Native Title Report 2011: Chapter 3: Giving effect to the Declaration
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Native Title Report 2011
Chapter 3: Giving effect to the Declaration
- 3.1 Introduction
- 3.2 Lateral violence – a human rights issue
- 3.3 The Declaration on the Rights of Indigenous Peoples
- 3.4 Conclusion
3.1 Introduction
Indigenous peoples from all over the world have suffered the long-standing effects of colonisation. Consequently, we continue to struggle with the challenges that I have raised in this Report; particularly those that concern our identity, culture and access to and protection of our lands, territories and resources.
The Special Rapporteur on the rights of indigenous peoples, Professor James Anaya comments on the ongoing effects of colonisation stating that:
Indigenous peoples ... find themselves subject to political orders that are not of their making and to which they did not consent. They have been deprived of vast landholdings and access to life-sustaining resources, and have suffered historical forces that have actively suppressed their political and cultural institutions. As a result, indigenous peoples have been crippled economically and socially, their cohesiveness as communities has been damaged or threatened, and the integrity of their cultures has been undermined ... Historical phenomena grounded in racially-discriminatory attitudes are not just blemishes of the past but rather translate into current inequities.[1]
The High Commissioner for Human Rights, Ms Navanethem Pillay, also voices her concerns in this regard. The following comments are particularly relevant to the situation in Australia:
Even in wealthy countries, some indigenous peoples continue to live in squalor, destitution and hopelessness. Often they continue to suffer the consequences of colonization and century-long dispossession.
To confront and put an end to such exclusion and inequality, indigenous peoples must be included in decision-making. It is imperative that positive measures and policies be put into place to foster their participation.[2]
Aboriginal and Torres Strait Islander peoples have consistently demonstrated a strong determination to be recognised in our own right and to have our human rights respected and realised. However, the internalisation of the oppression imposed on us has had a profound impact on every aspect of our lives. This impact is exhibited through lateral violence.
Fortunately, we have available to us a powerful tool that can assist to address lateral violence by transforming behaviours from those that cripple to those that empower our communities. This is the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).
This Chapter will examine ways that the Declaration can guide the development of healthier relationships, not only with governments, industry and the wider Australian community but also within our Aboriginal and Torres Strait Islander families, communities and organisations.
I believe the Declaration provides a solid foundation of human rights upon which to build legislative, policy and program frameworks such as native title.
This Chapter will therefore consider how the Declaration can be used to guide the development of these frameworks to ensure that they comply with international human rights standards and principles, and as a result, empower Aboriginal and Torres Strait Islander peoples to reach their full potential. The Declaration guides us in developing the right tools to manage and respond to lateral violence.
In my view, the Declaration is not only a guide; it is also the assessment tool against which communities and governments can measure the successful application of human rights standards as they apply to the rights of Aboriginal and Torres Strait Islander peoples. If used in this way, it allows us to review, evaluate and modify the native title system to give it the best chance to reach its full potential into the future.
3.2 Lateral violence – a human rights issue
Lateral violence is a human rights issue. As detailed in the Social Justice Report 2011, lateral violence is a product of a complex mix of historical, cultural and social dynamics that results in a spectrum of behaviours such as gossiping, jealousy, bullying, shaming, social exclusion, family feuding and organisational conflict, which can and often do, escalate into physical violence.
However, as outlined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child everyone has the right to be respected and safe.[3] I believe that lateral violence violates this most fundamental human right.
The discussion in Chapter 2 demonstrates how lateral violence behaviours can be provoked and stimulated by structures like the native title system. As I outline in Text Box 3.1, these behaviours negatively affect a number of human rights.
| Text Box 3.1: Human rights affected by lateral violence |
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Lateral violence can affect a number of human rights including:
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Text Box 3.1 demonstrates that lateral violence is clearly a human rights issue.
I believe that a human rights based response must be applied to address the power imbalance that triggers and nurtures lateral violence in Aboriginal and Torres Strait Islander communities because a human rights based approach:
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Provides governments and communities with a set of minimum and objective standards based on dignity and equality to inform and guide the development of policy, legislation and social and governance structures.[14]
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Ensures Aboriginal and Torres Strait Islander peoples are key actors in addressing lateral violence and provides guidance on the roles of governments and communities to address these issues.[15]
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Requires that in the exercise of human rights all people must have their rights respected.
- Affirms that in the exercise of any right, we have a responsibility to behave in a way that ensures that everyone else can similarly enjoy all human rights.
3.3 The Declaration on the Rights of Indigenous Peoples
The Declaration is the most comprehensive tool we have available to advance the rights of Aboriginal and Torres Strait Islander peoples and to address the contemporary effects of oppression and colonisation.[16]
In essence, the Declaration ‘contextualises human rights with attention to the patterns of indigenous group identity and association that constitute them as peoples’. As James Anaya argues:
It is precisely because the human rights of indigenous groups have been denied, with disregard for their character as peoples, that there is a need for the Declaration...the Declaration exists because indigenous peoples have been denied equality, self-determination, and related human rights. It does not create ... new substantive human rights that others do not enjoy. Rather, it recognizes for them rights that they should have enjoyed all along ... contextualises those rights in light of their particular characteristics and circumstances, and promotes measures to remedy the rights’ historical and systemic violation.
The Declaration ... will go a long way ... toward rolling back inequities and oppression.[17]
Not only was the Declaration informed by and drafted with Indigenous peoples, it catalogues all human rights contained in international treaties and mechanisms that are particularly relevant to Indigenous peoples being able access their lands, territories and resources.
As I discuss in Chapter 2, it is the need to secure and protect these rights through non-Indigenous processes and structures such as the native title system, that creates the potential for an environment where relationships are tested and lateral violence thrives.
In addition to outlining our human rights, the Declaration provides guidance in clarifying, establishing and strengthening relationships. The Declaration also guides our responsibilities in our relationships. I believe that any response to a violation of a human right must be found within the particular human right being violated.
A holistic and integrated approach is required; one that uses the key principles that underpin the Declaration. These key principles are:
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self-determination
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participation in decision-making and free, prior and informed consent
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non-discrimination and equality
- respect for and protection of culture.
I believe that these principles provide a useful lens to look at any human rights challenge confronting Aboriginal and Torres Strait Islanders peoples. I demonstrate what such an approach could look like in Chapter 4 when I look at developing human rights based responses to lateral violence.
These key principles reinforce each and every one of the rights contained within the Declaration. It is my view that lateral violence occurs when these fundamental human rights and principles are not met.
I will discuss below how each of these principles relate to our discussion on the manifestation of lateral violence in the native title environment.
I strongly believe that if we draw on these principles to guide all of our efforts, both internally and externally, to secure the rights of Aboriginal and Torres Strait Islander peoples, the potential for lateral violence will be significantly reduced.
(a) Self-Determination
Exercising self-determination for Aboriginal and Torres Strait Islander peoples is challenging in Australia because of our history of colonisation and the imposition of laws that are not designed or developed to accommodate our vastly different systems of social organisation.
