Inquiry into the Native Title Amendment Bill (No 2) 2009 (Cth)
Australian Human Rights Commission
Submission by the Aboriginal and Torres Strait Islander Social Justice
Commissioner to the Senate Standing Committee on Legal and Constitutional
27 November 2009 (extension granted)
Table of Contents
The Australian Human Rights Commission (the Commission) welcomes the
opportunity to make this submission to the Senate Standing Committee on Legal
and Constitutional Affairs (the Committee) in its Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth) (the Bill).
The Bill proposes to insert a new subdivision (subdivision JA) into the
future acts regime of the Native Title Act 1993 (Cth) (Native Title Act).
It is proposed that subdivision JA would provide ‘a process to assist the
timely construction of public housing and a limited class of public
facilities ... for Aboriginal people and Torres Strait Islanders in communities
on Indigenous held
Everyone has the right to an adequate standard of living, including adequate
housing. The Commission is acutely
aware of the chronic housing shortages in Aboriginal and Torres Strait Islander
communities and of the impact this situation has on the health and wellbeing of
Aboriginal and Torres Strait Islander
The Commission recognises that the Bill is aimed at alleviating this
critical need and at providing other, much-needed public facilities.
However, the Commission is concerned about the potential impact of the
proposed future act process on the rights of traditional owners, and is
particularly concerned that the Bill has been introduced without adequate
consultation. The Commission considers that the Government should focus on
agreement-making rather than pursuing future act processes.
Recommendation 1: That the Australian Government consult and cooperate
in good faith with Aboriginal and Torres Strait Islander peoples through their
own representative institutions in order to obtain their free, prior and
informed consent before adopting and implementing legislative or administrative
measures that may affect them.
Recommendation 2: That the Australian Government explore options for
facilitating agreement-making and improving Indigenous Land Use Agreement
processes in preference to introducing a new future act regime.
3 The Government’s
The Commission is concerned that this Bill has been introduced into
Parliament without adequate consultation with, and the free, prior and informed
consent of, Aboriginal and Torres Strait Islander peoples. This is inconsistent
with Australia’s international human rights obligations.
On 3 April 2009, the Australian Government endorsed the United Nations
Declaration on the Rights of Indigenous Peoples (the
Declaration). The Declaration
affirms the right of indigenous peoples to
article 19 of the Declaration provides:
States shall consult and
cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free, prior and informed
consent before adopting and implementing legislative or administrative measures
that may affect them.
Similarly, the Committee on the Elimination of Racial Discrimination has, in
its General Recommendation No 23, called upon parties to the International
Convention on the Elimination of All Forms of Racial
Discrimination to ensure that
that no decisions directly relating to the rights and interests of indigenous
peoples are taken without their informed
Key elements of the standard of free, prior and informed consent are set out
in appendix 1 of this submission. These elements include ensuring that
sufficient time, funding and information is available to enable indigenous
peoples to effectively participate in a consent process. Further principles for
effective consultation and engagement are contained in appendix 2.
The Attorney-General has stated that he is ‘determined to ensure that
the way we consult, and the relationships we forge along the way, distinguish
this Government’s approach to native
title’. The Commission
acknowledges that the Government sought to consult with Aboriginal and Torres
Strait Islander peoples regarding the proposed amendments. The Attorney
General’s Department and the Department of Families, Housing, Community
Services and Indigenous Affairs released a discussion paper on the proposed
amendments on 13 August 2009. Submissions in response to the discussion paper closed 4 September 2009. Public
information sessions to discuss the proposal were held in capital cities and
regional centres in late August – early September 2009. The Bill was
introduced into Parliament on 21 October 2009.
However, Aboriginal and Torres Strait Islander peoples were not afforded the
opportunity to fully participate in decision-making processes regarding these
amendments. The timeframe for consultations was brief. There was a lack of
consultation with communities that are likely to be directly affected by the
proposed amendments. Further, the resource constraints faced by Native Title
Representative Bodies and Prescribed Bodies Corporate present a significant
barrier to participating in such consultations.
The deficiencies in the consultation process are particularly concerning in
light of the potential far-reaching impacts of these amendments upon the rights
of traditional owners. For example, while the Bill provides for the application
of the non-extinguishment principle, the long-term nature of the acts
contemplated by the Bill suggests that it may be generations before the native
title rights and interests will again have full effect.
In addition, traditional owners may not be the beneficiaries of the public
housing or other public facilities that are built pursuant to the new future act
regime. For example, traditional owners may not live on the land on which the
housing is built.
It is imperative that governments engage in genuine consultation with
Aboriginal and Torres Strait Islander peoples in order to obtain their free,
prior and informed consent to the introduction of such measures.
