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Native Title Report 2008 - Appendix 4

Native Title Report 2008

Appendix 4: The international framework for engagement
of Indigenous people in climate change policy

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The following international
instruments[1] have been placed in
tables according to topic area. Note, however, that many of the instruments are
relevant to several topic areas. Clauses marked * are relevant to Indigenous
knowledge’s.

1.1 Human rights

Name
Objective
Clauses of particular relevance to Indigenous
people[2]
Relevant domestic federal legislation
Clauses of particular relevance
The Universal Declaration of Human Rights
Provides a common standard of achievement for all peoples and
nations, to the end that every individual and every organ of society shall
strive to promote respect for fundamental rights and freedoms, and to secure
their universal and effective recognition and observance.
  • All articles are relevant to Indigenous people’s rights.
  • Art 7: equality before the law
  • Art 8: right to effective remedy for violations of rights
  • Art 17: the right to own property individually and in association with
    others
  • Art 25: the right to a standard of living adequate to health and
    well-being
  • Art 27*: the right to participate in the cultural life of the
    community

International Covenant on Civil and Political Rights
Contributes to the creation of conditions whereby everyone may enjoy their
civil and political rights.
  • All articles are relevant to Indigenous people’s rights.
  • Art 1: self determination and the disposal of natural wealth and resources
    without prejudice
  • Art 6: right to life and for that right to be protected by the law
  • Art 25: to take part in the conduct of public affairs through
    representatives of choice and to have access to public service on general terms
    of equality
  • Art 27: to enjoy their own culture and use their own
    languages.

International Covenant on Economic, Social and Cultural Rights
Promotes the creation of conditions whereby everyone may enjoy his
economic, social and cultural rights, as well as his civil and political rights,
so that the ideal of free human beings enjoying freedom from fear and want may
be achieved.
  • All articles are relevant to Indigenous people’s rights.
  • Art 1: self determination and the disposal of natural wealth and resources
    without prejudice
  • Art 11: the right to a standard of living
  • Art 15*: the right to take part in cultural life, to enjoy the benefits of
    scientific progress and application, and the protection of the moral and
    material interests resulting from any scientific, literary or artistic
    production.

International Convention on the Elimination of All Forms of Racial
Discrimination
Promotes the implementation of the principles embodied in the United
Nations Declaration on the Elimination of All Forms of Racial Discrimination and
to secure the earliest adoption of practical measures to that end.
  • All articles are relevant to Indigenous people’s rights.
  • Art 1: defines ‘racial discrimination’ and provides for special
    measures
  • Art 2: State legislation and policy prohibits racial discrimination
  • Art 5: outlines the rights which must be protected from racial
    discrimination.

Convention on the Rights of the Child
Recognises and protects the rights of children, in recognition of the fact
that childhood is entitled to special care and assistance.
  • All articles are relevant to Indigenous children’s’ rights.
  • Art 6: the need to ensure the survival and development of the child
  • Art 8: to preserve a child’s identity, including nationality, name and
    family relations as recognized by law without unlawful interference.
  • Art 20: special State protection and assistance for children who may be
    temporarily or permanently deprived of his or her family environment
  • Art 27: a standard of living adequate for the child's physical, mental,
    spiritual, moral and social development
  • Art 30: to enjoy their own culture, and use their own
    languages.

Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief
Promotes understanding, tolerance and respect relating to freedom of
religion and belief, ensures that the use of religion or belief for ends
inconsistent with the Charter of the United Nations is inadmissible.
  • Art 6: to freedom of thought, conscience, religion or belief including to
    make, acquire and use articles and materials related to the rites or customs of
    a religion or belief.

Declaration of the Principles of International Cultural
Co-operation[3]
Recognises that ignorance of the ways and customs of peoples still presents
an obstacle to friendship amongst nations, peaceful co-operation and
progress.[4]
  • Art 1: to have the value and dignity of culture respected and preserved
  • Art 6: to respect the distinctive character of each culture.

Declaration on the Right to Development
Confirms that the right to development is an inalienable human right and
that equality of opportunity for development is a prerogative both of nations
and of individuals who make up nations.
  • All articles are relevant to Indigenous people’s
    development.

Convention on the Protection and Promotion of the Diversity of Cultural
Expressions[5]
Protects and promotes the diversity of cultural expressions.
  • All articles are relevant to Indigenous people’s rights.

