Indigenous Cultural Heritage Issues Are Not Separable from Environmental Law - Coursework Example

INTRODUCTION The Aboriginal lands of Australia as evidenced by archaeological sites is believed to exist 60,000 years ago and indigenous Australia then exhibits their own art, music, and culture which is considered as the oldest living cultures in the world and how they are influenced by peoples who came to stay in Australia and those who came but did not stay. The myth of terra nullius was used as a justification by those who took possession of Australia from the aboriginal people acting as if the place is uninhabited and that they were settling in an empty land. Land is fundamental to the well being of Aboriginal people, it is not just rocks, soil, or mineral but the whole environment that sustains and is sustained by people and culture. According to a government culture portal, “for indigenous Australians, the land is the core of all spirituality and this relationship and the spirit of country is central to the issues that are important to Indigenous people today”.1 Furthermore, the same government culture portal said that, “cultural heritage is seen as the total ways of living built up by a group of human beings, which is passed from one generation to the next given to them by reason of their birth”.2 Sites which are of importance to the indigenous community are protected by law and any activities which could damage these sites must be cleared by the relevant indigenous communities. Cultural heritage however, is not just about rocks, arts, music it is the whole environment the water, the land where Aboriginal people renew their learning that serve as the link of knowing who they are and where they belong. Nature and culture is inseparable it is fixed in the heart and mind of the indigenous people. INDIGENOUS CULTURAL HERITAGE ISSUES ARE NOT SEPARABLE FROM ENVIRONMENTAL LAW The 6th session of the UN Permanent Forum on Indigenous Issues held at United Nations Headquarters in 2007 focuses on the adoption of the Declaration on the Rights of Indigenous Peoples by the UN General Assembly. The Declaration is the result of more than two decades of negotiation emphasizes that indigenous peoples’ control over their lands, territories, and resources will enable them to maintain and strengthen their institutions, cultures and traditions and to promote their development in accordance with their aspirations and needs.3 The indigenous people have a unique and integral relationship with the environment to include the lands, soil, water, resources, and biodiversity. The indigenous peoples are quite aware of the impact of development to their lands and territories. Among the economic activities that affect the environment include mineral exploration, digging and excavation, use of hybrid seeds and high farming technologies. In order to protect and preserve indigenous cultural heritage sites several countries have strengthened their legal system regarding the preservation of the lands and territories that tell the unfolding stories of the generation that was and molds what is today. The spiritual and cultural relationship of the indigenous people with their lands and water has been a custom and existing for over a thousand years, hence, such relationship is very important which must be recognized and be given due consideration in planning and managing the preservation of the environment. One of the key findings in Australia State of the Environment report supported the above contention stating that, “environmental stewardship by Indigenous Australians is of increasing importance, and governments have a lot more to do to support the capacity of the indigenous communities.”4 The report states further, “better outcome for Australia’s heritage will require a shift in the emphasis by governments on statutory responses to a better alignment between heritage and environment policies and programmes”.5 In Australia, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Government’s central piece of environmental legislation. It provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places – defined in the Act as matters of national environmental significance.6 The objectives of the said Act as enumerated under section 3 strongly provide for the basis of inseparability of indigenous cultural heritage issues and environmental law. Giving importance and to see the relationship how the indigenous people, the heritage, and the environment are closely interwoven the objectives are herein enumerated, to wit;7 (a) To provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; (b) To promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources, and; (c) To promote the conservation of biodiversity, and to provide for the protection and conservation of the heritage; and (d) To promote a co-operative approach to the protection and management of the environment involving the governments, the community, land-holders and indigenous peoples; and (e) To assist in the co-operative implementation of Australia’s international environment responsibilities; and (f) To recognize the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and (g) To promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge. Environment as defined in the EPBC Act includes not only the ecosystems, natural and physical resources but people and communities and the heritage values of places as well. Indigenous Australian’s cultural heritage and customary law are deeply embedded in the natural environment, its resources and landscapes.8 To them, nature and culture are so intimately interwoven they cannot be separated.9 The indigenous people have the responsibility inherent to them to maintain the preservation and ensure the protection of the forests, the land, and the law for the continuation of their spiritual beliefs and for future generations. Hence, it is for this reason that any damage to the environment the first and immediate people to get affected are the indigenous communities because of their close relationship and dependence to the natural environment and its resources. “The material, environmental and spiritual conditions of the indigenous peoples, together with their worldviews and intimate relationship with the land and natural resources, are particularly vulnerable to the impacts of globalization. The resulting instability, aggravated by dispossession from their land and natural resources, has disrupted the handing down of their cultural heritage from one generation to the next. Yet, indigenous peoples remain deeply committed to the protection and transmission of their culture.”10 In the 2006 Australia State of the Environment report, it acknowledges the long sequence of human occupation and interaction with the natural environment of Australia that has shaped and layered the landscape – a natural and cultural heritage that is valuable and worth conserving in its own right.11 In the said report an important improvement in the atmosphere has been observed where the size of the Antarctic ozone hole has not changed brought about by the global reduction in the use of ozone-depleting