Climate Change and Indigenous Peoples

Climate Change and Indigenous Peoples

Speech by Warwick Baird, Director, Native Title Unit, HREOC

Native Title Conference 2008

4 June 2008, Perth

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Good afternoon. I’m Warwick Baird, Director of the Native Title Unit at
the Human Rights and Equal Opportunity Commission. What a great conference it
has been so far. Thanks AIATSIS for a wonderful job, Lisa Strelein and all your
colleagues thank you for all your hard work.

Tom Calma, the Aboriginal and Torres Strait Islander Social Justice
Commissioner, apologises for not being here this afternoon and has asked that I
present instead.

I’d like to start this afternoon’s session by acknowledging the
Traditional Owners of this land, the Noongar and paying them respects for their
commitment to realising and protecting their native title rights and their human
rights. Thanks Noongar for a very warm welcome.

It is a commitment that reminds me of the Kamilaroi people of northern NSW.
Some years ago, as a lawyer, I assisted them to gain protection of Boobera
Lagoon, a resting place of the Rainbow Serpent. The site, sacred to the
Kamilaroi, was being desecrated by speedboats.

I remember sitting on the banks of the lagoon one still afternoon, listening
to a couple of elders talk about the lagoon and what it meant to them.

One of them mentioned that a particular bird that turned up just before the
rains hadn't been seen much anymore - an indication that the climate was
changing.

I watched their faces as they talked about their country and the impact of
the speed boats. In them I saw the deep tearing that was taking place inside of
their very essence every time the resting place, the sacred waters of the
lagoon, were desecrated by the boats.

It had a profound effect on me.

These elders opened my eyes just a little to the deep connections, the deep
engagement that Indigenous people have with this land.

Years later I was researching the United Nations Framework Convention on
Climate Change and the Kyoto Protocol, and these images were still with me. I
was looking at the so-called market mechanisms in the Protocol one of which is
emissions trading.

A couple of things struck me at that time, and this is back around 2000
before the Protocol had come into effect, and of course well before Australia
ratified it.

One was that climate change was impacting and was going to impact even more
on indigenous^[1] peoples globally in a
unique way, because of this deep engagement they have with the land.

The other, was that the talk about climate change had gone from the science
of it, to the economics.

How much is it going to cost to adapt, how much to mitigate the consequences?
Where could money be made, how could emissions be turned into a commodity that
could be traded? These types of questions.

These questions have dominated the discussion even more so in the last year
or so.

What wasn’t being talked about, until very recently, was the impact of
climate change on human rights and the place of human rights in a changing world
as the climate changed.

By human rights I mean those core set of rights proclaimed under
international law, particularly in the International Covenant on Civil and
Political Rights, and the Covenant on Economic, Social and Cultural Rights -
rights such as the Right to Development and Free, Prior & Informed
Consent.

And especially those rights set out in the Declaration on the Rights of
Indigenous Peoples.

This brings me to the topic of my talk today.

Human rights and Indigenous engagement with climate change policy.

I'm not going to go into the details of native title law and the nexus with
rights in carbon and water and biodiversity. Though an understanding of this
nexus is absolutely crucial, and I suspect largely unexplored.

What I am going to do is talk more generally about the present and the
future, following the theme of the conference, and the need to engage Indigenous
people with the whole climate change discussion. An engagement that sees human
rights protected as well as opportunities realised.

Things are moving fast in the world of climate change policy and the urgency
is only going to get greater. Yet Indigenous peoples, despite their deep
engagement with the land and waters, it seems to me, have little engagement with
the formulation of climate change policy ­ little engagement in
climate change negotiations ­ and little engagement in developing
and applying mitigation and adaptation strategies. They have not been included.
Human rights have not been at the forefront.

Where they are engaged it tends to be in a piecemeal fashion.

The key theme of my talk is therefore engagement and the inclusion of
Indigenous people.

And the key message is that in a time of rapidly evolving climate
change policy Indigenous people must engage and be engaged with, as the policy
is being formulated and the mitigation and adaptation strategies worked out if
their human rights are to be protected.

Not after the policies are developed. But NOW at the formative stage.

Government must engage Indigenous people. And Indigenous people must pressure
governments to engage with them.

However waiting for government may leave Indigenous people out in the cold,
so to speak. I think it is going to be up to Indigenous people.

There are three general areas I want to talk about to expand on this
key message of engaging and including Indigenous people in climate change policy
and strategies ­ the international, the national, and on the
ground.

I’m not going to go into the facts and figures of the impact of climate
change, the economics and science of it all.

I’m accepting that climate change is real. That it is having a major
impact now. That the impact is going to get bigger. Especially for indigenous
peoples, here in Australia and around the world.