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1.2 Indigenous specific instruments

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Declaration on the Rights of Indigenous Peoples
To proclaim a standard of achievement on the rights of Indigenous Peoples
to be pursued in a spirit of partnership and mutual respect.
  • All of the articles are relevant to the rights of Indigenous peoples.
  • Art 1-6: the full enjoyment of all human rights, non-discrimination,
    self-determination and autonomy, maintenance of Indigenous institutions, and the
    right to a nationality
  • Art 7-10: freedom from genocide, forced assimilation or destruction of
    culture, forced relocation from land, right to integrity and security of the
    person, and right to belong to an indigenous community or nation
  • Art 11–13*: rights to practice and revitalize culture and the
    transmission of histories, languages etc; and the protection of traditions,
    sites, ceremonial objects and repatriation of remains.
  • Art 18-24: rights to participation in decision-making, through
    representative bodies; rights to their own institutions to secure subsistence
    and development; special measures to be adopted to address indigenous
    disadvantage and ensure non-discriminatory enjoyment of rights; right to
    development; and access to traditional health practices and medicines.
  • Art 25-32*: rights to maintain traditional connections to land and
    territories; for ownership of such lands and protection of lands by State;
    establishment of systems to recognize indigenous lands; rights to redress and
    compensation for lands that have been taken; conservation and protection of the
    environment and their cultural heritage and traditional knowledge; and the right
    to determine and develop priorities and strategies for the development or use of
    the lands or territories and other resources.

Declaration of Indigenous Peoples on Climate Change [6]
Promotes the establishment of a United Nations working group on Indigenous
Peoples to be present at future climate change conferences, as equal partners in
negotiations. To make a statement of claim of the right of Indigenous peoples to
participate in negotiations.
  • All articles are relevant to Indigenous peoples and are concerned with the
    particular challenges of Indigenous peoples in addressing climate
    change.

Third International Forum of Indigenous Peoples and Local Communities on
Climate Change (Bonn
Declaration)[7]
Denounces the exclusion of Indigenous peoples from debates under the UNFCCC
and the Kyoto Protocol. Opposes measures to mitigate climate change that are
based on a mercantilist and utilitarian vision of the forests, seas, territories
and resources of Indigenous Peoples.
  • All articles are relevant to Indigenous peoples and are concerned with the
    particular challenges of Indigenous peoples in addressing climate
    change.

International Labour Organisation Convention No. 169 concerning Indigenous
and Tribal Peoples in Independent
Countries[8]
In light of developments in international law since 1957, as well as
developments in the situation of indigenous and tribal peoples in all regions of
the world, to set out new international standards in relation to indigenous and
tribal peoples, with a view to removing the assimilationist orientation of
earlier standards.
  • All of the articles are relevant to the rights of Indigenous peoples.
  • Art 13 -19: use, ownership and possession of traditional lands and the right
    to development, resolution of land claims, rights to use, management and
    conservation of natural resources, including to be consulted with on sub-surface
    resources and receive compensation for damages, the right to reside on
    traditional lands, and where relocation is necessary that lands or compensation
    be provided to them for future development

Indigenous Peoples’ Kyoto Water
Declaration[9]
To declare an indigenous position on the protection of water.
  • All of the articles are relevant to the rights of Indigenous peoples.
  • Para 9-14*: right to self-determination and water, including protection of
    traditional knowledge
  • Para 15*: use and protection of traditional knowledge
  • Para 16: decision-making, free-prior and informed consent
  • Para 27*-28*: inter-generational transferral of knowledge
  • Para 32*: the conservation of traditional knowledge and ecosystems in
    accordance with the CBD.

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1.3 Greenhouse

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
United Nations Framework Convention on Climate Change
Aims to achieve stabilisation of greenhouse gas concentrations in the
atmosphere at a level that would prevent dangerous anthropogenic interference
with the climate system. Such a level should be achieved within a time-frame
sufficient to allow ecosystems to adapt naturally to climate change, to ensure
that food production is not threatened and to enable economic development to
proceed in a sustainable manner.
  • While the mechanism has particular relevance to addressing climate change,
    none of articles specifically refer to the rights of Indigenous
    people.

Kyoto Protocol to the United Nations Framework Convention on Climate
Change
Aims to put in place measures in pursuit of the objective of the United
Nations Framework Convention on Climate Change.
  • While the mechanism has particular relevance to addressing climate change,
    none of articles specifically refer to the rights of Indigenous
    people.