(i) What does self-determination look like?
Self-determination can mean different things to different groups of people and so there is no pre-determined outcome of what self-determination looks like. However, the principle and right of self-determination has a number of characteristics, which can be used to guide the development of structures and processes that promote self-determination: see Text Box 3.2.
| Text Box 3.2: The principle of self-determination[18] |
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The characteristics of self-determination include that it:
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The power of the Declaration to address lateral violence is in its affirmation that Indigenous peoples have the right of self-determination, its recognition that we have been denied this right, and the parameters it identifies for processes that will remedy that denial.[19]
In consideration of the characteristics outlined above, self-determination as it applies to Indigenous peoples is the right of a group of peoples to meet the human needs[20] of that group, including the means to preserve that group’s identity and culture.[21]
Exercising the right of self-determination means we have the ‘freedom to live well and live according to our values and beliefs’.[22] Self-determining people are ‘actors in their own lives instead of being acted upon others’. In other words, ‘they make things happen in their lives. They are goal oriented and apply problem-solving and decision-making skills to guide their actions’.[23]
I note also that the Australian Government acknowledges it has a role in fulfilling the right of self-determination as it applies to Aboriginal and Torres Strait Islander peoples. In the Government’s statement adopting the Declaration in 2009, Minister Macklin confirmed that:
[t]hrough the Article on self-determination, the Declaration recognises the entitlement of Indigenous peoples to have control over their destiny and to be treated respectfully ... We support Indigenous peoples’ aspirations to develop a level of economic independence so they can manage their own affairs and maintain their strong culture and identity ... We also respect the desire, both past and present, of Indigenous peoples to maintain and strengthen their distinctive spiritual relationship with lands and waters ... [and] [w]here possible, the Australian Government encourages land use and ownership issues to be resolved through mediation and negotiation rather than litigation.[24]
(ii) Self-determination and native title, rights to lands, territories and resources
The Native Title Report 2007 identified two reasons why the recognition of native title by Australian law is vital for Aboriginal and Torres Strait Islander peoples to be able to freely exercise self-determination:
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Firstly, the recognition of Aboriginal and Torres Strait Islander peoples, our societies and our laws and customs that takes place when the Federal Court makes a determination that native title exists and who holds it, affirms our cultural identity and our connections and cultural responsibilities to our lands, territories and resources.
- Secondly, the actual rights and interests recognised can facilitate opportunities to achieving economic, social and cultural outcomes for Aboriginal and Torres Strait Islander peoples.[25]
As Justice Merkel in the Rubibi case pointed out, the resolution of native title claims is:
a means to an end, rather than an end in itself. Achieving native title to traditional country can lead to the enhancement of self respect, identity and pride for indigenous communities ... native title can also be seen as a means of indigenous people participating in a more effective way in the economic, social and educational benefits that are available in contemporary Australia. Obtaining a final determination of native title, where that is achievable, can be a stepping-stone to securing those outcomes but cannot, of itself, secure them.[26]
Engaging in the native title process as traditional owners is only one element of self-determination. Merely engaging in the native title process will not result in the full exercise of self-determination because the system does not adequately facilitate our effective engagement or our access to and enjoyment of the benefits arising from it.
Achieving self-determination is difficult because of the dichotomy of a government that has a focus on the pursuit of individual wealth creation and Aboriginal and Torres Strait Islander peoples who may pursue self-determination as individuals or groups within a cultural context that focuses more broadly on social, cultural and environmental as well as economic benefits.
Further, Aboriginal and Torres Strait Islander communities have cultural rights and responsibilities to our families and our lands, territories and resources that are different to non-Indigenous Australians. Balancing these differences can create conflict in our communities and this can result in lateral violence.
As demonstrated in Chapter 2, our efforts to try and fit into non-Indigenous legal systems create a situation where native title holders are often forced to compromise their traditional decision-making processes and values to fit these imposed governance structures. The intra-Indigenous conflict that arises as a result of these circumstances often leads to mistrust and suspicion between Aboriginal and Torres Strait Islander peoples which can fracture the social cohesion of the group involved and impede self-determination.
(iii) Government and our right of self-determination
Prior to announcing their support for the Declaration in 2009, the Australian Government consistently failed to support the concept of self-determination. Rather than ensuring the capacity of Aboriginal and Torres Strait Islander peoples to actively participate in decision-making and take control of our own futures, successive governments have attempted to address the disadvantage we face through mainstream policy platforms or legislation that affirms government control over our lives.
In the second preambular paragraph of the Declaration, the General Assembly of the United Nations affirms:
.... that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such.[27]
While this might seem innocuous at first glance, it actually imposes obligations on governments to design and implement systems that cope with difference. This means it is not up to the individuals and communities who are different to navigate their way through the western legal system. The system should be designed to accommodate difference.
The need for the native title system to accommodate different cultural values, decision-making processes and governance structures has consistently been raised with the Australian Government by both Aboriginal and Torres Strait Islander peoples themselves and the non-government organisation (NGO) sector. To date, however, native title reform has not addressed these particular limitations within the system. This leaves communities trying to define themselves in ways that are understandable and acceptable to non-Indigenous requirements; but undermine and distort our identities,[28] our right to determine and develop our own priorities and strategies for the development or use of our lands, territories and resources,[29] and our right of self-determination.[30]
Further, Aboriginal and Torres Strait Islander peoples must be able to access and use the tools provided by the native title system to promote the right of self-determination. For example, two of the key mechanisms provided by native title that can enable us to exercise self-determination are the negotiation of Indigenous Land Use Agreements (ILUAs) or native title settlement agreements; and the establishment of Prescribed Bodies Corporate (PBCs) that are set up to manage determined native title rights and interests and the distribution of any benefits secured.
As these mechanisms are designed in accordance with non-Indigenous legal systems and corporate structures, there is often a direct conflict with the ‘governing institutional order’ of Aboriginal and Torres Strait Islander peoples. Mechanisms and processes intended to empower and benefit us must actually do so by enabling our active and appropriate participation in decision-making and developing our capacity to access and manage any accrued benefits.
On the one hand, structures that are based on imposed control and regulation do not provide for appropriate governance arrangements and do not empower communities to make decisions or determine our own futures in accordance with our human rights. On the other hand, a community that is insecure in its cultural identity, with unchecked family-feuds that uses decision-making processes like native title as a platform for these feuds, is not self-determining.
A self-determining community not only exerts control but it also self-regulates. It decides how disputes are resolved, how decisions are made, what protocols for behaviour are acceptable, and it ensures the well-being and active participation of the entire community.
