Corporate Responsibility - Developing principles on Resource Development on Indigenous land: A Human Rights based approach

Development
and Indigenous Land: A Human Rights Approach

These Principles
were developed by a forum of Indigenous people from Australia's major
mineral resource regions, held in Alice Springs in May 2002. Participants
had a depth of experience and expertise in areas across the country,
but the process did not make any claim to represent a national Indigenous
view. The forum was co-hosted by the Aboriginal and Torres Strait Islander
Social Justice Commissioner (Dr Bill Jonas) and Professor Ciaran O'Faircheallaigh
on behalf of Griffith University and facilitated by Indigenous lawyer,
Robynne Quiggin. The aim of the forum was to initiate a process by which
Indigenous people may develop principles, based on human rights, addressing
resource development on Indigenous land.

The Principles
are informed by the forum participants' experience of the impact of
mining on their communities. The process was not intended to produce
rules to be applied uniformly by all Indigenous communities. Rather
the Principles, based on the human rights of equality, protection of
culture, and self-determination, provide a foundation on which Indigenous
people may build their own positions regarding the relationship between
their communities and Developers. The participants welcome the extension
and adaptation of these Principles to other forms of development and
impact on Country.

The Principles
address issues such as recognition and respect, Indigenous involvement
in environmental management, cultural heritage protection, and the need
for developers to respect the integrity of Indigenous decision making
processes. A central requirement is that developers obtain the prior
informed consent of Indigenous communities affected by any development
proposal. The issues covered in these Principles are particularly important
where the legal and policy frameworks for resource development on Indigenous
land are inconsistent with Indigenous people's human rights. Adherence
to the Principles will assist in ensuring equity between Indigenous
and resource development parties.

PREAMBLE

The
principles in this document concern the relationship between traditional
owners and custodians, on the one hand, and Developers on the other,
and are based on the human rights of self determination and development,
equality and non-discrimination, and protection & maintenance of
culture. The relevant parts of international treaties which enshrine
these rights and to which Australia is a signatory are scheduled to
this document.

Human rights have
been expressed in the Universal Declaration of Human Rights (UDHR),
which represent a manifesto for ethical behaviour between peoples, governments
and private economic interests. The principles outlined below are specific
standards, based upon the UDHR and other sources of human rights principles,
for ethical conduct between Developers and Indigenous communities.

The core values
that underpin the principles in this document are the values of recognition
and respect. Particular aspects of recognition and respect are stated
in the first two headings of this document as principles in their own
right, but they are also reflected in all of the other principles in
this document.

All Developers
should recognise that colonisation continues to impact upon the social,
economic and environmental conditions and lifestyles of Indigenous peoples
throughout Australia. However, Developers should also recognise that
traditional owners and custodians throughout Australia retain connection
to Country and also recognise the economic importance of their traditional
lands to produce sustainable outcomes for future generations.

Developers must
respect the rights of traditional landowners to negotiate agreements
over proposed and existing Developments on Country. Developers must
respect the right of traditional owners and custodians to veto Development
proposals.

Developers must
fully disclose their profile and projects both nationally and internationally
as single entities and joint venturers.

Developers must
comply with international standards on labour, human rights, sustainable
development and the environment for the express purpose of ensuring
that traditional owners and custodians are able to practice their traditional
laws and customs and exercise the full range of connection to Country.

In the application
of the following principles, the differential impact of Development
on traditional owners and custodians including elders, men, women, and
children must be recognized and addressed.

Developers and
traditional owners and custodians will respect the confidentiality of
the other party. Developers must respect the confidentiality of traditional
owners and custodians particularly in the receipt and use of Indigenous
information, and throughout any negotiations and dealings with traditional
owners and custodians.

The principles
in this document apply to all Developments, regardless of when they
were initiated.

The principles
in this document may also be relevant to other forms of resource development.

Definitions

The word 'Development(s)'
in this document means any exploration for or extraction of minerals
(including oil, petroleum and gas) and all associated activities, such
as construction of infrastructure, undertaken on Country.

The word 'Developer(s)'
in this document means any party or organisation that seeks to undertake
Development on the Country of traditional owners and custodians.

