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Native Title Report 2009 - Appendix 3

Native Title Report 2009

Appendix 3: Principles for
effective consultation and

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1 Guidelines
for engaging with Indigenous communities

1.1 A
human rights-based approach to development

  • All policies and programs relating to indigenous peoples and communities
    must be based on the principles of non-discrimination and equality, which
    recognise the cultural distinctiveness and diversity of indigenous peoples.
  • Governments should consider the introduction of constitutional and or
    legislative provisions recognising indigenous rights.
  • Indigenous peoples have the right to full and effective participation in
    decisions which directly or indirectly affect their lives.
  • Such participation shall be based on the principle of free, prior and
    informed consent, which includes governments and the private sector providing
    information that is accurate, accessible, and in a language the indigenous
    peoples can understand.
  • Mechanisms should exist for parties to resolve disputes, including access to
    independent systems of arbitration and conflict resolution.

1.2 Mechanisms
for representation and engagement

  • Governments and the private sector should establish transparent and
    accountable frameworks for engagement, consultation and negotiation with
    indigenous peoples and communities.
  • Indigenous peoples and communities have the right to choose their
    representatives and the right to specify the decision-making structures through
    which they engage with other sectors of society.

1.3 Design,
negotiation, implementation, monitoring and evaluation

  • Frameworks for engagement should allow for the full and effective
    participation of indigenous peoples in the design, negotiation, implementation,
    monitoring, evaluation and assessment of outcomes.
  • Indigenous peoples and communities should be invited to participate in
    identifying and prioritising objectives, as well as in establishing targets and
    benchmarks (in the short and long term).
  • There should be accurate and appropriate reporting by governments on
    progress in addressing agreed outcomes, with adequate data collection and
  • In engaging with indigenous communities, governments and the private sector
    should adopt a long-term approach to planning and funding that focuses on
    achieving sustainable outcomes and which is responsive to the human rights, the
    changing needs and the aspirations of indigenous communities.

1.4 Capacity-building

  • There is a need for governments, the private sector, civil society and
    international organisations and aid agencies to support efforts to build the
    capacity of indigenous communities, including in the area of human rights, so
    that they may participate equally and meaningfully in the planning, design,
    negotiation, implementation, monitoring and evaluation of policies, programs and
    projects that affect them.
  • Similarly, there is a need to build the capacity of government officials,
    the private sector and other non-governmental actors, which includes increasing
    their knowledge of indigenous peoples and awareness of the human rights-based
    approach to development so that they are able to effectively engage with
    indigenous communities.
  • This should include campaigns to recruit and then support indigenous people
    into government, private and non-government sector employment, as well as
    involve the training in capacity building and cultural awareness for civil
  • There is a need for human rights education on a systemic basis and at all
    levels of society.


2 Principles
for consultation

The consultation process should be proportionate to the potential
impacts of the proposed measure.

2.1 Initial

  • Enter consultations in good faith and with a view towards establishing or
    improving long term working relationships with Aboriginal
  • Recognise the diversity of Aboriginal and Torres Strait Islander
    . Be sure not to generalise from understandings gained from one
    community by applying assumptions about these findings to another
  • Be mindful that well coordinated consultation processes are time and resource intensive.
  • Do not assume that communities are familiar with your agency or that they
    understand your mandate or business.
  • Be aware that there may be misinformation and / or a lack of
    understanding of the most basic issues related to your consultation topic.
  • Make every effort to understand, acknowledge and respond sensitively to the alienation that community members may feel from government and government

2.2 Effective

  • Involve Aboriginal and Torres Strait Islander people at the outset.
    Community leaders (for example traditional owners and traditional elders) may be
    willing to provide input into planning the consultation process. They will also
    be able to provide you with information regarding community norms and
  • Respectfully acknowledge the involvement that participants have had
    historically in addressing the issue that is being discussed.
  • Identify the best ways to promote community consultation sessions. This may involve advertisements in local newspapers, written notices on
    community notice boards or announcements on community radio.
  • Ensure that the conduct of consultations allow affected communities to
    have control over timeframes.
    It is important to respect a community’s
    right to choose the timing and location of consultations. It is also important
    to adopt a flexible approach to the consultation process. Be mindful that
    cultural events or religious priorities and family and work responsibilities may
    impact on the availability of community members.
  • Ensure that all engagement is structured to include all relevant
    Aboriginal and Torres Strait Islander stakeholders, interests and
    Where proposals will affect Indigenous land, contacting:
    traditional land owners, the Prescribed Body Corporate (PBC), local branches of
    Aboriginal Land Councils and the regional Native Title Representative Body
    (NTRB) is vital.
  • Ensure that the consultations provide for a mechanism to obtain agreement
    with communities over the process and desired outcome of any proposed measure.
    Communities are acutely aware of the issues and possible solutions relating
    to their particular circumstances and will be pivotal to the success of any
  • Have a prior understanding of and respect for local dispute resolution
    and decision-making processes.
    Where difficulties arise in relation to
    reaching agreement between various communities or groups during consultations,
    do not get involved. However, you may have to request assistance from, or
    resource, an independent person or body to facilitate resolution of the
  • Consultations must be based on mutually agreed processes and utilise local knowledge in order to achieve sustainable outcomes in Aboriginal
    and Torres Strait Islander communities. Provide people with a clear idea
    of how their input will be included in decision-making processes.
  • Consider how you will structure your sessions to answer your consultation
    questions and maximise the quality of input from participants.
  • Be clear about likely barriers to stakeholder participation. You
    should also consider how you will interact with target groups including young
    people, older people, people with disabilities, mothers etc.
  • Keep consultations focused, interactive and deliberative. Creating an
    environment where people are comfortable with sharing their views may improve
    the quality of attention and information received from participants.
  • Where you need to consult with large numbers of people, providing for
    small group engagement is preferable to ensure that all people have an
    opportunity to give and receive information.
    In some cases, communities or
    groups may demonstrate preferences for separate meetings based on age, gender or
    elder status.
  • Where possible, ensure that engagement is structured in a way to provide
    an incremental skills building process for participants.
    For example,
    community members could develop a more comprehensive understanding of community
    development practices.
  • Use various participatory methods throughout the consultation process
    (oral, written, electronic and aided by translators) to maximise
  • It is important that government officers check for participant
    periodically during the course of any consultation session.
  • If necessary, consultation sessions should be small and targeted around specific stakeholder groups to protect privacy and confidentiality.
  • The consultation should aim for a gender balance in relation to
    overall participant representation.
  • Reach agreement with communities about how feedback will be provided after the consultation phase is concluded.
  • Identify the best ways to keep communities informed about
    developments regarding the issue/proposal.