(iv) Guidance provided by the Declaration
The Declaration clearly outlines the rights that promote self-determination and how governments can incorporate the principle in their laws and policies: see Text Box 3.3.
| Text Box 3.3: Promoting self-determination in a native title context using the Declaration |
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While the principle of self-determination underpins all rights outlined in the Declaration, a number of provisions directly promote the right of self-determination. The Declaration also directly informs governments about how they should implement this right. Self-determination as it applies to the native title system and other land and resource related processes is articulated in the Declaration as follows. Aboriginal and Torres Strait Islander peoples have the right to:
Government’s role is to facilitate our right of self-determination by establishing systems that:
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(b) Participation in decision-making and free, prior and informed consent
Like self-determination, free, prior and informed consent reinforces all of the rights contained within the Declaration. In fact, free, prior and informed consent has been identified as a ‘requirement, prerequisite and manifestation of the exercise of our right to self-determination’.[31]
In Australia today, Aboriginal and Torres Strait Islander peoples do not have genuine decision-making authority and power over their lives and futures. That power and authority continues to rest in the hands of governments.[32]
As I discuss in Chapter 2, the native title system is currently supported by an unequal power dynamic that promotes the external decision-making processes of governments and breaks down internal decision-making and conflict management processes of Aboriginal and Torres Strait Islander peoples.
The denial of our right to participate in decision-making and the deterioration of our community norms and protocols increases the potential for conflict resulting in lateral violence. In order to avoid this outcome, our participation in decision-making must be underpinned by the principle of free, prior and informed consent.
The successful operation of the native title system is dependent on the effective and appropriate engagement and participation of Aboriginal and Torres Strait Islander peoples in decision-making. However, as I argue in Chapter 2, the ‘complexities and inter-relatedness of Indigenous societies means that issues are multi-levelled, multi-directional and multi-layered’,[33] and processes for decision-making must be able to accommodate a wide range of issues and players.
The consequences of decisions often ripple across the community and beyond, along extensive Indigenous social and cultural networks. Outcomes invariably affect Indigenous people who may not be directly involved in making the decisions and issues under consideration are often influenced by, and not be seen as separate from, other issues in the community.[34]
The principle of free, prior and informed consent should underpin the development of all frameworks of engagement with Aboriginal and Torres Strait Islander peoples and therefore is fundamental to ensuring our effective participation in decision-making on issues that affect us. Securing these key principles early in the process ensures that the introduction of frameworks and processes do not further exacerbate existing conflicts or create new ones.
(i) What are the key features of free, prior and informed consent?
In the Native Title Report 2010,[35] I outlined the elements of a common understanding of free, prior and informed consent, and features of a meaningful and effective consultation process. These are summarised again below: see Text Box 3.4.
| Text Box 3.4: Free, prior and informed consent;[36] and meaningful and effective engagement, participation and consultation[37] |
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What does free, prior and informed consent mean? When making policies, laws or undertaking activities that affect our peoples, governments and others should negotiate with us with the aim of obtaining our consent. For government, this is much stronger than an obligation to just provide information or ‘consult’. Governments and companies should not impose their position onto our peoples without first taking our rights into consideration. The following outlines free, prior and informed consent:
Importantly, the onus is on the organisation (government, corporate or our own representative bodies) who is seeking consent or a decision to be made to ensure that the decision that is made is free and informed.[39] Internal and external aspects of decision-making The principle of free, prior and informed consent should be applied to both internal and external aspects of decision-making and underpin the formulation of governance arrangements. Participation in decision-making has two distinct elements: internal and external.[40]
The Expert Mechanism on the Rights of Indigenous Peoples asserts that:
Effective engagement with Indigenous peoples is essential to ensure that external decision-making supports internal decision-making processes of Indigenous peoples. Meaningful and Effective Engagement, Consultation and Participation Based on international standards and the experiences of Aboriginal and Torres Strait Islander peoples and their representatives,[44] meaningful and effective engagement and participation should be promoted in consultation processes by including the following features as a minimum:
The features set out above can be used to facilitate participation, guiding the development of appropriate engagement processes on a case-by-case basis. However, they should not be used to advocate a ‘one-size-fits-all’ model of consultation. |
In speaking to people in government, I often detect anxiety about what free, prior and informed consent means, particularly whether it means a veto right. But the right to free, prior and informed consent is, as Kenneth Deer puts it:
... not automatically a veto, since our human rights exist relative to the rights of others. Nor is there any reference to a veto in the Declaration. Free, prior, and informed consent is a means of participating on an equal footing in decisions that affect us.[45]
The informed component of free, prior and informed consent places obligations on the organisation seeking consent to ensure that the people giving consent are fully informed. That is, we must be told the good, the bad and the ugly of any decision that we may be asked to make. This means that affected Aboriginal and Torres Strait Islander communities are to be informed of all the relevant information. If information is provided to a community in an ad hoc manner, weapons of lateral violence like rumours and innuendo can fill the void.
(ii) Internal and external decision-making processes
Effective participation in decision-making is essential to remedy the inequality that exists within the native title system. The absence of appropriate internal and external decision-making processes in native title not only delays the determination of outcomes, it provides opportunities for latent conflict (such as intra/inter-family disputes, economic disparity, and historical and contemporary cultural issues that centre on identity) to surface and further complicate and delay reaching the best possible outcome.
The potential for lateral violence can be significantly reduced by:
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developing appropriate engagement protocols with traditional owner groups to improve our own internal decision-making processes
- reforming mechanisms to facilitate our effective participation in external decision making.
Engagement protocols that provide guidelines for internal and external engagement should be grounded in the principle of free, prior and informed consent.
Effective internal decision-making processes are respectful, inclusive, build group cohesion, have democratic legitimacy and include mechanisms for resolving disputes. Dispute resolution is discussed further in Chapter 4.
External consultation and engagement processes by third parties, including governments, NGOs and industry should be developed in cooperation with Aboriginal and Torres Strait Islander peoples. They should be flexible enough to accommodate the internal decision-making processes of the Aboriginal and Torres Strait Islander communities they are working with and incorporate dispute resolution or conflict management processes.
They should build community cohesion, strengthen relationships and decision-making capacity, and should not become a platform for disputes and family feuds to be played out.
Robust internal and external decision-making processes can also facilitate mutual understanding about the priorities for each of the parties at the table and also what motivates them: their needs, wants, fears and concerns.
Importantly, these processes should, as much as possible, counteract behaviours that foster lateral violence such as coercion and exclusion.
Without understanding these crucial elements, outcomes will be based on power and authority rather than achieving a win-win outcome.
(iii) Effective participation in decision-making is central to securing and exercising native title and rights to lands, territories and resources
Native title outcomes should reflect the aspirations of traditional owners. However, while the native title system provides for the recognition of the rights of Aboriginal and Torres Strait Islander peoples to our lands and territories, the Native Title Act does not afford native title claimants the right to participate in accordance with free, prior and informed consent. In fact, as discussed in Chapter 2, it significantly limits the opportunities for traditional owners to participate in decisions about activities (whether they be our aspirations to own, use or develop our lands; or the aspirations of others) on our lands.
