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Sustainable
development and Indigenous Rights

Speech by
Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice
Commissioner at the International Sustainability Conference - Academic
Forum of Regional Government for Sustainable Development, 17-19 September
2003

I
would like to acknowledge the Nyoongar people, the traditional owners
and custodians of the land where we meet today.

This
paper seeks to discuss the relationship between human rights broadly and
Indigenous rights specifically within a sustainable development framework.
In doing so, I will provide an overview of human rights standards relevant
to Indigenous peoples and their implications for sustainable development
approaches. The paper will conclude with a brief discussion of the challenges
and opportunities that exist for a sustainable development approach to
Indigenous issues within Australia.

Sustainable
development is a complex and ever expanding concept incorporating social,
cultural, economic, political and environmental issues. It is not unlike
a story of explorers lost in the jungle at night, who happen upon a sleeping
elephant. One of the explorers discovers an ear and thought he had found
a winnowing basket; the other found a tusk and thought it a ploughshare;
another found a foot and thought he had discovered a pillar. To some extent
discussions about sustainable development are similar. We each have part
of the answer but only a collective understanding will disclose the extent
of sustainable development. This presentation will seek to describe the
part of sustainable development observed by the Aboriginal and Torres
Strait Islander Social Justice Commissioner as it relates to Indigenous
rights. It is hoped that this conference will provide the opportunity
for a greater collective understanding for all of us attending.

Sustainable
development is essentially a political concept. It promotes a strategy
for development that seeks to marry environmental protection with economic
and social development. Within the dialogue of sustainable development
there are two levels; the first level provides the basic tenets of sustainable
development. They include - the integration of environmental protection
with economic development, futurity, conservation of resources, equity,
quality of life and participation. The second level is more contested
and addresses how sustainable development may work in practice ^[1].

Sustainable
development however, is not just a political concept. It has evolved within
the international socio-legal context and is heavily influenced by international
socio-legal norms. These norms developed at the international level through
the United Nations and at regional levels in agreements and conventions
between nation-states in discrete geographic regions. They include international
environmental law, human rights law and international economic law. For
the purposes of this paper and as is appropriate to the role of Social
Justice Commissioner, this paper will focus on international human rights
law.

The
relationship between sustainable development and human rights has not
been an easy one. On the one hand, a traditional human rights approach
focuses on the rights of individuals and groups and does not directly
address environmental issues. For example, loss of a specific species
may not affect the human rights of any individual or groups. And inconsistencies
between human rights and environmental protection may arise, by the limitation
of a group's right to property by environmental protection standards.
^[2] However, growing environmental concerns
have led to discussions of a human right to a healthy environment. These
discussions are ongoing.

On
the other hand, human rights may be directly affected by environmental
degradation. Severe environmental pollution could pose serious threats
to fundamental human rights^[3] , including:
an inherent right to life ,^[4] freedom from
hunger, adequate housing^[5] and the right
to the highest attainable standard of physical health .^[6]
Discrimination on the basis of racial or economic status also features
in the context of environmental degradation. Research in the United States
in the early 1980s revealed that three out of four hazardous waste facilities
were located in poor minority communities .^[7]
Such discriminatory environmental practices have important implications
for key human rights standards including the International Convention
on the Elimination of All Forms of Racial Discrimination. Similar findings
have been made throughout the world and have resulted in a global environmental
justice movement.

While
there are frictions between environmental protection and human rights,
the international law system is working towards an interrelatedness and
interdependency between human rights and environmental protection .^[8]
And it seems that as the principles of sustainable development have evolved,
an inexorable link between human rights and environmental protection has
emerged.

I
would like to build my discussion of human rights and sustainable development
around the key declarations that have shaped the meaning of the concept.
These declarations are important guides within any discussion on the definition
of sustainable development as such discussions are frequently contested.
These declarations assist by providing a mechanism by which contested
meanings can be assessed.

In
1972 the Declaration of the United Nations Conference on the Human
Environment or the Stockholm Declaration presented principles for
the preservation and improvement of the human environment. Principle 1
of the Stockholm Declaration states that humanity has the 'fundamental
right to freedom, equality and adequate conditions of life' and that we
bear 'a solemn responsibility to protect the environment for present and
future generations'. ^[9]

This
principle creates a relationship between human rights and the protection
of the environment. The human rights to which Principle 1 refers are fundamental
human rights enshrined in the Universal Declaration of Human Rights, International
Convention on the Elimination of All Forms of Racial Discrimination, and
the International Convention on Civil and Political Rights. Principle
8 of the Stockholm Declaration also emphasises the importance of economic
and social development as a basis for improved quality of life. Such an
approach is supported by the International Convention on Economic, Social
and Cultural Rights.