What I am going to do is look at three reasons, coming out of three areas, as
to why I think it is so crucial that Indigenous people are engaged, and engage
in, the development of climate change policies and mitigation and adaptation
strategies.

The first reason is because of what is going on internationally ­ in particular recent recommendations coming out of the United
Nations system. Especially out of the International Expert Group Meeting on
Indigenous Peoples and Climate Change, held in Darwin earlier this year, and the
United Nations Permanent Forum on Indigenous Issues held in New York last month.

And also because of the Declaration on the Rights of Indigenous Peoples which
is likely to increasingly play a central role in international law.

The second reason for engagement is because of policy
developments here in Australia. The one I'll focus on is emissions trading.

The third and final reason is because of pressure from climate
change on the 20% of land in Australia under Indigenous control. Pressure that
is only going to increase.

Taking the FIRST REASON for engagement.

If we look at what is
going on internationally we find there is an increased awareness of the
vulnerability of Indigenous peoples around the world to climate change and
increased calls for their full participation in climate change policy setting,
climate change negotiations, and mitigation and adaptation strategies.

Recently I attended a United Nations International Expert Group
Meeting on Indigenous People and Climate Change in Darwin.

That meeting made a number of recommendations. Which are set out in its
summary final report, which you can find on the Web. Some of these focus on this
issue of indigenous peoples engagement and inclusion.

There are four particular recommendations I'd like to draw to your
attention.

One - The Expert Group urged States with indigenous peoples to hold
workshops, and seminars with indigenous peoples and communities to discuss
climate change policies.

Two - The Expert Group recommended that States and other organisations
incorporate into education systems traditional knowledge and the impacts of
climate change on indigenous peoples.

Three - The Expert Group recommended that States provide financial and
human resources that are specifically dedicated to translate into plain language
and local languages climate change projections and climate change impact
assessments on indigenous managed and owned lands.

This recommendation was made to enable and encourage discussions between
indigenous leaders and their communities. So they can decide their own
priorities for developing climate adaptation strategies.

Four – The Expert Group recommended that States, the World Bank,
the private sector and other relevant actors in emissions trading schemes must
recognise and respect indigenous peoples’ land rights and land tenure
systems.

This last recommendation is important in Australia right now. As there is so
much hype and activity going on around the introduction of a national emissions
trading scheme. I'll return to this point later.

In this area of emissions trading the Expert Group expressed particular
concern over the possibility that the carbon market may further complicate land
tenure matters for indigenous peoples.

The United Nations Permanent Forum on Indigenous Issues picked up
these and other recommendations from the Expert Group.

The theme of this year’s Forum, the seventh, was Indigenous Peoples and
Climate Change. The Aboriginal and Torres Straight Islander Social Justice
Commissioner Tom Calma, my boss, and Katie Kiss an Indigenous colleague of mine
from north Queensland attended the Forum.

Key recommendations from the Forum also dealt with the issue of Indigenous
engagement.

An overarching recommendation was that the human rights based approach to
development should guide the design and implementation of local, national,
regional and global climate policies and projects.

There are four other recommendations from the Forum I'd like to
highlight.

One - The Forum recommended States develop mechanisms through which
they can monitor and report on the impacts of climate change on indigenous
peoples.

Two - The Forum recommended that States ensure that indigenous peoples
undertaking their own mitigation measures are provided with support: policy
support, technical assistance, funding and capacity-building.

Three – The Forum recommended that the United Nations Framework
Convention on Climate Change develop mechanisms for indigenous people’s
participation in all aspects of the international dialogue on climate change.
This was particularly with regard to the forthcoming negotiations for the next
Kyoto Protocol commitment period.

Four - The Forum recommended that the Intergovernmental Panel on
Climate Change undertake specific assessment of the opportunities and threats
for indigenous peoples arising from the various greenhouse gas emission
strategies.

Those that are currently in place and those that will potentially come into
operation to mitigate the impacts of climate change. And that this is done with
full participation of indigenous people.

The Intergovernmental Panel on Climate Change is responsible for pulling
together assessments on climate change around the world and publishes assessment
reports.

From these recommendations from the Expert Group meeting and the Permanent
Forum you can see a clear push at the international level to get States and
other actors to engage with indigenous people in the ongoing dialogues about
climate change and include them in the different processes for mitigation and
adaptation that are underway.

As I see it there are a number of themes coming out of both the Expert Group
meeting and the Permanent Forum. I've picked four:

1. Education and information in plain English
2. Involvement in scheme design and implementation
3. Impact assessment and identification of opportunities
4. Encouraging indigenous peoples participation at all levels, especially at
   the international level.
   

These themes fit in with a human rights approach to Indigenous
people and climate change. They need to be considered at a national level in
policy formulation in Australia.

Which brings me to another aspect of what is happening internationally?

The Declaration on the Rights of Indigenous Peoples.

