Expert Mechanism on the rights of Indigenous peoples - Item 3: The right to participate in decision making (2010)

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Expert Mechanism on the rights of Indigenous peoples

12 – 16 July 2010, Geneva

Statement by the 
Aboriginal and Torres Strait Islander Social Justice Commissioner
Mick Gooda
Australian Human Rights Commission

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Item 3: The right to participate in decision making

Thank you Mister Chair

I make this statement in my capacity as the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of the Australian Human Rights Commission, Australia’s National Human Rights Commission (the Commission). I am also a Gangulu man from central Queensland, on the east coast of Australia.

I want to begin by commending the Expert Mechanism for its detailed progress report on the study on indigenous peoples and the right to participate in decision-making. The Commission agrees with the Expert Mechanism that:

indigenous participation in decision-making on the full spectrum of matters that affect their lives forms the fundamental basis for the enjoyment of the full range of human rights (Un Doc: A/HRC/EMRIP/2010/2 para 2).

Effective Indigenous participation in decision making has been confirmed as essential to ensuring non-discriminatory treatment and equality before the law, and recognises the cultural distinctiveness and diversity of Indigenous peoples. Effective Indigenous participation in decision making will also be crucial to resetting the relationship between Aboriginal and Torres Strait Islander peoples and the Australian Government.

The Commission believes that the UN Declaration on the Rights of Indigenous Peoples in affirming indigenous peoples collective rights to self-determination and decision-making powers through the principle of free, prior and informed consent, is an instrument to create the institutional structures, arrangements and process needed for indigenous peoples to be able to effectively engage in a relationship with Governments based on mutual respect. Any doubt to this is made clear in the preamble which states the General Assembly is:

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance the harmonious and cooperative relations between the State and indigenous peoples.^[1]

The Commission also agrees that participation in decision-making for indigenous peoples includes collective decision-making rights and is inherently linked to the fundamental right of self-determination.^[2]

By definition the right to self-determination is ‘an ongoing process of choice for the achievement of human security and fulfilment of human needs’^[3] and realising the right to self-determination results in ‘the freedom of indigenous peoples to live well, and to live according to our values and beliefs’.^[4]

It therefore becomes clear that in order for indigenous peoples to enjoy the right of self-determination we must be able to effectively participate in matters that affect our lives. The process of effective participation must ensure that decisions reflect the aspirations and worldviews of the indigenous peoples affected, and are made in accordance with free, prior and informed consent.

The Declaration elaborates on the process of participation with reference to the principle of free, prior and informed consent (Articles 10, 11, 19, 28, 29, 32). Free, prior, and informed consent is a universally recognised right to give - or not give - our free, prior and informed consent before certain actions affecting us can occur. Free, prior and informed consent recognises indigenous peoples’ inherent, prior and already existing rights and respects our legitimate authority to require that third parties enter into an equal and respectful relationship with us, based on the principle of informed consent’. This principle applies not only to administrative acts and decisions and the exploitation of our resources and lands, but also to the legislative process itself. States must apply the principle of free, prior, and informed consent in accordance with the following criteria:

• that there be no coercion or manipulation used to gain consent
• consent must be sought well in advance of authorisation by the State or third parties for activities to commence, or legislation to be implemented that affects the rights of Indigenous peoples
• full and legally accurate disclosure of information relating to the proposal is provided in a form that is understandable and accessible for communities and affected peoples
• communities and affected peoples have meaningful participation in all aspects of assessment, planning, implementation, monitoring and closure of a project;
• communities and affected peoples are able to secure the services of advisers, including legal counsel of their choice and have adequate time to make decisions
• consent applies to a specific set of circumstances or proposal, if there are any changes to this proposal or to the circumstances this will renew the requirement for free, prior, and informed consent
• consent includes the right to withhold consent and say no to a proposal.

In this regard, the Special Rapporteur on the situation on the rights and fundamental freedoms of indigenous peoples emphasised that the participatory aspect of the right to self-determination entails an engagement and interaction by indigenous peoples with the larger societal structures of the countries in which they live; and emphasised State’s duty to consult indigenous peoples on matters that affect them (UN Doc: A/HRC/12/34). Of critical importance the Special Rapporteur’s also observes that there is no specific formula for carrying out good faith consultations with indigenous peoples.

Despite the establishment of the new national representative body for Aboriginal and Torres Strait Islander peoples, The National Congress of Australia’s First Peoples, the exclusion of Aboriginal and Torres Strait Islander peoples in the broader societal structures of Australia, including our National Constitution, are significant barriers to effective participation in decision-making about matters that affect Aboriginal & Torres Strait Islander Peoples.

As a result of this exclusion the Australian Government continues to abrogate its international obligations to fulfil the right to participate for Aboriginal and Torres Strait Islander peoples, particularly in the context of its duty to meaningfully consult.

There is also a pressing need to ensure the intrinsic right to full participation of Aboriginal peoples and Torres Strait Islanders in policymaking processes. Policy making processes based on consultation alone do not satisfy the principles of equality, equity and effective participation required under international law. A critical step required to achieve a significant improvement in the lives of Indigenous peoples is for States to recognise, endorse and treat Indigenous people as substantive players and major stakeholders in the development, design, implementation, monitoring and evaluation of all policy and legislation that impacts on their health and wellbeing. 

To do this effectively, the current requirement to consult must be extended to reflect in a practical sense a requirement to effectively negotiate.

