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

Human Rights Based Approach
to Mining on Aboriginal Land

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

Summary

Equity and Non-Discrimination

Cultural Rights

Self-Determination

Development

Principles

Summary

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

Policies which
are consistent with human rights standards will:

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

Equality
and Non-Discrimination

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

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

First, a distinction,
exclusion restriction or preference based on race is required; and
Second, the
distinction based on race must nullify or impair the recognition and
enjoyment of human rights by a particular racial group.

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

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

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

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

a) recognize
and respect Indigenous distinct culture, history, language and way
of life as an enrichment of the State's cultural identity and to promote
its preservation;

b) ensure that members of Indigenous peoples are free and equal in
dignity and rights and free from any discrimination, in particular
that based on Indigenous identity;

c) provide Indigenous peoples with conditions allowing for a sustainable
economic and social development compatible with their cultural characteristics;

d) ensure that members of Indigenous peoples have equal rights in
respect of effective participation in public life, and that no decisions
directly relating to their rights and interests are taken without
their informed consent;

e) ensure that Indigenous communities can exercise their rights to
practice and revitalize their cultural traditions and customs, to
preserve and to practice their languages.

f) recognize and protect the rights of Indigenous peoples to own,
develop, control and use their communal lands and territories and
resources and, where they have been deprived of their informed consent,
to take step\s to return these lands and territories. Only where this
is for factual reasons not possible, the right to restitution should
be substituted by the right to just, fair and prompt compensation.
Such compensation should as far as possible take the form of lands
and territories. [1]

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

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

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

Cultural
Rights

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

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

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

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

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

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

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

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

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

Self-Determination

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

Article 1 of ICCPR
and ICESCR states:

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

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

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

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

Development

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

1. The right
to development is an inalienable human right by virtue of which every
human person and all peoples are entitled to participate in, contribute
to, and enjoy economic, social, cultural and political development,
in which all human rights and fundamental freedoms can be fully realized.

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

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

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

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

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

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

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

Principles

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

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

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

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

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

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

1. General
Recommendation 23, CERD Committee, 1997

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

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