The Forum recommended that the Declaration serve as a key and binding
framework in the formulation of plans for development. It should be considered
fundamental in all processes related to climate change at the local, national,
regional and global level.

Both the Permanent Forum and the Expert Group meeting placed the Declaration
on the Rights of Indigenous Peoples at the center of climate change policy
implementation.

The role the Declaration is going to play at the level of international law
will become more and more important. It needs to be taken into account. As Chief
Judge Joe Williams said so clearly in the Mabo Lecture at the beginning of this
conference, international reputation matters.

The Permanent Forum looked at the relationship between the Declaration and
climate change in a number of ways.

The overarching requirement is that climate change policies and projects
adhere to the standards set by the Declaration.

To assist this, the Forum appointed special rapporteurs to undertake a study
to determine whether climate change policies and projects adhere to those
standards.

An outline of the study is to be presented to the Forum at its eighth session
and the report at its ninth session.

The Forum also recommended that two special rapporteurs be appointed, in
collaboration with indigenous peoples, to prepare a draft declaration of action
on climate change and indigenous peoples.

This was to include a road map for indigenous peoples towards the 2009
Copenhagen Conference of the Parties to the United Nations Framework Convention
on Climate Change and beyond.

And this is important – the involvement of Indigenous peoples in
international negotiations for a Post Kyoto climate change regime is essential.
These negotiations are being undertaken now, post-Bali, in the lead up to
meeting of the Conference of the Parties in Copenhagen in late 2009.

Those are some of the international development I wanted to draw your
attention to.

There is pressure on States to engage with indigenous people and there is
reason for Indigenous people to engage in the climate change issues.

However I don't think it is enough to rely on the Government, on States, to
engage indigenous people.

Indigenous people are going to themselves need to engage.

Which leads me to the SECOND of the three reasons indigenous people
need to engage in climate change policy ­ the way national climate
change policy appears to me to be developing in Australia at the moment.

I only have time to touch on these briefly.

In Australia climate change policy is developing rapidly and Indigenous
people are not included or their engagement is on a piecemeal basis.

Internationally what we see is that where they haven't been involved, which
is generally the case, the result may well be detrimental impacts on indigenous
people.

Perhaps the national policy development receiving the most attention at the
moment is the introduction of a national emissions trading scheme. To assist in
this a review is currently being undertaken by Professor Ross Garnaut into
climate change. His team has released an interim report and a number of
discussion papers. They are available on the web.

On my read through of the various papers released by the Garnaut Review I
found no reference to Indigenous peoples, no factoring in the impact a national
trading scheme might have on Indigenous land tenure. No submissions from
Indigenous organisations stressing an Indigenous perspective.

His work is likely to have a big impact on the design of a national emissions
trading scheme set to be introduced by 2010 and Indigenous people don't seem to
be in the game.

The apparent lack of Indigenous input in this process is seen throughout the
development of emissions trading policy generally in Australia.

There have been a number of discussion papers and reports on emissions
trading prior to the Garnaut Review. Looking over them there doesn’t seem
to be submissions from Indigenous organisations.

And from the reporting side, there appears to be a scarcity of consideration
being given to climate change and Indigenous peoples.

Indigenous people need to be engaged and included when environmental markets,
such as emissions trading schemes, are being structured so that the impact on
Indigenous peoples of the markets and their capacity to participate in them are
taken into consideration at the design stage.

Some thoughts on Indigenous participation in environmental markets are set
out in a paper by Emily Gerrard for AITSIS. I noticed copies are outside. I
recommend grabbing a copy. It goes into some of the issues in greater depth than
I am able to here.

My key message that Indigenous people need to get engaged is not to suggest
that there is not already some involvement of Indigenous people in climate
change issues. Around Australia there are projects looking at Indigenous people
and climate change.

The CSIRO is looking at ways to use Indigenous knowledge in adapting and
monitoring climate change.

The Climate Change Research Centre, at the University of New South Wales is
doing work on the impacts of climate change on the people in the Torres
Strait.

There has been a $10 million grant to the Northern Australian Land and Sea
Management Alliance to assist research into participation in carbon markets.

The Western Arnhem Land Fire Abatement Project is being looked at as a model
to use across northern Australia. Tom Calma reported on this project in the
recently released 2007 Native Title Report.

See me after this session if you would like a copy.

And in New South Wales, the New South Wales Aboriginal Land Council is
exploring voluntary carbon markets and looking at agreements involving carbon
offsets and carbon sequestration on Aboriginal Land Council land.

And there are other projects around the country.

What is striking however is the lack of a centralised information source
about all these different activities ­ these different ways that
Indigenous people are engaging.

It seems to me that things are taking place in an information vacuum.
indigenous people need information like how the markets are designed, how they
work, what are the ramifications for land tenure and land use from
participating, what are the risks to Indigenous culture and to Indigenous
control of land and what is a good deal?