2.3 Minimum
standard of information and transparency

  • Be clear about what outcome(s) the proposal seeks to achieve and what issue(s) the proposal seeks to address.
  • Be clear about the potential and real risks, costs and benefits of the proposed measure.
  • Be clear about what aspects of the proposed measure Aboriginal and
    Torres Strait Islander peoples will be involved in and if there are specific
    areas of concern.
  • Consultations should be transparent and have clear parameters. To
    avoid creating unrealistic community expectations, any aspects of a particular
    proposal that has already been decided or finalised should be clearly identified
    and declared. For example, if a decision has been made to continue with a
    particular activity, the government should clearly explain that they are seeking
    input on the design and implementation of the policy, rather than the merits of
    the policy itself.
  • Notice of proposed measure(s) must be given sufficiently in advance of
    its authorisation in order to give time for the community to reach informed
    consent or to arrive at considered points of difference.
    Adequate resourcing
    should be provided to communities and specific stakeholder groups to support
    them in their discussions and decision making, prior to a formal consultation
    process. It is important to be respectful of Aboriginal and Torres Strait
    Islander peoples’ timeframes to ensure inclusiveness around issues.
    Timeframes may be subject to cultural ceremonies and law, climatic and
    geographic conditions.
  • Government officers should provide full information regarding the
    parameters of the consultation, including what options are being considered as
    part of the consultation
    . It is important that you have clear parameters
    around your consultation process, for example measuring the benefit and
    effectiveness of a specific measure. However your consultation process should be
    sufficiently open-ended so that community members have an opportunity to discuss
    concerns or propose alternative methods that, in their view, may achieve the
    same or enhanced outcomes. These views should be formally noted. Participants
    should have an opportunity to fully communicate their wishes and aspirations as
    they relate to the future of their communities.

2.4 Implementation,
monitoring and evaluation

  • Provide feedback to communities as agreed at the front end of the
    process, including how decision-making was influenced by the consultation
  • Explain to community members the likely timeframes for the first
    phase of implementation.
  • Identify how you will accurately collect and record data during consultations.
  • Consider what specific, time bound and verifiable benchmarks and
    you will use to measure progress. Affected communities should
    have input into developing success measures.
  • Notify communities in a timely manner when outcomes are
  • Consider what measures will be used to evaluate the quality and effectiveness of the consultation process.
  • To ensure that there is transparency around the consultation process
    and that consultation findings correspond to decision making, government
    agencies may like to appoint an independent observer or request the assistance
    of the Commonwealth Ombudsman.
  • Explain what, if any options, community members have to call for a review
    of decision-making.
  • Government agencies should publish their consultation protocols. This
    information should be made available in plain English formats and in summary
    form. Where consultation was limited in its scope, explanation should be
    provided as to why a full process was inappropriate / not feasible.
  • Regular monitoring should be undertaken to ensure that actions taken
    for the purposes of the legislation are aligned with its core objectives.
  • Government agencies should evaluate and continuously improve their consultation processes.
  • Be approachable, contactable and meet the commitments you make to individuals and organisations throughout the consultation
  • Remember that consent is NOT valid if it is obtained through coercion or manipulation. Consent cannot be considered valid unless affected
    communities have been presented with ALL of the information relevant to a
    proposed measure.


[1] The following guidelines are
adapted from Human Rights and Equal Opportunity Commission and United Nations
Permanent Forum on Indigenous Issues, Engaging the Marginalised: Partnerships
between indigenous peoples, governments and civil society, 15 August 2005
(2005), at (viewed 23 November 2009); Australian Human Rights Commission, Draft
guidelines for ensuring income management are compliant with the Racial
Discrimination Act
(2009), at (viewed 23 November 2009); Parshuram Tamang, An Overview of the Principle of
Free, Prior and Informed Consent and Indigenous Peoples in International and
Domestic Law and Practices
, UN Doc PFII/2004/WS.2/8 (2005), at (viewed 23 November 2009); Australian Government, Best Practice Regulation
(2007), at (viewed 23 November 2009).