Native Title Report 2010: Appendix 4: Features of a meaningful and effective consultation process
Native Title Report 2010
Appendix 4: Features of a meaningful and effective consultation
process[1]
- The objective of consultations should be to obtain the consent or
agreement of the Aboriginal and Torres Strait Islander peoples affected by a
proposed measure
In all cases, States should engage in
‘[a] good faith effort towards consensual
decision-making’.[2] Consultation processes should therefore be framed ‘in order to make every
effort to build consensus on the part of all
concerned’.[3] - Consultation processes should be products of
consensus
The details of a specific consultation process should
always take into account the nature of the proposed measure and the scope of its
impact on indigenous peoples. A consultation process should itself be the
product of consensus. This can help ensure that the process is effective. - Consultations should be in the nature of
negotiations
Governments need to do more than provide
information about measures that they have developed on behalf of Aboriginal and
Torres Strait Islander peoples and without their input. Further, consultations
should not be limited to a discussion about the minor details of a policy when
the broad policy direction has already been set.Governments need to be willing and flexible enough to accommodate the
concerns of Aboriginal and Torres Strait Islander peoples, and work with them in
good faith to reach agreement. Governments need to be prepared to change their
plans, or even abandon them, particularly when consultations reveal that a
measure would have a significant impact on the rights of Aboriginal and Torres
Strait Islander peoples, and that the affected peoples do not agree to the
measure. - Consultations need to begin early and should, where necessary, be ongoing
Aboriginal and Torres Strait Islander peoples affected by a
law, policy or development process should be able to meaningfully participate in
all stages of its design, implementation and evaluation. - Aboriginal and Torres Strait Islander peoples must have access to
financial, technical and other assistance
The capacity of
Aboriginal and Torres Strait Islander communities to engage in consultative
processes can be hindered by their lack of resources. Even the most
well-intentioned consultation procedure will fail if Aboriginal and Torres
Strait Islander peoples are not resourced to participate effectively. Without
adequate resources to attend meetings, take proposals back to their communities
or access appropriate expert advice, Aboriginal and Torres Strait Islander
peoples cannot possibly be expected to consent to or comment on any proposal in
a fully informed manner. - Aboriginal and Torres Strait Islander peoples must not be pressured into
making a decision
Aboriginal and Torres Strait Islander peoples
should be able to participate freely in consultation processes. Governments
should not use coercion or manipulation to gain consent.In addition, Aboriginal and Torres Strait Islander peoples should not be
pressured into decisions through the imposition of limited timeframes. - Adequate timeframes should be built into consultation
processes
Consultation timeframes need to allow Aboriginal and
Torres Strait Islander peoples time to engage in their decision-making processes
and cultural protocols.Aboriginal and Torres Strait Islander peoples need to be given adequate time
to consider the impact that a proposed law, policy or development may have on
their rights. Otherwise, they may not be able to respond to such proposals in a
fully informed manner. - Consultation processes should be coordinated
across government departments
Governments should adopt a
‘whole of government’ approach to law and policy reform, pursuant to
which consultation processes are coordinated across all relevant departments and
agencies. This will assist to ease the burden upon Aboriginal and Torres Strait
Islander peoples of responding to multiple discussion papers and reform
proposals. - Consultation processes need to reach the affected
communities
Government consultation processes need to directly
reach people ‘on the ground’. Given the extreme resource constraints
faced by many Aboriginal and Torres Strait Islander peoples and their
representative organisations, governments cannot simply expect communities to
come to them.Governments need to be prepared to engage with Aboriginal and Torres Strait
Islander peoples in the location that is most convenient for, and is chosen by,
the community that will be affected by a proposed measure. - Consultation processes need to respect
representative and decision-making structures
Governments need
to ensure that consultations follow appropriate community protocols, including
representative and decision-making mechanisms.The best way to ensure this is for governments to engage with communities and
their representatives at the earliest stages of law and policy processes, and to
develop consultation processes in full partnership with them. - Governments must provide all relevant
information and do so in an accessible way
To ensure that
Aboriginal and Torres Strait Islander peoples are able to exercise their rights
to participate in decision-making in a fully informed way, governments must
provide full and accurate information about the proposed measure and its
potential impact.This information needs to be clear, accessible and easy to understand.
Information should be provided in plain English and, where necessary, in
language.
[1] This Appendix summarises the
‘Features of a meaningful and effective consultation process’ set
out in Chapter 3 of the Native Title Report 2010.
[2] J Anaya, Report of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, Report to the Human Rights Council, 12th
session, UN Doc A/HRC/12/34 (2009), para 50. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 19 October 2010).
[3] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 48. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 19 October 2010).