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By Joe Ross and Emily Gerrard.
Global warming and the contribution of human activity to accelerated climate change are now regarded with a significant degree of scientific certainty. It is estimated that, by 2100, global temperatures may rise from 1.1 to 6.0oC; sea levels are predicted to rise by 18 to 59 centimetres.[1]
In Australia, temperatures are predicted to warm at a similar rate to global averages. Reduced rainfall and increased evaporation is projected to intensify water security problems by 2030, particularly in southern and eastern areas of Australia.[2] Rising sea levels, flooding, an increase in storm severity, changing disease patterns and consequential impacts on wildlife populations and vegetation will effect Indigenous peoples’ lifestyle, lands and culture. Some of these effects are already being observed by Indigenous peoples in Australia, particularly in the Torres Strait and coastal Australia.[3] Impacts can also be seen on those Indigenous communities who rely on the Murray-Darling river system for their cultural vitality.[4]
This article examines the ways in which climate change impacts on Indigenous Australians, with specific reference to the proposed Carbon Pollution Reduction Scheme (‘CPRS’). Greater focus on economic development in Indigenous communities, as well as free and prior informed consent, is needed in developing comprehensive measures to address climate change. There is an urgent and practical need for engagement with Indigenous peoples at a national and local level to ensure a fair, collaborative and inclusive approach to climate change solutions in Australia.
The nexus between human rights and climate change has been widely discussed at the national and international level.[5] However, the impact of climate change on human rights, particularly Indigenous peoples’ rights, have not featured in Australia’s response strategies to date. Indigenous peoples will be directly and significantly impacted by the effects of climate change; they also stand to be disproportionately affected by proposed climate change adaptation responses.
Emissions trading is a key response that carries costs and considerable limitations for Indigenous peoples. At this stage, the proposed CPRS does not adequately accommodate complex tenure rights and communal interests attaching to carbon sequestration activities.[6] Further, household living expenses are expected to rise with the introduction of emissions trading regulation.[7] However, little attention has been given to how the higher cost of energy, or the costs of regulatory compliance, may impact on Indigenous peoples and Indigenous enterprise.[8]
New incentives and legal interests emerging from Australia’s climate change responses (including the CPRS) are likely to interfere with Indigenous peoples’ use of, and interests in, country and increase pressure on the ‘Indigenous estate’ to open to ‘green’ development.[9] At the international level, Indigenous peoples have expressed similar concerns about global response measures, including emissions trading schemes.[10]
An equally pressing issue is the lack of information, engagement and resources provided to assist Indigenous peoples adequately respond to the effects of climate change.[11] In 2008, the UN Permanent Forum on Indigenous Issues identified that a key barrier to the realisation of Indigenous peoples adaptation capacities is the lack of recognition and promotion of their human rights.[12] Indigenous peoples have the right to participate in decision-making in matters that may affect them.[13] Further, recognition and respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development of the environment and its proper management.[14]
Through their existing legal interests and the unique nature of their relationship to country, Indigenous peoples have a special interest in climate change mitigation and adaptation. As key stakeholders, they should be engaged in designing policy responses. Climate change adaptation and mitigation strategies present an opportunity to bring traditional knowledge and practices and economic markets together to support a right to development in accordance with Indigenous peoples’ needs, interests and aspirations.
Indigenous involvement in the management of national parks, as well as the conservation of natural resources and biodiversity, is well established in Australia.[15] These activities draw on specialised ecological knowledge and experience of local Indigenous communities who, for thousands of years, have used and harvested country in a sustainable manner. Their environmental stewardship has sequestered significant volumes of carbon in soil, vegetation and trees. It is essential, in developing equitable responses to climate change in Australia, to give proper recognition to these past, present and future contributions by Indigenous peoples.
Emerging and innovative carbon sequestration activities, which draw from traditional knowledge and understandings about country, have the potential to grow and expand existing caring for country programs and environmental services as an integral part of Australia’s response to climate change. The West Arnhem Land Fire Abatement Project (‘WALFAP’), for instance, is utilising traditional fire management to generate carbon offsets through significant reductions in net greenhouse emissions from wild fires in the savannas.[16]
However, the Federal Government intends to limit the use of offsets under the CPRS and proposes to exclude savanna fire management from coverage under the Scheme. While the exclusion of savanna burning may present some benefits, without incentives to engage in these types of projects, it not clear whether they will continue to attract private investment following the implementation of the CPRS. Further, the exclusion of soil carbon and other forms of biosequestration from the CPRS means that emissions reductions demonstrated through these activities will remain dependent on voluntary carbon markets.
