for Indigenous people to grow development opportunities associated with climate mitigation activities – which also serve the public interest. At present, traditional knowledge and the ecological services performed by Indigenous peoples are informal, undervalued and/or under-supported.

Emissions Trading and associated regulation

There are three salient issues concerning the interaction between a new emissions trading scheme / CPRS and Indigenous peoples in Australia:

1. Indigenous peoples have unique cultural interests, economic development aspirations and legal rights and interests that should be respected, preserved and promoted where they intersect with the CPRS;
2. Indigenous peoples possess many tangible and intangible assets that may be realised through meaningful and respectful partnerships and investment; and
3. As significant landholders, especially in northern Australia, the contribution of Indigenous peoples to mitigation efforts need to be recognised as a major component of the national mitigation response.

• The opportunity for projects similar to the WALFAP has been created by a growing consideration of greenhouse gas emissions in the context of development and environmental approvals.
• However, the growth and application of projects like WALFAP outside the northern savanna region may be limited under the proposed CPRS. The broad coverage of the CPRS creates limited scope for activities to create offset credits. The recent Green Paper suggests offsets will only be considered in uncovered sectors and identifies that particular sources of emissions are unlikely to ever be included in the scheme – such as emissions from uncontrolled burning of savanna grasslands in Northern Australia. The specific exclusion of savanna emissions may be a positive development for certain Indigenous offset projects in northern Australia.
• It is promising that the Government has identified the need to consult with Indigenous land managers about this issue in the Green Paper. However, this consultation will need to be extensive if it is to capture the full spectrum of important ways traditional land management practices and traditional knowledge can contribute to viable offset/mitigation projects (nationally).
• It will be interesting to see how these consultations and linkage proposals develop in the months to come.
• Another key access issues (in the context of market opportunities) is financial assistance or incentives for investment in Indigenous owned, managed or partnered projects. Carbon projects take time, and require financial and human resources.28 Assistance beyond Commonwealth’s current proposal of $10 million is likely to be needed.29
• It is imperative (and consistent with a human rights based approach) to ensure Indigenous interests are not marginalised in the face of emerging policy, law and technology.
• Innovations and changes create demands for more efficient processing, new ‘low carbon’ technology, renewable energy and investment in carbon sequestration. New laws, regulation and policy create certain opportunities yet also bring complexity to dealings and engagement with Indigenous peoples, particularly in relation to land and natural resource use and development.
• For example, in preparing for sequestration developments, Australia’s States and Territories have legislated to provide a basis for the legal recognition of carbon rights in trees. The nature of these carbon rights varies across jurisdictions. There is inconsistency in relation to the land on which these carbon rights may be created (private or public/crown land) and whether these carbon rights create an interest in land.30  The interaction between carbon rights in trees and other legal interests, including native title, is complex.31
• In Australia, native title and other systems for Indigenous land return, cultural heritage, environmental and property laws, along with human rights instruments,32 provide mechanisms for possible protection and advancement of Indigenous interests in these new environmental markets. However, many of these laws and interests are vulnerable and do not create a well protected space for Indigenous participation in climate change adaptation and mitigation strategies.
• New climate change related laws, regulations and markets may further decrease or limit Indigenous peoples’ rights and interests through extinguishment or suspension of native title and by restricting rights in relation to access and use of land, natural and biological resources. Free and prior informed consent is clearly an important requirement in these circumstances, where the grant of other interests in land, trees or water may restrict use and enjoyment of the area (or resource) for the duration of a third party interest.
• It is imperative that new regulations preserve the existing rights and interests of Indigenous peoples in Australia and use the space created by these rights and interests to grow future opportunities.

Climate effects and climate litigation

• As outlined above, it is possible for Indigenous people to formally and substantially engage in climate change related market opportunities. It is also possible for Indigenous groups to participate climate related litigation.
• Inextricably linked to environmental damage is damage to Indigenous peoples’ cultural heritage and identity. The devastation of sacred sites, burial places and hunting and gathering spaces, not to mention a changing and eroding landscape, cause great distress to Indigenous peoples.
• There are strong indications that communities in the Torres Strait are already affected by rising sea level and other impacts of climate change.33 These impacts not only threaten human health and the habitability of areas but also the viability of local enterprise such as fishing, which are heavily influenced by seasonal or environmental variation.
• Climate change litigation is not purely an environmental legal issue. The nexus between environmental law and human rights law is established at an international level.
• In December 2005 the Arctic Inuit people petitioned the American Government at the Inter-American Human Rights Commission to establish mandatory limits on GHG emissions and help Artic Inuit people adapt to the unavoidable impacts of climate change. The key argument advanced in the petition was that the impacts in the Arctic of human-induced climate change infringe upon the environmental, subsistence, and other human rights of the Inuit people.
• In February 2008 the Alaskan native village of Kivalina filed a lawsuit against a number of oil, coal and power companies for their contribution to global warming and the impacts on homes and country disappearing into the Chukchi Sea.34 The village is facing relocation due to sea erosion and deteriorating coast. The Kivalina seek monetary damages for the defendants’ past and ongoing contributions to global warming, public nuisance and damages caused by certain defendants’ acts in conspiring to suppress the awareness of the link between their emissions and global warming.35
• Legal action taken by Communities in Nigeria against Shell and other oil companies in relation to gas flaring was also successful on environmental and human rights grounds.36
• In this context, the adoption of the Declaration on the Rights of Indigenous Peoples by the United Nations General Assembly in September 2007 is a further step toward the promotion and protection of fundamental human and cultural rights of Indigenous peoples.37
• In Australia, to date, climate related legal action has focused on administrative action in planning and environment decisions, with varying degrees of success. These proceedings are part of a growing body of climate change jurisprudence. It is worth noting discussion and debate in academic circles about the scope for negligence/nuisance actions in Australia, as has been seen in the US.

Summary and conclusions

• Climate change and increased environmental awareness present an important opportunity to support Indigenous peoples exercise a right to development in accordance with their needs, interests and aspirations.
• It is in everyone’s interests for Indigenous people, as important knowledge holders and land managers, not to be not be excluded from collaborative engagement and partnerships with the public and private sector in responses to climate change.38
• In my view, progress toward a carbon-constrained future should involve collaboration and opportunity over litigation. However the pathway will no doubt be shaped by the action or inaction of government and the private sector.
• The Australian Government, despite having not yet adopted the Declaration on the Rights of Indigenous Peoples, should endeavor to follow the principles, responsibilities and obligations set out in the Declaration. It would appear to be a departure from best practice for governments not to consult and cooperate in good faith with Indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.39

To borrow a phrase used by my former clients, traditional owners from northwest Victoria – which was often used in negotiations with the State ‘its time to put some flesh on the bones’ of these agreements and principles.

Thank you.