substances. However, climate change is still an issue in Australia because despite improvement in the atmosphere temperatures are rising that brought about the stressed and over-allocated water resources and the increased variability of climate has an impact in the environment. Thus, the Australian government makes a significant shift in its approach to environment management. Among tangible evidence of this shift that involves cultural heritage includes: 1. Clarification of the responsibilities of the three levels of government, improved protection of Commonwealth-owned heritage assets, establishment of a Natural Heritage list and promotion of a holistic view of heritage as part of the environment through amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).12 2. The establishment of the National Collections Council in 2001 and the establishment of significance assessment methods for collections – important response measures for conserving cultural heritage.13 Climate change is a threat to the lands, waters, and resources of the Aboriginal and Torres Strait Islander in Australia. It could greatly affect the life, languages, and cultures of these people. A genuine coordination and participation between the indigenous people and the government must be fostered to solve the rising temperature brought about by climate change which is detrimental to the lives not only of the indigenous people but the entire community as well. Such genuine partnerships must be formed for the following reasons mentioned in A Community Guide to the Native Title Report 2008:14 1) A human rights approach means that Indigenous people will be actively engaged in all levels of management and decision making that affects their livelihoods and communities; 2) Engaging and supporting indigenous peoples is essential to ensure the effectiveness of adaptation and mitigation strategies for both indigenous communities and the broader Australian community; 3) Reducing greenhouse gases and carbon abatement will rely heavily on indigenous lands and waters; 4) Indigenous traditional knowledge, land management and conservation practices will be crucial to responding to climate change, maintaining biological diversity and preserving important ecosystems. Aside from climate change, the New South Wales government in its State of the Environment report identified other environmental issues which concern also the indigenous people and the indigenous cultural heritage, and these are15: (1) water, (2) reporting pollution, (3) air, (4) noise, (5) contaminated land, (6) soil degradation, (7) chemicals and pesticides, (8) hazardous materials, (9) environment protection licenses, (10) pests and weeds, and (11) waste and resource recovery. Water, the basis of life, is fundamental for sustaining natural environments and supporting human activities including development and recreation.16 Water is of vital importance not only to the health of the community but also to the ecosystem habitats and degradation of its quality diminishes its commercial and recreational value. Specifically, water is used by the community for supplying drinking water, swimming, boating, irrigating crops and watering stock, industrial processes, navigation and shipping, production of edible fish, shellfish and crustaceans, protection of aquatic ecosystems, wildlife habitats, and scientific study and education.17 Water is the foundation of the social, cultural, spiritual, and economic life of the indigenous people. From an Aboriginal perspective, community well-being and environmental health are closely intertwined. Many cultural practices and connections relate to places with water including waterholes, rivers and wetlands, and so their protection is vital in terms of sustaining Aboriginal connections and cultural practices.18 Hence, Aboriginal values are greatly considered in water management and planning. The right of the indigenous peoples to water is protected under Article 25 of the Draft United Nations Declaration on the Rights of the Indigenous Peoples and is considered as human right to water is international human rights: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or occupied or used and to uphold their responsibilities to future generations in this regard”.19 Provided further in Article 26 of the said UN Declaration: “Indigenous peoples have the right to own, control, develop and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation and encroachment upon these rights.”20 Urban air pollution arises from emissions from motor vehicles, major industry, commercial operations and domestic activities.21 As a result several substances are in the air which is detrimental to the health of the community when not prevented or regulated. Noise pollution can also be attributed to these commercial and domestic activities. Contamination of land usually occurs in areas where there are heavy industries and intensive use of chemicals and pesticides in agricultural activities. Even in the domestic scene the use of lead for paints may contaminate the land. Contaminated land can have a major implication on the economic, legal and planning aspect for the community. Most Australians live in urban areas but many too live in rural and remote areas which are part of the environment. Human settlement in Australia takes in different forms. The increasing number of population in urban areas does not only increase the wastes but has also proportionally increased the use of resources like energy, land, and water that could greatly affect the lives of the people and the environment. In order to continually sustain the needs of the people a good and effective urban planning must be had. Australia has a very distinct biodiversity because of its isolation, size, naturally fragmented landscapes, and long-term climate variability. However, many ecological communities suffered a decline in biodiversity especially those in semi-arid areas to the level of extinction. People now value biodiversity because it is seen as part of the nation’s heritage. Loss of biodiversity is continuing to have a significant impact on the traditional practices and beliefs of the indigenous people, decline and loss of species are having an effect on Indigenous culture and heritage.22 Generally, Australia’s cultural heritage are protected, however, these environmental issues come as a threat and somehow affect the preservation of these heritage areas. The government made some measures to specifically address different environmental issues and to prevent the degradation of the environment. One of the principles of ecologically sustainable development as provided under section 3A of the Environment Protection and Biodiversity Conservation Act 1999 states that, “the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations”, this is known as the principle of inter-generational equity.23 Provided further in the same Act, “that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”.24 The prohibition on native title holders is removed as provided in section 211 subsection 2 of the Native Title Act 1993: “the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the