The
emphasis of the Stockholm Declaration on human rights in the context of
environmental protection shifted slightly in 1982 with the UN General
Assembly proclamation of the World Charter for Nature. ^[10]
The Charter emphasized humanity as a part of nature and emphasised the
intrinsic value of the natural environment, independent of its value to
humanity. The proclamation acknowledged the over exploitation of the natural
environment leads to conflict and the collapse of the social, economic
and political framework of civilization. It recommended over exploitation
be prevented by appropriate measures to protect the natural environment
and promote international co-operation. ^[11]

From
1983 to 1987, the World Commission on Environment and Development was
commissioned by the UN to develop strategies aimed at balancing development
and environmental protection. This period was marked by socio-environmental
disasters; the African famines, pesticide leaks in Bhopal, India and the
Chernobyl disaster in the USSR. Of note, this period was also marked by
a retreat from social concerns, as growing scientific data on global warming,
ozone depletion and the desertification of agricultural land began to
dominate environmental discussions. ^[12]

In
1987 the Commission released its report and concluded that the ongoing
destruction of eco-systems was an implicit threat to world security that
would result in resource shortages and continued environmental degradation.
Further to this, the Commission's report stated that 'poverty is a major
cause and effect of environmental problems and, is it therefore futile
to attempt to deal with environmental problems without a broader perspective
that encompasses the factors underlying world poverty and international
inequality' .^[13]

In
response to these findings the Commission proposed a new development strategy.
This strategy was one of 'sustainable development' and described as development
which 'meets the needs of the present without compromising the ability
of future generations to meet their own needs' .^[14]
This approach was a watershed in sustainable development thinking. While
the concepts of the Report were not without precedent, the articulation
of the meaning of sustainable development within the Report continues
to be the cornerstone of sustainable development.

Significantly,
the World Commission's report is largely silent on the role of human rights
within a strategy for sustainable development. And while the Report identifies
inequality and poverty as both a cause and effect of environmental degradation,
it fails to identify a link between overcoming poverty and inequality
with the realization of rights.

In
1992 the United Nations Conference on Environment & Development was held
in Rio de Janeiro. The Rio Conference, focused on a 'sustainable development'
approach to addressing environmental degradation and development needs.
The Conference culminated in the Rio Declaration, reaffirming the Stockholm
Declaration and seeking to further develop its key principles. Principle
1 of the Rio Declaration states 'human beings are at the centre of concerns
for sustainable development. They are entitled to a healthy and productive
life in harmony with nature'.

Despite
the emphasis of principle 1, the Rio Declaration provides little recognition
for the role of human rights within a process of sustainable development.
Despite this, key human rights standards are included in the Rio Declaration
and Agenda 21, even though these standards are not referred to as rights.
They include an adequate standard of living ,^[15]
freedom from hunger, health care and education .^[16]

Ten
years after Rio in 2002, the World Summit on Sustainable Development was
held in Johannesburg. The conference began with sobering statistics:

.
today, 80 countries have lower per capita incomes than they did at the
time of the Rio conference. Threats are higher than ever to natural resources
such as forests, fish, and clean water and air. The richest one-fifth
of the population, including wealthy minorities in poor countries consume
energy and resources at a rate that providing a comparable lifestyle to
the rest of the world's population would require the resources of four
planets the size of Earth. ^[17]

Secretary
General of the United Nations, Kofi Annan also acknowledged that the results
since the Rio Conference have been disappointing - 'in some respects conditions
are worse than they were 10 years ago'. ^[18]
It was recognised that the approach to development had been piecemeal,
with ongoing threats to the environment through unsustainable consumption
and production.

The
Johannesburg Declaration reaffirmed the principles of the Rio Declaration
and Agenda 21^[19] and recognised the three
interdependent and reinforcing pillars of sustainability - economic development,
social development and environmental protection .^[20]
Yet overwhelmingly, the Johannesburg Conference emphasised the effect
of poverty and inequality on sustainable development outcomes. The Conference
recognised that among other issues, poverty eradication and economic and
social development were overarching objectives and essential requirements
for sustainable development.^[21]

Consistent
with this emphasis the Johannesburg Declaration, identified specific areas
for targeted action. They include: access to clean water, sanitation,
adequate shelter, energy, health care, food security .^[22]
These areas are not just entitlements set out in the Johannesburg Declaration
they are fundamental human rights. ^[23]

As
mentioned, the Johannesburg Declaration confirmed that sustainable development
relies on three interdependent pillars - economic development, social
development and environmental protection. However, the most recent World
Development Report acknowledges that the social pillar of sustainability
is the least well developed .^[24] The emphasis
and urgency of the Johannesburg Summit on Sustainable Development on the
eradication of poverty and of achieving human development, provides an
opportunity to address the social strand of sustainable development.