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In the original Native Title Act, the right to negotiate was included in recognition of the ‘special attachment of Aboriginal and Torres Strait Islander people to their land’.[46] The Native Title Amendment Act 1998 (Cth) changed the right to negotiate provisions. It authorised states and territories to introduce legislation that allowed for exceptions to the right, in effect significantly diminishing the right to negotiate. The amendments also changed the right to negotiate in the Native Title Act itself, replacing it with the lesser rights to only make comment or be notified. |
As I examine in Chapter 2, the native title system in its current form ensures that negotiations occur on an unequal playing field. However, it not only reflects the power imbalance that exists between Aboriginal and Torres Strait Islander peoples, the State and influential extractive industries; it also sets up an unequal power dynamic and socio-economic inequities for Aboriginal and Torres Strait Islander peoples generally – creating the ‘haves’ and the ‘have not’s’.
This is not only an issue within native title groups but extends to the broader community. For example, ‘in native title processes, “native title holders” are often seen to constitute the appropriate agreement-making group to the exclusion of “historical” people with whom they may have close family ties, or have lived for many years.’[47] This creates the ideal situation for lateral violence to play out.
Effective participation in decisions about our native title rights and interests is critical to our overall well-being, both as individuals and as groups of peoples. This is particularly important because of the unique cultural obligations and relationships we have to our lands, territories and resources. The greater the impact and damage that a decision or project will have on our people’s lives, cultural integrity and country, the greater the need to reach an outcome to which we can all agree.[48]
As such, the principle of free, prior and informed consent should be achieved before any of the following actions are taken:
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projects or decisions that affect our country including mining, development and the use or destruction of sacred sites
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the use of biological materials, traditional medicines and knowledge, including artwork, dance and song
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making agreements or treaties between government and our peoples
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the creation of laws or policies that affect our peoples
- actions that could lead to the forced removal of Aboriginal and Torres Strait Islander peoples from country.[49]
The Goldfields Land and Sea Council have developed a mining policy; Our Land is Our Future, which guides the Council’s decision-making on mining-related activity. The policy adopts human rights standards including those contained in the Declaration. Importantly, it asserts that the free, prior and informed consent of the traditional owners is to be secured before mining activities are approved.
The policy also includes:
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overarching and operational principles for mining-related decisions
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procedures for mining-related decisions
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a statement outlining the relationship of the mining policy to Aboriginal rights
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principles that promote environmental, economic, social and cultural sustainability
- a review mechanism.[50]
(iv) Government obligations to facilitate our participation
I acknowledge the efforts of the Australian Government to seek the views of Aboriginal and Torres Strait Islander peoples and their representatives on reforming the native title system. However, I reiterate my concerns that many of these processes do not effectively facilitate our full participation or seek to obtain our free, prior and informed consent; and where they do, our views are often not reflected.
The United Nations Permanent Forum on Indigenous Issues voiced its concerns at the apprehension displayed by States in implementing free, prior and informed consent:
Such consent is vital for the full realization of the rights of indigenous peoples and must be interpreted and understood in accordance with contemporary international human rights law, and recognized as a legally binding treaty obligation where States have concluded treaties, agreements and other constructive arrangements with indigenous peoples. In this regard, the Permanent Forum emphatically rejects any attempt to undermine the right of indigenous peoples to free, prior and informed consent. Furthermore, the Forum affirms that the right of indigenous peoples to such consent can never be replaced by or undermined through the notion of “consultation”.[51]
Unfortunately, the Australian Government is yet to demonstrate an understanding of or a solid commitment to effective engagement that is consistent with free, prior and informed consent with Aboriginal and Torres Strait Islander peoples.
Governments are under a duty to consult ‘whenever a State decision may affect Indigenous peoples in ways not felt by others in society’, even if our rights have not been recognised in domestic law.[52] This duty requires governments to consult effectively with us before adopting or implementing measures that may affect our rights. However, the objective of consultations must be more than governments telling us what they want to do for or to us. The intent of consultations ‘should be to obtain the consent or agreement of the Indigenous peoples concerned’.[53]
To do this effectively, the current requirement to consult must be extended to reflect in a practical sense a requirement to effectively negotiate. This not only applies to the agreement-making opportunities that form part of the native title system, it also applies to reforming the policy and legislative framework. Policy making processes that are based on consultation alone do not satisfy the principles of equality, equity and effective participation required under international law.
While the Australian Government conducts consultations on a range of issues through various mechanisms such as Senate Committees, reviews and evaluations of policies and programs, more often than not the contributions made by Aboriginal and Torres Strait Islander stakeholders are not reflected in the final outcome. These impacts were addressed in the Native Title Report 2010.[54]
Lateral violence can be exacerbated by governments through a lack of recognition and engagement with Aboriginal and Torres Strait Islander peoples and by relying on processes that do not reflect their input and as a result, pit groups against each other. For instance, where an Aboriginal person was sent to represent their group in a community consultation, if their views or aspirations are not reflected in the outcome, this person may be seen to have not represented or misrepresented their views to the government. Alternatively, they can be blamed for outcomes decided by government that restrict or deny the human rights of the communities represented.
As discuss in Chapter 1, the Australian Government has made some attempts to improve engagement with Aboriginal and Torres Strait Islander peoples through their Engagement Framework. However, in order for these efforts to create holistic systemic change they must be adopted as standard practice instead of being applied in an ad hoc or voluntary manner. Further, they must inform whole of government responses to Aboriginal and Torres Strait Islander policy development and implementation.
A critical step required to achieve a significant improvement in the lives of Indigenous peoples is for governments to recognise, endorse and treat Aboriginal and Torres Strait Islander peoples as substantive players and major stakeholders in the development, design, implementation, monitoring and evaluation of all policy and legislation that impacts on us.
The Australian Human Rights Commission publication, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples, highlights that adhering to the principle of free, prior and informed consent:
... creates a process where governments or companies and our peoples can talk to each other on an equal footing and come to a solution or agreement that all parties can accept.[55]
External decision-making processes that are guided by free, prior and informed consent increase the capacity for governments to engage with Aboriginal and Torres Strait Islander communities and reduce the possibility of having dealings hijacked by internal disputes.
(v) Guidance provided by the Declaration
A number of rights contained within the Declaration require that free, prior and informed consent is obtained. The Declaration also clearly affirms our right to participate in decision-making: see Text Box 3.5.
| Text Box 3.5: The requirement to obtain free, prior and informed consent and the right to participate in decision-making |
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The Declaration requires that governments and external stakeholders obtain the free, prior and informed consent of Indigenous peoples, particularly in relation to:
The right to participate in decision-making is affirmed as follows:
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(c) Non-discrimination and equality
As highlighted in the Social Justice Report 2011, discrimination and inequality perpetuates lateral violence in three ways:
- Racial discrimination reinforces negative stereotypes about Aboriginal and Torres Strait Islander peoples. Over time these stereotypes can become internalised and generate lateral violence.