Vienna Convention for the Protection of the Ozone Layer
Provides for the protection of human health and the environment against
adverse effects resulting from modifications of the ozone layer. To encourage
the exchange of relevant scientific, technical, socio-economic, commercial and
legal information. To cooperate in promoting the development and transfer of
technology and knowledge.
  • None of articles are of particular relevance to Indigenous
    people.
Ozone Protection and Synthetic Greenhouse Gas Management Act
Montreal Protocol on Substances that Deplete the Ozone Layer
Promotes the introduction of control measures in order to affect the
objectives of the Vienna Convention for the Protection of the Ozone Layer.
  • None of articles are of particular relevance to Indigenous
    people.
Ozone Protection and Synthetic Greenhouse Gas Management Act

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1.4 Heritage

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Convention concerning the Protection of the World Cultural and Natural
Heritage
Aims to maintain, increase, and diffuse knowledge by assuring the
conservation and protection of the world’s heritage. To safeguard and
preserve the world’s cultural and natural heritage. For the international
community as a whole to participate in the protection of the cultural and
natural heritage of outstanding universal value, by the granting of collective
assistance.
  • Art 4-6*: identification, protection, conservation, presentation,
    rehabilitation and transmission to future generations of the cultural and
    natural heritage.
Environment Protection and Biodiversity Conservation Act 1999
Various. Includes protections of World Heritage property and National
Heritage places.
Australian Heritage Council Act 2003
Sections 5 and 7.
Protection of Movable Cultural Heritage Act 1986
Sections 7 and 17.
World Heritage Properties Conservation Act 1983
Sections 8 and 11.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
All


Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Convention for the Safeguarding of Intangible Cultural Heritage
Safeguards intangible cultural heritage; to ensure respect for the
intangible cultural heritage of the communities, groups and individuals
concerned; to raise awareness at the local, national and international levels of
the importance of the intangible cultural heritage, and of ensuring mutual
appreciation thereof; and to provide for international cooperation and
assistance.
  • Art 11-15*:safeguarding intangible cultural heritage at the national level
    including:

    • oral traditions and expressions including language
    • knowledge and practices concerning nature and the universe
    • recognition, respect and enhancement of intangible cultural heritage through
      education, awareness-raising and capacity-building
    • the participation of communities, groups and individuals in the creation,
      maintenance, transmittal and management of intangible cultural
      heritage.
Environment Protection and Biodiversity Conservation Act 1999
Various. Includes protections of World Heritage property and National
Heritage places.
Australian Heritage Council Act 2003
Sections 5 and 7.
Protection of Movable Cultural Heritage Act 1986
Sections 7 and 17.
World Heritage Properties Conservation Act 1983
Sections 8 and 11.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
All

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1.5 Environment and
sustainable development

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Rio Declaration on Environment and Development
Aims to establish a new and equitable global partnership through the
creation of new levels of cooperation among States, key sectors of societies and
people. To work towards international agreements that respects the interests of
all and protects the integrity of the global environmental and developmental
system.
  • Principle 22*: recognises the vital role of Indigenous communities’
    knowledge and traditional practices in environmental management, and the
    identity, culture and interests of Indigenous peoples to enable their effective
    participation in the achievement of sustainable development.

National Environment Protection Council Act 1994


National Environment Protection Measures (Implementation) Act 1998
Agenda 21[10]
Outlines actions that governments, international organisations, industries
and the community can take to achieve sustainability. Aims to alleviate poverty,
hunger, sickness and illiteracy worldwide while halting the deterioration of
ecosystems which sustain life. Recognises the impacts of human behaviours on the
environment and on the sustainability of systems of production.
  • Chapter 18: the right to enjoy the full measure of human rights and
    fundamental freedoms without hindrance or discrimination
  • Chapter 26: provides for sustainable development strategies that recognise,
    accommodate, promote and strengthen the role of indigenous people and their
    communities, and the protection and management of natural resources recognising
    the effects that climate change will have on Indigenous peoples.
United Nations Millennium Declaration
Aims to establish a just and lasting peace all over the world in accordance
with the purposes and principles of the Charter of the United Nations. To ensure
that globalisation becomes a positive force for all the world’s
people.
  • While the mechanism has particular relevance to addressing human rights
    issues, none of articles specifically refer to the rights of Indigenous
    people

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1.6 Forests

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Non-legally Binding Authoritative Statement of Principles for a Global
Consensus on the Management, Conservation and Sustainable Development of all
Types of Forest (Forest
Principles)[11]
Contributes to the management, conservation and sustainable development of
forests and to provide for their multiple and complementary functions and
uses.
  • Preamble (c): the recognition of the traditional uses of forests
  • Art 2(d): the participation of indigenous peoples in the development,
    implementation and planning of national forest policies,
  • Art 5(a): national forest policies that recognise and support for the
    identity, culture and the rights of indigenous people, and to have an economic
    stake in forest use, and maintain cultural identity through, inter alia, those
    land tenure arrangements that promote the sustainable management of
    forests.
  • Art 8(f): national policies and/or legislation aimed at the management,
    conservation, and sustainable development of forests that include protection of
    cultural, spiritual and historical values of forests of national
    importance.
  • Art 12(d)*: indigenous capacity and local knowledge regarding the
    conservation and sustainable development of forests should be recognised,
    respected, recorded, developed and introduced in the implementation of programs,
    including access to benefits arising from the utilisation of Indigenous
    knowledge.
Environment Protection and Biodiversity Conservation Act 1999
Various. Includes protections of listed threatened species, listed
threatened ecological communities, and endangered communities.