The word 'Country'
in this document includes land, water, sea, and sky.

Recognition

The Developer must
recognise:

• traditional owners' and custodians' cultural practices, traditional
  and ongoing spiritual and religious connection to Country;
• traditional owners and custodians as owners of Country, regardless
  of Western law;
• traditional owners' and custodians' values in relation to their
  culture;
• the cultural responsibilities of traditional owners and custodians
  in employment conditions;
• the impairment and disruption of enjoyment, use and access to Country
  due to impact of Development, and provide appropriate compensation
  in all cases of such impairment;
• the right of traditional owners and custodians to work with consultants
  of their choice;
• that traditional owners and custodians are responsible for Indigenous
  heritage on Country and are owners of their cultural and intellectual
  property;
• the right of traditional owners and custodians to enjoy economic
  benefit arising from Development on Country;
• that traditional owners and custodians are the ultimate decision
  makers on Country and therefore must be involved in all decisions
  made; and
• the cultural diversity of Indigenous people throughout Australia.

Respect

The Developer must
respect:

• traditional owners' and custodians' decisions, decision-making,
  and dispute resolution processes;
• traditional owners' and custodians' time frames to ensure inclusiveness
  for decisions that are subject to cultural ceremonies and law, climatic
  and geographical conditions;
• the collective and communal nature of Indigenous rights;
• the status of traditional owners and custodians - the Developer
  must provide its representatives with the authority to negotiate and
  make decisions;
• the traditional owners and custodians by providing notice of future
  projects as early as possible in the life of that project, and well
  in advance of any relevant statutory periods;
• all relevant persons and groups in a community (including traditional
  elders, custodians of sites, traditional owners and custodians of
  stories/songs, men's and women's businesses) in traditional decision
  making about Indigenous heritage and what happens on Country; and
• the information and knowledge of traditional owners and custodians,
  and the Developer must apply mutually agreed principles in protecting
  that information and knowledge.

Prior Informed Consent

Traditional owners
and custodians have a right to make informed decisions, which may include
decisions that Development will not proceed. The Developer must:

• ensure that traditional owners and custodians have all information
  in relation to proposed projects in a timely and comprehensive manner
  and in an understandable form;
• fully disclose to traditional owners and custodians, information
  on the Developer's projects, practices and policies (including Indigenous
  policies); and
• provide resources and funding for traditional owners and custodians
  to undertake impact assessment as an integral part of project approval
  processes and of project operations.

Internal Decision Making
Processes

The Developer must

• respect traditional owners' and custodians' decisions and decision
  making processes in relation to representation; and
• refrain from participating in traditional owners' and custodians'
  decision making structures, unless by traditional owners' and custodians'
  invitation and without inducement.

Economic Development and
Benefits

Traditional owners
and custodians have the right to guaranteed effective participation
in all economic development and benefits, which are sustainable and
durable benefits, including:

• permanent and meaningful employment;
• training, education, and capacity building;
• business opportunities;
• royalties;
• equity in the operation; and
• generation of spin-off (secondary) economic opportunities;

with the Developer
and any of its contractors or joint venturers.

Independent Monitoring
and Performance Benchmarks

The Developer must:

• negotiate outcome-focused benchmarks with full participation of
  traditional owners and custodians;
• agree to independent monitoring of performance based on the agreed
  benchmarks;
• ensure timely reviews of agreements and other relevant development
  activities; and
• negotiate, with the full participation of traditional owners and
  custodians, a code of conduct to apply to all employees and contractors,
  and covering areas such as cross cultural relations, responsible use
  of alcohol, and fraternising with local people - the code must be
  supplemented by staff training including localised delivery of cross-cultural
  training.

Indigenous Involvement in
Environmental Management

The Developer must:

• comply with environmental laws and industry codes of practice;
• ensure that traditional owners and custodians are able to practice
  their traditional laws and customs and exercise the full range of
  connection to Country
• integrate Indigenous knowledge and land management practices into
  rehabilitation plans and works;
• provide financial guarantees including, secured funds to manage
  closure issues, in the immediate and long term; and
• set environmental management standards with the full participation
  and agreement of traditional owners and custodians.