- Lateral violence thrives in environments where human needs (including our acceptance, access and security needs) are not met.
- Equality requires an acknowledgement of cultural difference and recognition that historical discrimination has continuing negative impacts.
(i) Discrimination, inequality and identity
Inequality is generated by the existence and promotion of unequal power dynamics. Discrimination arises where the powerful assert their authority against the powerless. While Aboriginal and Torres Strait Islander peoples can face all categories of discrimination (including sex, age, disability and race-based discrimination), race based discrimination exacerbates the effects of all others.
| Text Box 3.6: Race discrimination in Australia |
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In Australia, protections against discrimination on a number of grounds including race, colour, descent, or national or ethnic origin, are provided through the Racial Discrimination Act 1973 (Cth) (RDA). In 1995, the RDA was amended to include racial vilification. The RDA, administered by the Australian Human Rights Commission, gives effect to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the Australian Government ratified in September 1975. Racism – defined as the hatred or intolerance of another race or other races – results in much more than humiliation, embarrassment and hurt feelings. Racism has serious health, social and economic consequences for individuals, communities and societies. It’s been associated with depression, anxiety, high blood pressure, heart disease, smoking, alcohol and substance abuse as well as poor employment and educational outcomes.[56] Racism has the potential to do plenty of damage regardless of who perpetrates it. Current evidence also suggests that race based discrimination and exclusion also impacts on families, family life and local communities with multiple and serious social and economic costs.[57] |
As highlighted above, race discrimination reinforces negative stereotypes about Aboriginal and Torres Strait Islander peoples. Unfortunately, these stereotypes can also negatively influence the effective operation of the native title system.
This was particularly relevant in the early days of native title, where we heard claims by Members of the Federal Parliament that native title directly threatened the backyards and homes of ordinary Australians.[58] This sentiment was repeated again in 2006, in relation to the Noongar peoples whose traditional lands cover metropolitan Perth in Western Australia. The Australian Government was widely reported in the media saying that there would be no guarantee that Perth’s beaches, parks and riverbanks will be excluded from a successful native title claim.[59]
While these claims are unfounded, these fears continue to permeate the native title landscape and affect our engagement within the system and the way external stakeholders see us and engage with us in the native title process. The fact that the interests of non-Indigenous stakeholders always take precedence over the inherent rights of Aboriginal and Torres Strait Islander peoples demonstrates this ongoing inequality within the native title system. We enter into the native title system knowing that when an impasse is reached, Government still retains the power to compulsorily acquire land in the ‘national interest’.
I will briefly outline the types of race discrimination below, as I believe that in order to confront and address discrimination, we must be aware of it and its damaging effects.
(ii) So how does race discrimination relate to lateral violence?
Racism is a form of oppression that relies on and reinforces negative stereotypes. As we have seen recently in the media, racism can be very direct. Direct racism[60] is extremely confronting and demoralising for Aboriginal and Torres Strait Islander peoples and goes to the heart of our identity, and our sense of belonging as Australians. It can be as simple as being called an ‘Abbo’ or a ‘Boong’, and as extreme as having non-Indigenous people question your Aboriginality publicly. Race discrimination attacks and denies our cultural heritage and it denies our histories of oppression and colonisation.
Some forms of racism are less identifiable. For example, institutionalised or systemic racism is an indirect and largely invisible process. It is the application of beliefs, values, presumptions, structures and processes by the institutions of society (be they economic, political, social or cultural) that indirectly treats the values of a particular racial group as inferior. It can involve a failure to acknowledge historical discrimination against a particular group which results in that group in the present day occupying an inferior or unequal position in society.
Systemic racism has been perpetuated by legislative and policy frameworks that seek to define what constitutes being Aboriginal or Torres Strait Islander.[61] These legislative frameworks have supported the colonisation process in Australia and continue to affect our own constructs of identity, family, community and systems of organisations. Because of the issues that I have discussed both above and in the Social Justice Report 2011, the native title system and other policy and legislative frameworks concerning our lands, territories and resources may also be used to support these circumstances.
I discuss in Chapter 4 how reforms to the native title system can assist in overcoming the barriers racism presents. It is my strong view that in order to reset and strengthen relationships between Aboriginal and Torres Strait Islander peoples and governments, work needs to be done to eradicate racism and break down the negative stereotypes and preconceptions that we have of each other.
(iii) Governments obligations to eradicate racism
The role for governments is to remove existing structural and systemic impediments to healthy relationships within our communities and reinforce protections against race discrimination. In the native title context, this will not only improve relationships between traditional owners and governments, it will also facilitate positive relationships between traditional owners and external parties to native title negotiations.
More generally, we should start with committing to a zero tolerance of racial discrimination across all legislation and policies. This will alleviate some of the tension that is created by the systemic requirement to conform to inappropriate legislative and policy arrangements, and systems of governance, in turn alleviating the experience and effect of lateral violence in our communities.
The Australian Government appeared before the Committee on the Elimination of Racial Discrimination (CERD) in August 2010. As a signatory to the CERD, Australia has a legal obligation to ensure that it protects its citizens from race discrimination. The CERD has provided nation-states with considerable guidance to establishing measures in this regard. In particular, the CERD has provided clear guidance to the Australian Government on applying this Convention to the rights of Aboriginal and Torres Strait Islander peoples including:
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General Comment XXIII,[62] which acknowledges that the preservation of Indigenous culture and identity has been jeopardised as a result of colonisation, ongoing discrimination and the denial of human rights and fundamental freedoms. In paragraph 4 of the general comment, the Committee specifically calls on governments to:
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(a) recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation
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(b) ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity
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(c) provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics
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(d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent
- (e) ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages
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- The Committee’s Concluding Observations on Australia[63]where the Committee reiterated ‘in full its concern about the Native Title Act 1993 and its amendments’, particularly regarding the ‘persisting high standards of proof required for recognition of the relationship between indigenous peoples and their traditional lands, and the fact that despite a large investment of time and resources by indigenous peoples, many are unable to obtain recognition of their relationship to land’. The CERD recommended that the Australian Government ‘enhance adequate mechanisms for effective consultation with indigenous peoples around all policies affecting their lives and resources’.