Without well-designed regulatory support, the future of innovative, environmentally and socially responsible commercial projects like the WALFAP is vulnerable to future voluntary offset markets. The outlook for such markets will be influenced by the final design of the CPRS. Given that different markets will set different prices for carbon, Indigenous peoples must have access to all relevant and up-to-date information when considering participation in carbon projects.
The recent CPRS Green Paper identified the need to further consult with Indigenous land managers in relation to savanna emission and forest sequestration projects.[17] Subsequent to the release of the Green Paper, the Australian Government Department of Climate Change also released a Discussion Paper regarding design options for CPRS reforestation projects.[18] Interested persons had a four-week window in which to review the options set out – including a question relating to the impact of proposals on Indigenous landowners – and provide their submissions. Such an approach, in the context of engagement and consultation with Indigenous landowners, is completely insufficient. One can only hope that the reforestation discussion paper formed part of a preliminary scoping exercise to inform further dialogue with Indigenous communities. The alternative perpetuates marginalisation, suffocating Indigenous peoples beneath reams of paper, allowing only a brief and inappropriately designed opportunity to participate in matters that will ultimately affect the viability of their economic development.
Collaborative research is needed to reliably estimate and understand the short and long term impacts of the CPRS and other climate change responses on Indigenous peoples. It is time for a well co-ordinated engagement strategy from Government on these matters; at a minimum, such an approach reflects well-established principles of informed consent, respect and collaboration. The ultimate design of the CPRS and other climate change mechanisms should properly incorporate outcomes of appropriate and extensive consultation with Indigenous land managers and Indigenous communities. Such measures should maximise opportunities for Indigenous peoples to fulfil their cultural and economic development objectives.
Aboriginal-owned or managed land makes up some 16% of the Australian continental land mass.[19] Much of this land is tropical savanna vegetation. In addition to extensive cattle grazing, much of this land is made up of conservation reserves, or is used for Aboriginal customary practices. However, the full realisation of economic development opportunities in these areas is constrained by a number of factors, including tenure issues, as well financial and human resource support. These limits lead to low levels of employment, educational opportunity and income in Indigenous communities. The ‘carbon economy’ may hold hope for a different future. As traditional custodians, holders and managers of significant land, Indigenous peoples have the potential to contribute to national climate change responses.
Encouraging Indigenous economic development and enhanced social wellbeing on the national Indigenous land estate should be key objective of Australia’s response to climate change. Ideally, such a development would use a knowledge-based approach to build connections between Indigenous communities and the emerging carbon economy, while maintaining cultural identity and integrity.
There are a number of opportunities for development on the national Indigenous estate. Emerging opportunities in the context of climate change present a way to link traditional knowledge, cultural rights and interests and the mainstream economy. These opportunities include:
▪ Carbon trading and offset arrangements
▪ Marine management and monitoring
▪ National Water Initiative water management reform
▪ Horticultural innovation
▪ Biosecurity
▪ Sustainable farming activities
▪ Environmental services and stewardship
▪ Knowledge-based tourism
In part, these opportunities are constrained by factors such as property rights, capital, enabling technologies and market conditions, as well as knowledge gaps in relation to non-Indigenous systems and processes.
Existing native title rights and interests, statutory land rights and other systems of land return to Indigenous communities[20] present a foundation on which to base involvement in an emerging carbon economy. However, in order to better secure Indigenous participation in these opportunities, State, Territory and Commonwealth Governments must revisit the strength of land tenure arrangements, cultural rights and native title law. Creating regulatory systems whereby the ‘landowner’ benefits from changes to land use generally disadvantages Indigenous peoples, particularly in Southern Australia where most tenure arrangements remain inadequate.
There are a number of challenges that need to be addressed to support and promote appropriate partnerships with Indigenous peoples in carbon sequestration projects. Strong knowledge platforms are needed within Indigenous communities to avoid downsides to economic development.