lands and waters for the purpose of carrying on the class of activity where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests.”25 In 2003 an amendment to the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 was made that broadens the scope of environment to include the heritage values of places. These values include its natural and cultural environment having aesthetic, historic, scientific or social significance or other significance for current and future generations of Australia.26 The government’s response to conserve heritage places through legislations shows its concern and sincerity in preserving the environment and biodiversity for future generations. The Native Title Act 1993 offers little for the protection of the cultural heritage places but provides for the procedural rights of the claimant or native title holders. Stated as follows under section 24 MD (6A), “the native title holders, and any registered native title claimants in relation to the lands and waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.”27 The said Act provides other procedures available to native title holders or claimants with regards to the development on their land. Provided further in section 24 MD (6B) (c), (d), (e), (f) of the Native Title Act 1993 that the Commonwealth, the Territory or the State must notify in relation to lands and waters the registered native title claimant, registered native title body corporate, any representative Aboriginal/ Torres Strait Islander body, and the registrar. The mentioned parties registered claimant or body corporate may object within two months after the notification to the doing of the act so far as it affects their registered native title and interests. The Commonwealth, Territory or the State must ensure that the objection will be heard by an independent body.28 Despite having these laws it is not sufficient to recognize the indigenous peoples rights in relation to biodiversity knowledge and practices. It is for this reason that the Western Australian Law Reform Commission developed principles that serve as firm foundation and the basis for the protection of indigenous traditional knowledge. Among others it includes the need to:29 1) Undertake direct consultation with Indigenous peoples regarding their customary law and other requirements and to ensure compliance with these; 2) Seek free, prior and informed consent for the use of any Indigenous traditional knowledge from the custodians of that traditional knowledge, as well as for access to traditional lands and waters; 3) Ensure ethical conduct in any consultation, collection, or other processes; 4) Ensure the use of agreements on mutually agreed terms with Indigenous peoples for all parts of the process; 5) Devise equitable benefit – sharing arrangements and acknowledge the contribution of Aboriginal peoples. The government also sought the help and participation of the indigenous people in the management and preservation of land and sea. Their knowledge and classical approach coupled with the advances of technology is an effective tool in managing the environment. Thus, the rate of indigenous-owned and managed land is rising along with the recognition and appreciation of their skills. It is provided in Article 12 of the Draft United Nations Declaration on the Right of the Indigenous Peoples stating that, “Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of the cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, customs, and traditions.”30 Furthermore, Article 28 of the said Draft gives the Indigenous people the right to live in an environment that is healthy and such right must be protected by the State and international cooperation. “Indigenous peoples have the right to the conservation, restoration and protection of the total environment and the productive capacity of their land, territories, and resources, as well as to assistance for this purpose from States and through international cooperation. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.”31 The Native Title is the best evidence of the recognition given to the indigenous peoples that they have traditional territories and their right to it is inherent and universal and they cannot be alienated from it even if it is the will of the government. The indigenous peoples’ cultures, lands and waters are inseparable, and the relationship with our lands and waters preceded the introduction of all other cultures and peoples. The United Nations Permanent Forum on Indigenous Issues has stated that, “indigenous peoples have the smallest ecological footprints of the world’s communities and should not be asked to carry the ‘heavier burden of adjusting to climate change.”32 CONCLUSION In conclusion and in answer to the question: Are indigenous cultural heritage issues separable from environmental law? It is best to consider and ponder upon the following extract which is full of feelings and emotions that depicts how important the environment and the preservation of indigenous cultural heritage to the indigenous people. Extracts from Kosciuszko National Park 2004, ‘Draft Plan of Management’, A Statement from the Kosciuszko Aboriginal Working Group: “The mountains are very old and an ongoing life force that strengthens the ancestral link of our people. We have a living, spiritual connection with the mountains. We retain family stories and memories in the mountains, which makes them spiritually and culturally significant to us. Our traditional knowledge and cultural practices still exist and need to be maintained. . .”33 “Our people travelled from many directions over long distances to gather peacefully on the mountains for trade, ceremony, marriages, and social events and to settle differences. The cycle of life and many seasons influence the movement of our people through the mountains, to the sea, and to the desert. The stars, clouds, sun, and the moon guided people to and from places of importance. These travel routes continue to be used and spoken about today. . .”34 “Let us not forget the past while we look forward to the future. Past and present practices make us strong and we are committed to making this a better country for all.”35 From the perspective of the indigenous people the environment is more than just a physical site, land and people are inseparable not because the latter obtain food, shelter, clothing, tools, and medicines from the environment but because of the relationship that is beyond material things, spiritual and cultural. It cannot be denied that the traditional laws, customs, and skills used by the indigenous people in their time shaped the lands, waters, and biodiversity of the nation. However, the increasing population, the rise of several industries contributed to the degradation of the environment. Hence, it is with utmost importance that laws, regulations, and related policies regarding the preservation of the environment must be acknowledged and given due consideration. For still today, Aboriginal Australians see themselves as part of the land, and the land is part of us, inseparable connection to land continues. Read More