Cultural Heritage Protection

The Developer must:

• establish appropriate cultural heritage protection to the standards
  required by traditional owners and custodians;
• provide resources and funding on a basis agreed with traditional
  owners and custodian to undertake heritage assessments and develop
  management plans on the basis of the agreed standards; and
• provide resources and funding for cultural awareness training by
  traditional owners and custodians at all levels of the Developer's
  organisation.

Resourcing

The Developer must
provide resources and funding to:

• allow fair and equitable negotiations; and
• ensure effective implementation of all stages of agreements with
  traditional owners and custodians.

Schedule of Relevant Human
Rights Principles

The right to self-determination
is enshrined in Article 1 of both the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR). Article 1 provides:

1. 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.

2. All peoples
may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit,
and international law. In no case may a people be deprived of its
own means of subsistence.

3. The States
Parties to the present Covenant, including those having responsibility
for the administration of Non-Self-Governing and Trust Territories,
shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of
the Charter of the United Nations.

The right to development
is enshrined in articles 1 of the Declaration on the Right to Development
which provides:

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.

The right to racial
equality and non-discrimination is enshrined in the International
Convention on the Elimination of All Forms of Racial Discrimination
(ICERD). Article 5 of ICERD provides:

In compliance
with the fundamental obligations laid down in article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination
in all its forms and to guarantee the right of everyone, without distinction
as to race, colour, or national or ethnic origin, to equality before
the law, notably in the enjoyment of the following rights:

(a) The right
to equal treatment before the tribunals and all other organs administering
justice;

(b) The right
to security of person and protection by the State against violence
or bodily harm, whether inflicted by government officials or by
any individual group or institution;

(c) Political
rights, in particular the right to participate in elections-to vote
and to stand for election-on the basis of universal and equal suffrage,
to take part in the Government as well as in the conduct of public
affairs at any level and to have equal access to public service;

(d) Other civil
rights, in particular:

(i) The right
to freedom of movement and residence within the border of the
State;

(ii) The right to leave any country, including one's own, and
to return to one's country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association
with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;


(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;

(e) Economic,
social and cultural rights, in particular:

(i) The rights
to work, to free choice of employment, to just and favourable
conditions of work, to protection against unemployment, to equal
pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security
and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(f) The right
of access to any place or service intended for use by the general
public, such as transport, hotels, restaurants, cafes, theatres
and parks.

The Committee on
the Elimination of Racial Discrimination has issued general recommendation
23 on how the Convention should apply to Indigenous people. This provides
(among other things):

3. The Committee
is conscious of the fact that in many regions of the world indigenous
peoples have been, and are still being, discriminated against and
deprived of their human rights and fundamental freedoms and in particular
that they have lost their land and resources to colonists, commercial
companies and State enterprises. Consequently, the preservation of
their culture and their historical identity has been and still is
jeopardized.

4. The Committee
calls in particular upon States parties 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 origin or 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 practise
and revitalize their cultural traditions and customs and to preserve
and to practise their languages.

5. The Committee
especially calls upon States parties to recognize and protect the
rights of indigenous peoples to own, develop, control and use their
communal lands, territories and resources and, where they have been
deprived of their lands and territories traditionally owned or otherwise
inhabited or used without their free and informed consent, to take
steps to return those lands and territories. Only when 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.

The right to protection
and maintenance of culture is contained in Article 27 of ICCPR which
provides:

In those States
in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community
with the other members of their group, to enjoy their own culture,
to profess and practise their own religion, or to use their own language.

The Human Rights
Committee's General Comment 23 on Article 27 of ICCPR states (among
other things):

The enjoyment
of the rights to which article 27 relates does not prejudice the sovereignty
and territorial integrity of a State party. At the same time, one
or other aspect of the rights of individuals protected under that
article - for example, to enjoy a particular culture - may consist
in a way of life which is closely associated with territory and use
of its resources. This may particularly be true of members of indigenous
communities constituting a minority.

The right to freedom
of religion is enshrined in article 18(1) of the ICCPR, which states:

Everyone shall
have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief
of his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.