It is important that a vision built around possible development opportunities is ‘owned’ and driven by Indigenous peoples. Key external contributors are needed to bring in alternative perspectives and support. Further, climate-related regulatory infrastructure must be accessible to Indigenous participants financially, legally and administratively.
It is important to establish clear guiding principles regarding engagement of Indigenous communities in developing climate change and carbon trading opportunities. These principles should go beyond existing minimum legal requirements; they should instead set a best practice benchmark for investment and for the development of partnerships. Informed consent, as well as social and cultural impact assessments, are integral to such partnerships.
It is consistent with a human rights based approach that Indigenous interests are not marginalised in the face of emerging climate change policy, law and technology. Governments must consult and cooperate in good faith with Indigenous peoples and obtain informed consent, before adopting and implementing legislative or administrative measures that may affect them.[21] This is particularly important when considering the connection between Indigenous peoples’ customary responsibilities to country, involvement in environmental management and carbon abatement opportunities. Balancing these interests enables greater access to economic development opportunities for Indigenous peoples and supports partnerships to ‘bridge the gap’ between Indigenous and non-Indigenous communities in Australia.
Joe Ross is Chairperson of the Indigenous Water Policy Group (IWPG) (NAILSMA) and a member of the Bunuba people in the Kimberley region of Western Australia. Joe is Chair of the Northern Land and Water Taskforce <www.nalwt.gov.au> and has extensive work and policy experience in the areas of environmental and natural resource management. He is currently involved in coordinating the activities of the National Indigenous Climate Change Project, a national dialogue for Indigenous people on issues relating to climate change and economic development.
Emily Gerrard BSc, LLB (Hons) University of New England. Emily is a lawyer in Victoria with experience working in the native title representative body system and corporate law. The views expressed in this article do not necessarily represent those of previous or current employers.[22]
[1] IPCC, 2007: Summary for Policymakers. In: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report to the Intergovernmental Panel on Climate Change . Ed: Susan Solomon, Dahe. Qin, Martin Manning, Zhenlin Chen, Melinda Marquis, Kirsten..Averyt, Melinda Tignor and H.enry LeRoy Miller. Cambridge University Press, Cambridge, United Kingdom and New York, US. <http://www.ipcc.ch/>
[2] Intergovernmental Panel on Climate Change Working Group II, Fourth Assessment Report, Summary for Policy Makers (2007) 9.
[3] Donna Green, Garnaut Climate Change Review: Impacts on the Health of Remote Northern Australian Indigenous Communities (2008) <http://www.garnautreview.org.au/CA25734E0016A131/WebObj/03-CIndigenous/$File/03-C%20Indigenous.pdf> at 7 October 2008.
[4] The Hon John von Doussa QC ‘Human Rights and Climate Change: A Tragedy in the Making’ <http://www.hreoc.gov.au/legal/seminars/speeches/john_von_doussa08.html> at 4 October 2008.
[5] See Aboriginal and Torres Strait Islander Native Title Report (2007) <http://www.hreoc.gov.au/social_justice/nt_report/ntreport07/chapter12.html> the Hon John von Doussa QC, Renee Chartres and Allison Corkery, Human Rights and Climate Change, Background Paper (2008) <http://www.humanrights.gov.au/pdf/about/media/papers/hrandclimate_change.pdf> the Hon John von Doussa QC ‘Human Rights and Climate Change: A Tragedy in the Making’ <http://www.hreoc.gov.au/legal/seminars/speeches/john_von_doussa08.html> at 4 October 2008.
See also publications and papers by members of the UN Permanent Forum on Indigenous Issues on climate change.
[6] This issue is briefly identified in the Australian Government Carbon Pollution Reduction Scheme Green Paper, July 2008,136.
[7] Recent economic modelling by the Treasury indicates that households are expected to spend an average of $45 extra per week on electricity and $2 extra per week on gas and other household fuels, see <http://www.treasury.gov.au/lowpollutionfuture/> .
[8] In contrast to the Australian Government, the New Zealand Government has undertaken a study into the likely impacts (positive and negative) of emissions trading on the interests of Maori peoples. See <http://www.mfe.govt.nz/publications/climate/emissions-trading/12-emissions-trading-maori-oct07/index.html> at 7 October 2008.