Governments, particularly in Australia interpret their obligation to consult with Indigenous people, as a duty to tell us what has been developed on our behalf, and what eventually will be imposed upon us. The Australian Government conducts consultations on various issues through various mechanisms such as Senate Committees, reviews of policies and practices and evaluations, but more often than not, the contributions made by Aboriginal and Torres Strait Islander stakeholders are notincluded in the final outcome.

The capacity of communities to engage in consultative processes has also been hindered by:

• inadequate resources to effectively participate in decision making processes as equals
• unreasonably short timeframes for responding to discussion papers and draft legislation that directly relate to the rights of Aboriginal peoples and Torres Strait Islanders

Consultation also occurs in an ad hoc manner and in many instances does not occur in communities most affected by the topics addressed. Nor is there a usual practice whereby the Government include Aboriginal and Torres Strait Islander peoples in pre and post consultation processes where policies or draft legislation are being finalised.

The Australian Government has also established a number of Indigenous Advisory Committees. By their very nature these Committees only provide advice about which Ministers or bureaucracies can either accept or ignore without further consultation or explanation. Compounding this is the view that these people are generally appointed on the basis of their individual subject matter expertise they cannot be construed to be representative of any community, let alone of the wider Aboriginal and Torres Strait Islander peoples. These Aboriginal and Torres Strait Islander members are also often required to sign confidentiality agreements in order to participate which seriously limits their ability to provide a report back to Aboriginal and Torres Strait Islander people on the outcomes.

Inadequate resourcing has also limited the capacity of Aboriginal and Torres Strait Islander peoples and their representative organisations to effectively participate in treaty body reporting processes.

As acknowledged by the Special Rapporteur on the situation on the rights and fundamental freedoms of indigenous peoples, the lack of appropriate consultation, negotiation, and the application of free, prior, and informed consent, has been clearly demonstrated as a clear violation of human rights standards in the Australian Governments Northern Territory Emergency Response.

An objective human rights appraisal of the Northern Territory Emergency Response (NTER) measures indicates significant concerns, even in light of the recent reinstatement of the Racial Discrimination Act 1975 (Cth).^[5] The Northern Territory Emergency Response serves as an example of the removal of indigenous people’s voices in the decision-making process. The Australian Government sanctioned independent review of the NTER found that:

The single most valuable resource the NTER has lacked from its inception is the positive, willing participation of the people it was intended to help. The most essential element in moving forward is for government to re-engage with the Aboriginal people of the Northern Territory.^[6]

Much of the failure of service delivery to Indigenous people and communities, and the lack of sustainable outcomes, is a direct result of the failure to effectively engage with Indigenous people and of the failure to invest in building the capacity of Indigenous communities to participate.  

In light of the Australian Government’s support for the Declaration on the Rights of Indigenous peoples, Governments at all levels need to change their approaches towards engaging with Aboriginal and Torres Strait Islander peoples. Government departments across all jurisdictions in Australia are not accustomed to regularly consult and negotiate with Aboriginal and Torres Strait Islander peoples.

It appears that the Australian Government does not understand what constitutes genuine consultation and effective engagement. We are certainly not at a point where bureaucrats value such engagement or understand its importance in terms of respect and improving the quality of decision making and policy formulation processes.^[7]

Further there is an absence of accountability and a clear disconnect between the rhetoric and policy platforms of the Government to measure performance against the obligations of the Australian Government to protect, promote and fulfil the rights of Aboriginal and Torres Strait Islander peoples.

Despite the growing guidance through the United Nations mechanisms on effective engagement with Indigenous peoples, a consultation and negotiation framework that clearly outlines the steps necessary, meets international standards, and ensures effective participation in decision making, is required.

RECOMMENDATION

The Commission recommends that:

1. The Expert Mechanism on the Rights of Indigenous Peoples include in its report, a consultation and negotiation framework that clearly outlines the practical steps necessary to achieve effective participation in decision making by Indigenous peoples; and urges States to adopt the framework as the international standard of engagement with Indigenous peoples.

And that the framework includes adequate resources for Indigenous Peoples and their organisations to exercise their rights to participate in decision making processes.

Thank you.

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^[1] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), preambular para 18.
^[2] My predecessors have examined the right to self-determination, its use in Australia and what self-determination looks like to indigenous peoples in the Social Justice Report 2002 (Chapter 2) and the Social Justice Report 2008 (pp 55-58).
^[3] UNESCO, ‘Conclusions and recommendations of the conference’ in M Walt van Praag (ed) The implementation of the right to self-determination as a contribution to conflict prevention (1999) p19.
^[4] E Daes 'Striving for self-determination for Indigenous peoples' in Y Kly and D Kly (eds), In pursuit of the right to self-determination (2000), p 58.
^[5] Australian Human Rights Commission, Submission to the Senate Community Affairs Committee: Inquiry into the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009 and other Bills (2010). At http://www.hreoc.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 6 July 2010).
^[6] Northern Territory Emergency Response Review Board, Report of the Northern Territory Review Board, Attorney-General’s Department, Canberra (2008), pp 10-11. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 28 April 2010).
^[7] T Calma (Aboriginal and Torres Strait Islander Social Justice Commissioner), Essentials for Social Justice: The Future (Speech delivered at the University of South Australia, Adelaide,12 November 2008). At http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20081112_future.html (viewed 1 November 2009).