Within
this process, it is likely that human rights will begin to be a more significant
feature of the sustainable development discourse. Importantly, the Johannesburg
Declaration reaffirms commitment to the Charter of the United Nations
and international law and recognizes the vital role of the UN in promoting
sustainable development. Also an increasing role for human rights is emerging
in what is broadly referred to at the international level as a 'rights
based approach' to development. International development models emphasize
a human rights based approach to development that favours the empowerment
and involvement of communities the subject of development strategies.
A rights based approach to development also provides a mechanism by which
the power relationships that contribute to inequalities can be analysed
in relation to the distribution of rights. ^[25]

Consistent
with a broader rights based approach to development, the right to development
ensures the role of human rights within a sustainable development framework.
This right was established by the 1986 UN Declaration on the Right to
Development. And while the right to development has had a colorful and
interesting history, it is becoming an important part of the newly emerging
international sustainable development law framework. Importantly, the
right to development recognizes 'that the human person is the central
subject of the development process'. ^[26] And
significantly:

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 realized.
^[27]

The
role of human rights within the evolution of the sustainable development
discourse has been ambiguous, although recent analysis suggests that a
clearer role for human rights is emerging. Despite the ambiguity, Indigenous
rights based in the broader human rights systems have consistently been
recognised as a touchstone of sustainable development strategies. ^[28]

The
1987 World Commission's report, 'Our Common Future' examined the effects
of development on Indigenous groups. The Commission identified these groups
as specifically and profoundly at risk from development. Indigenous groups
were seen as specifically at risk from development because for the most
part it is Indigenous groups that continue to live in isolated, often
resource rich and unexploited natural environments. They are profoundly
at risk because development practices that damage or substantially alter
the natural environment, also damage or substantially alter the foundations
of Indigenous communities. The relationship of Indigenous communities
throughout the world to their natural environment is multilayered and
deeply embedded. The sustenance, socio-legal structure, religious beliefs
and place of residence of Indigenous communities is founded on the natural
environment in which these communities live.

The
1987 Report also acknowledged the important influence of Indigenous knowledge
and relationship to land on non-Indigenous perspectives of sustainable
development. Such observations led the Commission to conclude that the
traditional rights of Indigenous groups must be respected in the context
of sustainable development. ^[29] This approach
to Indigenous rights was reflected in the Rio Declaration, which states:

More
specifically, Agenda 21 states that 'Indigenous people and their communities
shall enjoy the full measure of human rights and fundamental freedoms
without hindrance or discrimination'. ^[31] Agenda
21 also promotes the effective participation of Indigenous groups within
land management practices on their traditional country and within national
policy approaches to land and resource management.

The
Johannesburg Declaration reaffirmed the vital role of Indigenous peoples
in the process of sustainable development.^[32]
The emphasis of the Johannesburg plan of implementation is the protection
and incorporation of indigenous knowledge systems that may contribute
to sustainable development processes in land and resource management and
development approaches. While this recognition of Indigenous knowledge
systems is positive, I would caution against the wrongful appropriation
and exploitation of indigenous knowledge systems. Critically, any use
of indigenous knowledge systems must not proceed without the prior informed
consent of Indigenous communities and without benefit to communities by
the use made of their knowledge.

In
conjunction with the Johannesburg Conference, the International Indigenous
Peoples Summit on Sustainable Development was held in Kimberley, South
Africa. The Kimberley Conference was an opportunity for Indigenous peoples
to consider the implications and outcomes since Rio of the sustainable
development approach. The Kimberley Conference, in its Declaration expressed
disappointment at the failure of Agenda 21 commitments to Indigenous peoples,
but reaffirmed the rights of Indigenous peoples to self determination,
self development and the protection of traditional knowledge systems.

In
addition to the sustainable development declarations, international treaty
bodies have found a direct link between Indigenous rights and development.
I will briefly summarise two of the key decisions.

In
a complaint to the UN Human Rights Committee by Bernard Ominayak and the
Lubicon Band against Canada, the Committee found that the sale of gas
and oil concessions by Canada on the traditional land of the Lubicon was
in violation of Article 27. ^[33] The Committee
reasoned that historic inequalities and the recent sale of concessions
were threatening the way of life of the Lubicon and were therefore inconsistent
with Article 27.