[9] For example, reforestation, bioenergy cropping, windfarms and geothermal energy projects. The creation of legal interests in natural resources (for example, statutory property rights for carbon sequestered in trees (Carbon Rights Act 2003 (WA)) may interfere with native title and other tenure rights and create new incentives for land use and development to generate carbon ‘credits’ or renewable energy.
[10] A primary concern is the economic incentives for ‘carbon sinks,’ which often involve large-scale forest plantations, loss of traditional country and destabilisation of ecosystems. See, for example Declaration of Indigenous Peoples on Climate Change (2000) <http://www.c3.hu/~bocs/eco-a-1.htm> at 5 September 2008; Quito Declaration on Climate Change (2000) <http://www.tebtebba.org/index.php?option=com_docman & task=cat_view & gid=18 & Itemid=27 & limitstart=10> Bonn Declaration (2001), <http://www.wrm.org.uy/actors/CCC/IPBonn.html> Milan Declaration (2003) <http://www.tebtebba.org/index.php?option=com_docman & task=cat_view & gid=18 & Itemid=27> and United Nations Permanent Forum on Indigenous Issues ‘UN’s Indigenous Forum Issues Recommendations on Climate Change and other Challenges as Two-Week Meeting Concludes’ (Press Release, 2 May 2008) <http://www.un.org/esa/socdev/unpfii/documents/closing_pressrelease_PFII08.pdf> .
[11] Declaration of Indigenous Peoples on Climate Change, 2000, arts 7, 8 <http://www.austlii.edu.au/au/journals/AILR/2002/18.html> . See also: Victoria Tauli-Corpuz and Aqqaluk Lynge, Impact of Climate Change Mitigation Measures on Indigenous Peoples and on their Territories and Lands, UN Doc E/C.19/2008/10 (2008).
[12] Permanent Forum on Indigenous Issues, Conference on Indigenous Peoples and Climate Change (2008), E/C.19/2008/CRP.3 10 March 2008.
[13] Art 18, Declaration on the Rights of Indigenous Peoples.
[14] UN Declaration on the Rights of Indigenous Peoples, United Nations Convention on Biological Diversity; Environment Protection and Biodiversity Conservation Act 1999 (Cth) .
[15] See the land and sea management activities and initiatives of the North Australia Indigenous Land and Sea Management Alliance (NAILSMA) <http://www.nailsma.org.au/> , the activities supported by the Northern Land Council <http://www.nlc.org.au/html/care_menu.html> , Balkanu Cape York Development Corporation <http://www.balkanu.com.au/business/caring.html> and Kimberley Land Council <http://www.klc.org.au/landsea.htm> .
[16] The West Arnhem Land Fire Abatement scheme has reduced greenhouse gas emissions by 256,000 tonnes of CO2: Tropical Savanna CRC: Eureka Win for West Arnhem Land Fire Project (2007) <http://savanna.ntu.edu.au/news/topical_savannas109.html> at 5 October 2008.
[17] Australian Government Carbon Pollution Reduction Scheme Green Paper, July 2008, 19.
[18] Department of Climate Change Discussion Paper: Detailed Design Issues Relating to Coverage of Reforestation (2008) <http://www.climatechange.gov.au/emissionstrading/publications/pubs/forestry-paper.pdf> at 31 October 2008.
[19] David Pollack, Indigenous Land in Australia: A Quantitative Assessment of Indigenous Landholdings in 2000, (2001) <http://dspace.anu.edu.au/bitstream/1885/41132/1/2001_DP221.pdf> an estimate of 20% is provided by Scott Heckbert et al, Land Management for Emissions Offsets on Indigenous Lands (2008).
[20] Such as the Indigenous Land Corporation and land grants from State or Territory Governments.
[21] Art19, United Nations Declaration on the Rights of Indigenous Peoples.
[22] The contribution of this author builds upon previous publications, in particular: Emily Gerrard, Impacts and Opportunities of Climate Change: Indigenous Participation in Environmental Markets (2008), and Emily Gerrard ‘Climate Change and Human Rights: Issues and Opportunities for Indigenous Peoples’ (2008) 31(3) 941.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2008/35.html