THE THIRD REASON and final reason for indigenous engagement and
involvement in climate change policy and strategy is because of the pressure
climate change will have on land under indigenous control.

As a result of native title and state and territory land regimes Indigenous
Australians have control to some degree, at a conservative estimate, of around
20% of the land-mass of Australia.

This area is under increasing pressure now and in the future as a result of
climate change.

• Pressure from the effects of changing climate ­ extreme
  weather events, less rain, water scarcity, rising sea levels, increased disease,
  loss and modification of biodiversity, and so on.
  
• Pressure from people wanting to gain access to the land and to use it
  for emissions offsets, carbon sequestration projects such as planting forest,
  carbon dumps or geo-sequestration as its known, nuclear waste dumps, wind farms,
  solar power arrays, and so on.
  
• Pressure from people migrating onto land, as might be the case in the
  Torres Strait, to higher ground from the low lying coastal areas, and people
  migrating off the land, leaving behind largely Indigenous populations such as
  appears to be happening in parts of the Murray Darling Basin as water becomes
  scarcer.
  
• Pressure to compulsorily acquire Indigenous interests in land, be
  they native title rights and interests, Aboriginal freehold or deeds of grant in
  trust.
  

There is also the fragility of native title. We saw how the future
act regime was swept aside under the Northern Territory intervention. This may
easily happen with pressure mounting on governments for access to land for
climate change mitigation and adaptation projects.

To summarise

There is a human rights element to climate change that
gets lost in all the talk about the science and the economics. And part of that
human rights element is engaging indigenous people in climate change policy, be
that dealing with mitigation or adaptation, and ensuring that their human rights
are protected.

The Declaration on the Rights of Indigenous Peoples is becoming a key
document of international law to look to regarding those rights and to guide the
development of climate change policy.

Internationally United Nation processes are seeing recommendations being made
to States to engage indigenous people. Yet national policy is being developed
without Indigenous peoples engagement. So it is going to be up to Indigenous
people to pressure government and parties to engage with them over climate
change policy.

And I think it is going to be up to Indigenous people and their organisations
to not wait for government but in all their dealings, be it Indigenous Land Use
Agreement negotiations, housing negotiations, Shared Responsibility Agreements
and in all other possible ways to ensure that climate change considerations are
central.

This is only going to become more important as pressure on Indigenous
controlled land increases.

So what's the next step?

It’s easy to say get engaged ­ but how?

And there are certain conditions required to
promote engagement and inclusion.

First, how to get engaged – five ideas:

One - Contact the SJC, myself or my staff in the native title unit at
HREOC because the Native Title Report we are currently compiling covering the
year ending 30 June 2008 is on the theme of Climate Change, Indigenous Peoples
and land, sea and waterway rights. The report goes to the Attorney-General and
is tabled in Parliament. It has an impact on government policy. It is a valuable
resource for disseminating information throughout the Indigenous community.

Two ­ Pressure Indigenous representative bodies,
including native title representative bodies and services to incorporate climate
change considerations into all native title agreements, and other agreements
involving Indigenous people.

Three ­ Pressure government, and make submissions to
inquiries and reviews looking at climate change and mitigation and adaptation
strategies. For example the Garnaut Review.

Four ­ Pressure your local government council to pay
particular attention to Indigenous people when they are formulating policy and
implementing strategies dealing with climate change.

Five – empower yourself – learn and understand what
climate change, carbon trading, carbon offsets, all the jargon means. Knowledge
is power.

Turning to how to assist engagement ­ 4 ideas:

One - There needs to be clear information in plain English, of such
things as the likely impact of climate change on local Indigenous
communities.

Two - Programs on National Indigenous Television could greatly assist
in the spread of knowledge.

Three - Perhaps the National Native Title Council could consider
making Indigenous people and climate change a central platform of its work.

Any new national Indigenous representative body could do the same thing.

Four – The Federal government could set up a dedicated unit to
look at Indigenous people and climate change, within the Department of Climate
Change, as could the States in their respective departments.

And finally I would like to leave you with this thought.

Climate change is a human rights issue. And if those two elders on the banks
of Boobera Lagoon taught me anything, it was that Indigenous people because of
their unique connection with country will be affected in a profound and special
way by climate change. And that the traditional knowledge Indigenous people have
about land and sea may well provide a valuable resource in adapting to and
dealing with climate change.

Indigenous people have a deep relationship with the land. What is needed now
is deep engagement with the rapidly evolving climate change policy.

Thank you

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^[1] The word
‘indigenous’ appears with an initial lower case where it is used to
refer in a general sense to original inhabitants of countries around the world.
The first letter is capitalised where the work is used to refer to the original
inhabitants of Australia.