(iv) Guidance provided by the Declaration
As set out in Text Box 3.7, the Declaration contains a number of rights that support non-discrimination and equality.
| Text Box 3.7: Promoting non-discrimination and equality |
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The Declaration states that Indigenous peoples and individuals:
Governments have a responsibility to:
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(d) The respect for and the protection of culture
Aboriginal and Torres Strait Islander peoples belong to the oldest continuing culture[64] in the world. When respected and nurtured, culture is a source of strength, resilience, happiness, identity and confidence. This is particularly so for those who have been removed from their lands and territories, where access to their culture and lands provides a critical link to their cultural heritage.[65]
As such, access to our lands, territories and resources is essential to our cultural identity, cultural integrity and cultural self-determination. The International Law Association argues that while political self-determination is significant, ‘cultural’ self-determination may be the most important element of gaining control of our destinies:
What most indigenous peoples pursue is especially “cultural” self-determination, which has been defined as “the right to recapture their identity, to reinvigorate their ways of life, to reconnect with the Earth, to regain their traditional lands, to protect their heritage, to revitalize their languages and manifest their culture – all of these rights are as important to indigenous people as the right to make final decisions in their internal political, judicial, and economic settings”. Self-determination and the right to self-government for indigenous peoples presuppose that the “survival of their culture, their cosmovision, and their respect for the Earth, including all living and non-living things” is granted.[66]
This position is also reflected by Aboriginal and Torres Strait Islander peoples in Australia. However, our culture and our cultural identities have endured significant pressure as a result of colonisation. As Mick Dodson observes:
Along side the colonial discourses we have always had our own Aboriginal discourses in which we have continued to create our own representations, and to recreate identities which escaped the policing of the authorised versions. They are Aboriginalities which arise from our experience of ourselves and our communities.
They draw creatively from the past, including the experience of colonisation and false representation. But they are embedded in our entire history, a history which goes back a long time before colonisation was even an issue.Those Aboriginalities have been, and continue to be a private source of spiritual sustenance in the face of others' attempts to control us.[67]
Michael Halloran argues that ‘effects that continuously and severely suppress or undermine a culture would be expected to produce ongoing cultural trauma, which is likely to result in anxiety-based maladaptive behaviours amongst its members’.[68] For example, imposed or adopted cultural influences and experiences have resulted in questions of authenticity, both from within and from outside our families and communities.
It is my view that where our communities are struggling to maintain and protect their culture, these maladaptive behaviours result in lateral violence.
The native title system and other land rights and cultural heritage processes directly question our culture and our cultural identities. Further, they require a justification that is consistent with parameters defined by government and other stakeholders.
This has been a source of considerable conflict and lateral violence for many people and this will continue until appropriate structures are established with Aboriginal and Torres Strait Islander peoples that promote, maintain and protect our culture.
(i) Ensuring our right to our culture
In order to address this significant deficiency, the recognition of Aboriginal and Torres Strait Islander cultures and cultural differences must be a key consideration in policy development and implementation in Australia. Culture is a strength upon which policy responses should be built and as such must not be confined to the margins or be an afterthought in the development of policy and programs. Prioritising culture results in empowerment and requires the recognition of our cultural differences.
The Declaration provides a strong basis from which Aboriginal and Torres Strait Islander peoples can affirm their rights and define their aspirations in their relations with governments and other stakeholders around development with culture and identity.
Article 3 is central to the Declaration as it refers to the right to self-determination. Article 32 is also a key provision that captures the essence of culture with development and identity.
...
In pursuing their well-being and sustainability, indigenous peoples should reconstitute, restore, and revitalize their cultures, priorities and perspectives. This change is in line with their rights enshrined in the Declaration and other international human rights standards.[69]
A human rights framework also promotes the concept of cultural safety and security. A culturally safe and secure environment is one where our people feel safe and draw strength in their identity, culture and community. Lateral violence on the other hand, undermines and attacks identity, culture and community. In Chapter 4, I advocate the need to create an environment that ensures:
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cultural safety within Aboriginal and Torres Strait Islander communities and organisations
- cultural security by external parties such as governments, industry and NGOs who engage with Aboriginal and Torres Strait Islander communities and organisations.
I also discuss in Chapter 4 the importance of ensuring that structures that intend to promote our development are reinforced by culturally relevant frameworks that promote cultural safety and security, and culturally appropriate conflict management mechanisms.
(ii) Guidance provided by the Declaration
The principles discussed so far; self-determination, free, prior and informed consent, and non-discrimination, provide the reinforcing foundations necessary to ensure the promotion, maintenance and protection of our cultures and identities.
The Declaration recognises and affirms that our inherent rights, in particular our rights to our lands, territories and resources, are derived from our cultures, spiritual traditions, histories and philosophies and must be promoted and respected. It also recognises that our cultures, Indigenous knowledge and traditional practices contribute to the sustainable and equitable development and proper management of the environment.
The Declaration asserts that having control over developments that affect our lands, territories and resources will enable Indigenous peoples to maintain and strengthen our institutions, cultures and traditions, and to promote our development in accordance with our aspirations and needs.[70] Empowering our communities in such a way will counter the impacts of lateral violence on our development.
Text Box 3.8 outlines the rights in the Declaration that seek to protect our culture.
| Text Box 3.8: Respect for and the protection of culture |
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The Declaration states that Indigenous peoples and individuals:
Governments have a responsibility to:
|
3.4 Conclusion
The Declaration contains the ‘minimum [international] standards for the survival, dignity and well-being of the indigenous peoples of the world’.[71] It reaffirms that Aboriginal and Torres Strait Islander peoples are entitled to all human rights recognised in international law without discrimination. But it also acknowledges that, without recognising the unique and collective rights of Indigenous peoples and ensuring the protection of our cultures, we can never be truly free and equal.
The Declaration is the international instrument that provides the most authoritative guidance to governments about how their binding human rights obligations apply to Indigenous peoples. It catalogues existing human rights standards in one document and interprets them giving full consideration to Indigenous peoples’ unique historical, cultural and social circumstances.
In the context of addressing lateral violence, the Declaration can assist us to develop stronger and deeper relationships within our communities, and guide relationships between Indigenous peoples and the broader community but more particularly between governments and Indigenous peoples.
Table 3.1 demonstrates that actions based on this guidance would seek to remedy the historical and contemporary drivers of lateral violence.
| Table 3.1: The Declaration guiding responses to lateral violence | |
|
Historical and contemporary drivers of lateral violence |
Declaration |
|
|
|
|
|
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The Declaration provides clear direction that enables us to transform negative behaviours that manifest in lateral violence and create dysfunction in our families and communities into effective and appropriate frameworks that support our individual and collective self-determination.
As it relates to native title, the Declaration assists us to develop responses to lateral violence that:
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empower us to take control of our community and community aspirations
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promote and develop our community decision-making and dispute resolution protocols
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address discrimination and negative stereotypes by promoting equality that recognises difference
- build culture as a form of resilience and strength that promotes healthy cultural norms and recognises differences and diversity.
I encourage Aboriginal and Torres Strait Islander peoples to use the Declaration to assert your rights to self-determination, to participation, to be free from discrimination and to protect and maintain your culture. I also encourage you to ensure that these fundamental principles underpin your own internal governance structures and ways of doing business; particularly in negotiating your inherent rights to your lands, territories and resources, and establishing native title or land rights organisations to manage those rights and interests secured through a determination, and the distribution of benefits secured through agreements. Affirming these principles as normative standards within your families and communities will help to confront issues that could result in lateral violence and effectively address them when they arise.