Article
27 of the International Covenant on Civil and Political Rights, protects
the culture of minority groups. The UN Human Rights Committee has interpreted
this article in relation to Indigenous groups and observed that:

In
a similar case, the Inter-American Commission for Human Rights heard a
complaint brought on behalf of the Yanomani peoples of Brazil^[35]
. The Yanomani claimed that the construction of a highway; the exploitation
of resources on their traditional land and; the resultant damage to their
environment and traditional way of life was in violation of the American
Declaration on the Rights and Duties of Man. The Commission found in favour
of the Yanomani, concluding that the development on their traditional
land violated their right to life, liberty and personal security; the
right of residence and movement and; the right to preservation of health
and well-being.

Direct
links can be drawn between Indigenous rights and sustainable development.
These links can be made through the declarations and through the findings
of international and regional human rights bodies. However, the declarations
and complaints discussed above only provide a general description of some
Indigenous rights. In an effort to make this picture a little more complete,
I will provide a brief overview of Indigenous rights. The purpose of the
overview is to draw out the implications for a sustainable development
approach in relation to Indigenous communities.

There
are four main categories of Indigenous rights. They include protection
of culture, equality and non-discrimination, effective participation and
self determination. These are not in any specific order.

First,
the right to protection of culture, arises from Article 27 of the International
Convention on Civil and Political Rights. The UN Human Rights Committee
found that this article was violated by the government of Canada in the
Ominayak decision, in that the actions of the government threatened the
way of life and culture of the group and were therefore in violation of
the right to protection of culture.

Second,
human rights standards of equality and non-discrimination, include a specific
obligation relevant to Indigenous communities. Equality and non-discrimination
in a general human rights context require the elimination of racial discrimination
and guarantees the right of everyone to equality before the law. In a
recent case before the Inter-American Court of Human Rights, Awas Tingi,
the Court found that the right of everyone to use and enjoy their property
extended to Indigenous communal ownership of land 'through an evolutionary
interpretation of international instruments for the protection of human
rights'. The Court continued: 'the close ties of indigenous people with
the land must be recognised and understood as the fundamental basis of
their cultures, their spiritual life, their integrity and their economic
survival. For indigenous communities, relations to the land are not merely
a matter of possession and production but a material and spiritual element
which they must fully enjoy, even to preserve their cultural legacy and
transmit it to future generations' .^[36]

International
law recognises that Indigenous groups whose characteristics and traditions
are unique are entitled to the protection of these characteristics. This
may require specific laws to recognise and protect the distinct characteristics
of Indigenous groups. The Permanent Court of International Justice has
said 'there would be no true equality between a majority and a minority
if the latter were deprived of its institutions, and were consequently
compelled to renounce. the very essence of its being as a minority.' ^[37]
In recognition of the distinctiveness and diversity of the human family,
international law addresses the need for a system of equality that recognises
and protects difference.

Third,
arising from rights under the ICCPR and ICERD is the principle of effective
participation and prior and informed consent. Effective participation
in decisions relating to the environment is an important feature of sustainable
development. In a human rights context Indigenous groups specifically
are entitled to effective participation in decisions which affect them.
However, the Committee on the Elimination of Racial Discrimination has
also stated that 'states should ensure that no decisions relating to the
rights and interests of Indigenous peoples are taken without their informed
consent' .^[38] This approach suggests a further
level of participation may apply to Indigenous communities in relation
to their rights and interests. Not only do Indigenous communities have
the right to effective participation in the broader life of the community
but that their prior informed consent is required in decisions that affect
their rights and interests. Such consent would apply to the use and development
of traditional land.

Fourth,
the right of self determination also applies to Indigenous peoples and
is a right enshrined in Article 1 of ICCPR and ICESCR. It states:

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

Much
debate and analysis has been applied to the right of self determination
and Indigenous groups. However, recent analysis by international law making
bodies^[39] and international jurists clearly identify
self determination as a right of Indigenous peoples. Broadly, self determination
can be characterized as a process based, governance structure that incorporates
and respects the distinct cultural values of Indigenous groups. Within
this, indigenous relationship to land and resources is integral to rights
of self determination and as such Indigenous governance structures apply
to the management of land and resources.

I
should also acknowledge that self determination as it applies to Indigenous
peoples is heavily contested. A number of States, including Australia
reject the application of self determination to Indigenous peoples. This
approach is based on an interpretation of self determination as it applies
to states, with concern of Indigenous secessionist movements. This concern
is inconsistent with current interpretations of the right of self determination
and in particular the application of self determination to Indigenous
peoples. The Draft Declaration on Indigenous Peoples, foresees both indigenous
self determination^[40] and the territorial integrity
of states .^[41] This approach strongly suggests
a view that Indigenous self determination can exist within democratic
states without threat to their territorial integrity.

