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

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Expert
Mechanism on the rights of Indigenous peoples

12 – 16 July 2010, Geneva

Statement by the

Aboriginal and Torres Strait
Islander Social Justice Commissioner

Mick Gooda

Australian
Human Rights Commission

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Item 3: The right to participate in decision making

Thank you Mister Chair

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RECOMMENDATION

The Commission recommends that:

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

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

Thank you.

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^[1] United Nations Declaration
on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67
(2007), preambular para 18.

^[2] My
predecessors have examined the right to self-determination, its use in Australia
and what self-determination looks like to indigenous peoples in the Social
Justice Report 2002 (Chapter 2) and the Social Justice Report 2008 (pp 55-58).

^[3] UNESCO,
‘Conclusions and recommendations of the conference’ in M Walt van
Praag (ed) The implementation of the right to self-determination as a
contribution to conflict prevention (1999)
p19.

^[4] E Daes 'Striving for
self-determination for Indigenous peoples' in Y Kly and D Kly (eds), In
pursuit of the right to self-determination (2000), p
58.

^[5] Australian Human Rights
Commission, Submission to the Senate Community Affairs Committee: Inquiry
into the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009
and other Bills (2010). At http://www.hreoc.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 6 July 2010).

^[6] Northern
Territory Emergency Response Review Board, Report of the Northern Territory
Review Board, Attorney-General’s Department, Canberra (2008), pp
10-11. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 28 April 2010).

^[7] T Calma
(Aboriginal and Torres Strait Islander Social Justice Commissioner), Essentials for Social Justice: The Future (Speech delivered at the
University of South Australia, Adelaide,12 November 2008). At http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20081112_future.html (viewed 1 November 2009).