Finally, I encourage all governments to assist Aboriginal and Torres Strait Islander communities deal with lateral violence by ensuring that all legislation, policy and programs developed for communities are developed and implemented in accordance with the Declaration.
[1] J Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’, in C Charters and R Stavenhagen (Eds), Making the Declaration Work (2009) 184, p 191.
[2] N Pillay, United Nations High Commissioner for Human Rights, Opening Remarks, Statement provided to the fourth session of the Expert Mechanism on the Rights of Indigenous Peoples, Geneva, 11 July 2011, p 2. At http://www.docip.org/Online-Documentation.32.0.html (viewed 16 September 2011).
[3] Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 5. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, articles 7, 9. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 23 September 2011); Convention on the Rights of the Child, 1989, articles 2, 19. At http://www2.ohchr.org/english/law/crc.htm (viewed 23 September 2011).
[4] For example see United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 7, 22(2). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 23 September 2011); Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 5. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, article 7. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 23 September 2011); Convention on the Rights of the Child, 1989, article 19. At http://www2.ohchr.org/english/law/crc.htm (viewed 23 September 2011); Committee on the Elimination of Discrimination Against Women, General Recommendation 12: Violence against women, UN Doc A/44/38 at 76 (1990). At http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom12 (viewed 23 September 2011); Committee on the Rights of the Child, General Comment 13: The right of the child to freedom from all forms of violence, UN Doc CRC/C/GC/13 (2011). At http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.13_en.doc (viewed 23 September 2011).
[5] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 24. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 23 September 2011), Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 25. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011), International Covenant on Economic, Social and Cultural Rights, 1966, article 12. At http://www2.ohchr.org/english/law/cescr.htm (viewed 23 September 2011); Convention on the Rights of the Child, 1989, article 24. At http://www2.ohchr.org/english/law/crc.htm (viewed 23 September 2011).
[6] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 5, 13(2), 18, 19, 20(1), 23, 27, 30(2), 32, 36, 38. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 20 September 2011); International Covenant on Civil and Political Rights, 1966, article 25. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 23 September 2011); Human Rights Committee, General Comment 25: The Right to Participate in Public Affairs, Voting and the Right of Equal Access to Public Service (art 25), UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 5. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d0b7f023e8d6d9898025651e004bc0eb?Opendocument (viewed 23 September 2011).
[7] Chapter 2 of this Report examines how it is not uncommon for Aboriginal and Torres Strait Islander people to withdraw from participating in their native title claim to avoid the conflict, grief and trauma it causes.
[8] Working Group on Indigenous Populations, Standard-setting: Legal commentary on the concept of free, prior and informed consent. Expanded working paper submitted by Mrs. Antoanella-Iulia Motoc and the Tebtebba Foundation offering guidelines to govern the practice of Implementation of the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources, UN Doc E/CN.4/Sub.2/AC.4/2005/WP.1 (2005), para 56.
[9] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 11-13. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, article 27. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 23 September 2011); International Covenant on Economic, Social and Cultural Rights, 1966, article 15. At http://www2.ohchr.org/english/law/cescr.htm (viewed 23 September 2011).
[10] International Covenant on Economic, Social and Cultural Rights, 1966, article 1. At: http://www2.ohchr.org/english/law/cescr.htm (viewed 23 September 2011); United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 3, 4, 20, 23, 31(1). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 9 December 2010).
[11] International Covenant on Civil and Political Rights, 1966, article 19. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 23 September 2011); Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 19. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011).
[12] International Covenant on Civil and Political Rights, 1966, articles 6, 7, 9. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 23 September 2011); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, articles 1, 2. At http://www2.ohchr.org/english/law/cat.htm (viewed 20 September 2011).
[13] See C Tatz, Aboriginal Suicide is Different: Aboriginal youth suicide in New South Wales, the Australian Capital Territory and New Zealand: towards a model of explanation and alleviation, Criminology Research Grants (1999). At http://www.criminologyresearchcouncil.gov.au/reports/tatz/ (viewed 23 September 2011).
[14] See M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, The practical power of human rights (Speech delivered at Queensland University of Technology Faculty of Law Public Lecture Series, Brisbane, 19 May 2010. At http://www.humanrights.gov.au/about/media/speeches/social_justice/2010/20100519_practical_power.html (viewed 1 September 2011).
[15] United Nations Development Group, The Human Rights Based Approach to Development Cooperation Towards a Common Understanding among UN Agencies (2003). At http://www.undg.org/index.cfm?P=221 (viewed 8 September 2011).
[16] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 6. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 23 September 2011).
[17] S J Anaya, International Human Rights and Indigenous Peoples (2009), p 63.
[18] S J Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’ in C Charters and R Stavenhagen (Eds), Making the Declaration Work (2009) 184, pp 186-196.
[19] S J Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’ in C Charters and R Stavenhagen (Eds), Making the Declaration Work (2009) 184, p 196.
[20] For a discussion on human needs theory, see Chapter 2 of the Social Justice Report 2011.
[21] UNESCO, ‘Conclusions and recommendations of the conference’ in van Walt van Praag (ed) The implementation of the right to self-determination as a contribution to conflict prevention, 1999, p 19.
[22] 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.
[23] M Wehmeyer, Self-determination and the education of students with disabilities, Educational Resources Information Center Clearinghouse on Disabilities and Gifted Education Digest No E632 (2002). At http://www.hoagiesgifted.org/eric/e632.html (viewed 8 September 2011).
[24] J Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples, 3 April 2009, at http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 28 September 2011).
[25] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008), p 4. At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/chapter0.html (viewed 19 September 2011).
[26] Rubibi Community v State of Western Australia (No 7) [2006] FCA 459, [166], as cited in T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008). At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/chapter0.html (viewed 19 September 2011).
[27] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 2. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 16 September 2011).
[28] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 33. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 16 September 2011).
[29] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 32. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 16 September 2011).
[30] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 3. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 16 September 2011).
[31] Human Rights Council, Progress report on the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, para 34. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).
[32] D Smith, J Hunt, Do They Get It? Indigenous Governance: The Research Evidence and Possibilities for a Policy Dialogue with Australian Governments (Presentation delivered at the Inaugural National Indigenous Policy and Dialogue Conference, University of New South Wales, Sydney, 18 November 2010). At http://nipdc.arts.unsw.edu.au/assets/Powerpoints/Smith_Hunt.pdf (viewed 17 September 2011).
[33] T Bauman, Final Report of the Indigenous Facilitation and Mediation Project July 2003-June 2006: research findings, recommendations and implementation (2006), Report No. 6, Australian Institute of Aboriginal and Torres Strait Islander Studies, p 13. At http://www.aiatsis.gov.au/ntru/docs/researchthemes/negmedfac/ifamp/IfampReport.pdf (viewed 9 September 2011).