As
discussed earlier, sustainable development has consistently recognised
the importance of indigenous communities and their rights. On this basis,
sustainable development policy approaches relevant to Indigenous communities
should include two main features. First, recognition and respect for legal
measures aimed at equal protection of Indigenous rights and interests.
Such legal measures may include legislation aimed at the recognition of
land rights, protection of cultural heritage and protection of indigenous
knowledge systems through intellectual property law. In the event that
such legislation fails to provide equal protection, a sustainable development
approach should incorporate wider measures of protection to address this
failure. It is noteworthy that international law standards are not only
relevant to nation-states. There is a growing expectation that regional
governments, administrative bodies and even corporations have a role in
achieving human rights standards.

The
second feature of a sustainable development approach relevant to Indigenous
communities should be the incorporation of self determination. Critically,
self determination is not an outcome, it is a process. This process is
aimed at handing control of the economic, social, political and cultural
development of Indigenous communities back to Indigenous people. And while
this may seem like a monumental task, it begins with respect for and incorporation
of traditional decision making processes, the effective participation
of Indigenous communities in decisions which affect them and the opportunity
to provide or withhold their informed consent for decisions which directly
affect their rights and interests.

The
aspects of sustainable development discussed in this paper - the part
of the elephant observed by the Social Justice Commissioner - provide
a compelling argument for adopting a sustainable development approach
to Indigenous issues. Clear links can be made between Indigenous rights
and interests and the principles and themes of sustainable development.
To some extent this paper has not done them justice. In addition, human
rights will become increasingly important as the social pillar of sustainability
develops.

Finally,
I might briefly discuss some of the challenges in an Australian context,
for a sustainable development approach to Indigenous issues. Most significant
is the limitations of the native title system. While it is true that without
native title there would be no national system for the recognition of
Indigenous rights and interests - a better than nothing approach is not
the way to achieve a just and sustainable community.

In
1993 the Australian parliament enacted the Native Title Act. The Act was
in response to the High Court decision in Mabo. This decision overturned
the concept of terra nullius in Australia and recognised an Indigenous
system of land ownership. The intention of the Native Title Act was 'to
ensure that Aboriginal peoples and Torres Strait Islanders receive the
full recognition and status within the Australian nation to which history,
their prior rights and interests, and their rich and diverse culture,
fully entitle them to aspire' .^[42]

In
1998 the original Native Title Act was amended amid much controversy.
Indigenous groups did not consent to the amendments which attracted substantial
criticism, domestically and at the international level .^[43]
However, the 1998 amendments remain and High Court decisions in 2002 provided
clarification for many issues within the legislation. The result has been
disappointing. The native title system imposes a strict process and standard
of recognition and allows for a very limited scope of rights. In addition,
the native title litigation process is slow, expensive and leaves many
practical issues unresolved.

In
response to the costs and limitations of the native title litigation process,
many Indigenous groups are beginning to focus on agreement making. Agreements
can be reached under the native title legislation. And while they allow
for the negotiation of better terms the extent of legally recognised rights
that can be negotiated is limited. Also analysis of agreements reveals
significant inconsistencies across Australia. Some agreements offer less
to groups than what they would get through the Courts and provide meager
compensation for the loss of rights and interests. While other agreements,
extend rights and interests, for example in site protection, and provide
for a diverse compensation base. Diverse compensation strategies may include
education, training, job creation and facilities directed toward addressing
community need.

Agreement
making within native title is particularly relevant to a sustainable development
approach. These agreements primarily engage with land related development,
involving resource companies, conservation or infrastructure agencies.
The land and environmental focus of sustainable development makes native
title agreements a valuable area of engagement for sustainable development
in Australia.

Agreement
making practices are also emerging outside the native title negotiation
process. These agreements are directed towards service delivery arrangements,
land management and community capacity building. And while an agreement
making approach is a recent trend, early indications suggest it is a positive
way to engage with Indigenous communities and develop effective, agreed
outcomes.

Sustainable
development provides an important mechanism for equitable and long term
agreement making. Critically, the outcomes of good agreements are achieved
through the willingness of parties to deliver beneficial results to communities.
This is a policy choice. Corporations, regional governments and their
agencies are able to make policy choices that deliver agreements and broader
policies that provide for the social, cultural and economic development
of communities. Such policy choices operationalise a sustainable development
approach and do so despite the shortcomings of legislation.

Thank
you.