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1.7 Wetlands

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Ramsar Convention on Wetlands of International Importance especially as
Waterfowl Habitat[12]
Aims to stem the progressive encroachment on and loss of wetlands. To
conserve wetlands and their flora and fauna through a combination of far-sighted
national policies and co-ordinated international action.
  • While the mechanism has particular relevance to addressing climate change,
    none of articles specifically refer to the rights of Indigenous
    people.
Environment Protection and Biodiversity Conservation Act 1999
Various. Includes protections of declared Ramsar wetlands.

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1.8 Biodiversity

Name
Objective
Clauses of particular relevance to Indigenous people
Relevant domestic federal legislation
Clauses of particular relevance
Convention on Biological Diversity
Promotes the conservation of biological diversity, the sustainable use of
its components and the fair and equitable sharing of the benefits arising out of
the utilization of genetic resources.
  • Art 8(j)*: respect, preserve and maintain knowledge, innovations and
    practices of indigenous and local communities relevant for the conservation and
    sustainable use of biological diversity and promote their application with the
    approval and involvement of the holders of such knowledge, innovations and
    practices, encourage the equitable sharing of the benefits arising from the
    utilization of such knowledge innovations and practices.
  • Art10(c): protect and encourage customary use of biological resources in
    accordance with traditional cultural practices that are compatible with
    conservation or sustainable use requirements.
Environment Protection and Biodiversity Conservation Act 1999
Various. Includes protections of listed threatened species, listed
threatened ecological communities, endangered communities, and listed migratory
species.

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[1] The information in this
appendix is a summary of information from various international mechanisms that
contribute to the international framework for Indigenous engagement in climate
change policy. For further information see the Office of the High Commissioner
for Human Rights website. At: http://www2.ohchr.org/english/law/index.htm#core.
For those mechanisms not available at this site, further information is
provided.

[2] Note that while the
major human rights mechanisms (UNDHR, ICCPR, ICESCR, ICERD) are considered
relevant to represent the rights of Indigenous peoples, other mechanisms which
address more specific human rights may include specific articles concerning
Indigenous Peoples rights. These are reflected throughout the
table.

[3] The Declaration of the
Principles of International Cultural Co-operation was proclaimed by the General
Conference of the United Nations Educational, Scientific and Cultural
Organization at its fourteenth session on 4 November 1966. At:
http://www.unhchr.ch/html/menu3/b/n_decl.htm.

[4] http://www.humanrights.gov.au/social_Justice/nt_report/ntreport00/append5.html.

[5] The Convention on the Protection and Promotion of the Diversity of Cultural
Expressions was adopted by the General Conference of the United Nations
Educational, Scientific and Cultural Organization, meeting in Paris from 3 to 21
October 2005 at its 33rd session. At: http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html.

[6] The Declaration of Indigenous
Peoples on Climate Change was developed at the Second International Indigenous
Forum on Climate Change, at the Hague, 15 November 2000. At: http://www.austlii.edu.au/au/journals/AILR/2002/18.html.

[7] The Bonn Declaration Third
International Forum of Indigenous Peoples and Local Communities on Climate
Change was developed at Bonn, Germany on July 14 - 15, 2001, for the second
session of the sixth Conference of Parties to the United Nations Framework
Convention on Climate Change (COP6B), and reaffirms the Alburquerque
Declaration, Quito Declaration, the Lyon Declaration of the First International
Forum of Indigenous Peoples and Local Communities on Climate Change, and the
Hague Declaration of the Second
Forum.

[8] The Indigenous and
Tribal Peoples Convention, 1989 (No.169) was adopted on 27 June 1989 by the
General Conference of the International Labour Organisation at its seventy-sixth
session. The Convention entered into force on 5 September 1991. At: http://www2.ohchr.org/english/law/indigenous.htm.

[9] Indigenous Peoples
Kyoto Water Declaration, Third World Water Forum, Kyoto, Japan, March 2003. At: http://www.indigenouswater.org/user/IPKyotoWaterDeclarationFINAL.pdf.

[10] United Nations Economic and
social development, Agenda 21. At: http://www.environment.gov.au/commitments/uncsd/publications/agenda21/index.html.

[11] United Nations General Assembly, Report of the United Nations Conference on
Environment And Development, Rio de Janeiro, 3-14 June 1992, Annex III,
Non-Legally Binding Authoritative Statement Of Principles For A Global Consensus
On The Management, Conservation and Sustainable Development of all types of
Forests. At:
http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm

[12] Convention on Wetlands of International Importance especially as Waterfowl
Habitat (Ramsar Convention). At: http://www.ramsar.org/key_conv_e.htm.