[34] T Bauman, Final Report of the Indigenous Facilitation and Mediation Project July 2003-June 2006: research findings, recommendations and implementation (2006), Report No. 6, Australian Institute of Aboriginal and Torres Strait Islander Studies, p 13. At http://www.aiatsis.gov.au/ntru/docs/researchthemes/negmedfac/ifamp/IfampReport.pdf (viewed 9 September 2011).
[35] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), apps 3, 4. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 15 September 2011).
[36] Extract from United Nations Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17−19 January 2005), UN Doc E/C.19/2005/3 (2005), paras 46–49. At http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html (viewed 19 November 2010).
[37] For a detailed discussion of these elements, see M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 October 2011).
[38] C Hill, S Lillywhite and M Simon, Guide to Free, Prior and Informed Consent, Oxfam Australia (2010), p 9. At http://www.oxfam.org.au/resources/filestore/originals/OAUs-GuideToFreePriorInformedConsent-0610.pdf (viewed 11 October 2011).
[39] See Australian Human Rights Commission, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (2010), p 25. At https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/native-title-report-2011 (viewed 23 September 2011); Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, UN Doc E/C.19/2005/3 (2005), paras 46-48.
[40] Human Rights Council, Progress report on the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, para 31. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).
[41] Human Rights Council, Progress report on the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, part III. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).
[42] Human Rights Council, Progress report on the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, part IV. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).
[43] Human Rights Council, Progress report on the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, para 3. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).
[44] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/chapter3.html#Heading35 (viewed 15 September 2011).
[45] K Deer, ‘Reflections on the Development, Adoption, and Implementation of the UN Declaration on the Rights of Indigenous Peoples’ in J Hartley, P Joffe, J Preston (eds), Realising the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope and Action (2010), 18, p 27.
[46] Commonwealth of Australia, Mabo – The High Court Decision on Native Title: Discussion Paper, (1993), p 102.
[47] T Bauman and R Williams, The Business of Process Research Issues in Managing Indigenous
Decision-Making and Disputes in Land, Research Discussion Paper No 13, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, p 12. At http://www.aiatsis.gov.au/research/docs/dp/DP13.pdf (viewed 3 October 2011).
[48] Australian Human Rights Commission, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (2010), p 25. At https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/native-title-report-2011 (viewed 15 September 2011).
[49] Australian Human Rights Commission, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (2010), p 25. At https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/native-title-report-2011 (viewed 15 September 2011).
[50] Goldfields Land and Sea Council, Mining Policy: Our Land is Our Future (2008). At http://www.glc.com.au/ (viewed 15 September 2011).
[51] Economic and Social Council, Permanent Forum on Indigenous Issues Report on the tenth session (16–27 May 2011), UN Doc E/2011/43-E/C.19/2011/14 (2011), para 36. At http://www.un.org/esa/socdev/unpfii/en/session_tenth.html (viewed 11 October 2011).
[52] 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), paras 43−44. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2011).
[53] 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 65. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2011).
[54] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 15 September 2011).
[55] Australian Human Rights Commission, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (2010), p 25. At http://www.humanrights.gov.au/declaration_indigenous/declaration_full.html (viewed 23 September 2011).
[56] A Larson, M Gilles, PJ Howard, J Coffin, 'It's enough to make you sick: the impact of racism on the health of Aboriginal Australians' (2007) 31(4) Australian and New Zealand Journal of Public Health 322, pp 322−329.
[57] VicHealth, More than tolerance: Embracing diversity for health: Discrimination affecting migrant and refugee communities in Victoria, its health consequences, community attitudes and solutions - A summary report (2007) Victorian Health Promotion Foundation. At http://www.vichealth.vic.gov.au/~/media/ResourceCentre/PublicationsandResources/Mental%20health/MoreThanTolerance/DCASv2%204%20%20FINAL%20060907.ashx (viewed 19 October 2011).
[58] Commonwealth, Parliamentary Debates, Senate, 27 November 1997, pp 9635-9753 (Senator Forshaw, Senator Faulkner, Senator Herron, Senator Evans). At http://www.aph.gov.au/hansard/senate/dailys/ds271197.pdf (viewed 7 October 2011).
[59] See for example AAP, '"No guarantees" in WA native title claim', Sydney Morning Herald, 31 October 2006. At http://www.smh.com.au/news/National/No-guarantees-in-WA-native-title-claim/2006/10/31/1162278143622.html (viewed 7 October 2011).
[60] Section 9(1) prohibits what is generally known as ‘direct’ race discrimination.
[61] For example see the Protection Acts, AIATSIS, To Remove and Protect, www1.aiatsis.gov.au/exhibitions/removeprotect/index.html (viewed19 September 2011).
[62] Committee on the Elimination of Racial Discrimination, General Recommendation 23: Rights of indigenous peoples, UN Doc A/52/18 (Annex V) (1997). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/73984290dfea022b802565160056fe1c?Opendocument (viewed 11 October 2011).
[63] Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/15–17 (2010), para 18. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011).
[64] Culture can be ‘thought of as a complex and diverse system of shared and interrelated knowledge, practices and signifiers of a society, providing structure and significance to groups within that society...Shared knowledge includes collectively held norms, values, attitudes, beliefs, and the like, while cultural practices are evidenced in the language, law, and kin relationship practices of a society...Cultural maintenance, transmission, and transformation are the result of ongoing interaction of people engaged in shared activities in concrete situations. Put simply, culture is socially constructed and maintained’. See M J Halloran, Cultural maintenance and trauma in Indigenous Australia, (Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Perth, Western Australia, 2-4 July 2004), p 2. At http://www.latrobe.edu.au/psy/aw/Halloran-Murdoch_law_journal.pdf (viewed 25 September 2011).
[65] The Secretariat of the National Aboriginal and Islander Child Care, National Aboriginal and Islander Children’s Day, www.snaicc.asn.au/news-events/dsp-default.cfm?loadref=62 (viewed 25 September 2011).
[66] International Law Association, The Hague Conference (2010) Rights of Indigenous Peoples, Interim Report, p 11. Internal references removed.
[67] M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, The End in the Beginning: Re(de)fining Aboriginality (Speech delivered at Wentworth Lecture, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994). At http://www.humanrights.gov.au/about/media/speeches/social_justice/end_in_the_beginning.html (viewed 8 September 2011).
[68] M J Halloran, Cultural maintenance and trauma in Indigenous Australia, (Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Perth, Western Australia, 2-4 July 2004), pp 4-5. At http://www.latrobe.edu.au/psy/aw/Halloran-Murdoch_law_journal.pdf (viewed 25 September 2011).
[69] United Nations Permanent Forum on Indigenous Issues, Indigenous Peoples: Development with Culture and Identity Articles 3 and 32 of the UN Declaration on the Rights of Indigenous Peoples, Fact Sheet Backgrounder. At http://www.un.org/esa/socdev/unpfii/documents/Development%20with%20Culture%20and%20Identity.pdf (25 September 2011).
[70] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 10. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 16 September 2011).
[71] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 43. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 16 September 2011).