Given the fundamental importance of ensuring that the rights of Indigenous
peoples are protected in the implementation of legislative or administrative
measures, it is also disappointing that the Government’s discussion paper
did not raise for consideration the implications of the proposed amendments in
terms of their potentially racially discriminatory effect. The Commission
encourages the Government to ensure that any potentially discriminatory impacts
of the Bill are fully explored and that Australia’s international human
rights obligations are explicitly made a key consideration in the development of
any future amendments.
4 Governments should
The Attorney-General has stated that the ‘Government wants to build
new partnerships with the Indigenous community by reaching lasting and equitable
The Attorney-General has also emphasised the potential for native title to
‘develop positive and enduring relationships between Indigenous and
non-Indigenous Australians’ and to be ‘a vehicle for the
reconciliation we all want to
The Commission welcomes the Government’s commitment to overcoming
disadvantage in Aboriginal and Torres Strait Islander communities, including
through addressing chronic housing shortages. However, the Commission considers
that these objectives can best be pursued through agreement-making and by
working in partnership with Aboriginal and Torres Strait Islander peoples,
rather than by diminishing the rights of traditional owners through a new future
(a) Advantages of
The Government states in the Discussion Paper that
recognises that strong relationships between governments,
communities and service providers increase the capacity to achieve outcomes, and
is determined to make engagement with Indigenous communities central to the
design and delivery of programs and services. This includes ensuring that native
title holders and claimants are involved in considering how, where and what
housing and community infrastructure facilities are built in remote Indigenous
In the Commission’s view, the best way to create ‘strong
relationships’ and to ensure that traditional owners are ‘central to
the design and delivery of programs and services’ is through
The need for a new future act process has not been sufficiently
demonstrated. Governments do not need a new future acts process to build houses
or other public infrastructure on native title lands. Indigenous Land Use
Agreements (ILUAs) are already available to parties to negotiate the building of
houses, and other essential services, for Indigenous communities.
An ILUA can provide certainty for all parties, including certainty around
future developments and the long term relationship between the parties. ILUAs
ensure that there is an ongoing and predictable relationship between the
In addition, an ILUA can be holistic, covering a range of issues. It can
allow for issues concerning compensation to be dealt with up front, avoiding the
need for protracted legal proceedings. An ILUA can also be tailored to the
circumstances of the specific community, including traditional laws and customs.
By its very nature, an ILUA requires consent and agreement between the parties. This is consistent with the standard of free, prior and
informed consent and the rights of indigenous peoples to:
determine and develop priorities and strategies for the development or use
of their lands or territories and other
determine and develop priorities and strategies for exercising their right
to development. In particular, indigenous peoples have the right to be actively
involved in developing and determining health, housing and other economic and
social programs affecting them and, as far as possible, to administer such
programs through their own
(b) The proposed future
act process could detract from relationship-building and agreement-making
The new future act process proposed by the Bill has the potential to detract
from the Government’s goal of building new partnerships and stronger
relationships with Aboriginal and Torres Strait Islander peoples.
Rather than promote agreement-making and the standard of free, prior and
informed consent, the Bill
places the onus upon registered native title claimants or registered native
title bodies corporate to request consultation – this is a particular
concern given the resourcing problems faced by such parties
restricts the right to request consultation about the doing of the act to
registered native title claimants or registered bodies corporate
establishes inflexible timelines for ‘consultation
periods’, which may not be
sufficient to allow genuine consultation to take place
requires the ‘action body’ to provide a written consultation
report to the Minister, but does not require the Minister to make the report
public or include any other guarantees of transparency in the consultation
The Bill does not exclude the ILUA process but does nothing to encourage its
use. There are no safeguards within the Bill to ensure that the proposed future
act process will be used only as a measure of last resort. At the very least,
governments should be required to negotiate in good faith in an attempt to reach
an ILUA before the future act processes are available to them.
The availability of a ‘fast track’ future act process may in
fact discourage governments from seeking to negotiate and enter into agreements
with Aboriginal and Torres Strait Islander communities regarding the provision
of public housing. The new process may even jeopardise ILUA negotiations
currently under way, and reduce goodwill among the parties to negotiate broader
(c) The proposed future
act process could lead to greater disempowerment
- The Commission is also concerned about the potential of the Bill to
undermine traditional law, governance and land ownership structures. If
decisions regarding development and public housing are not controlled by the
community, this can lead to greater disempowerment. It can also contribute to
divisions within communities. For example, the Bill does not acknowledge that
there may be distinctions between the traditional owners and the community that
live on the land and receive the benefit of public housing.
(d) Governments should
focus on improving agreement-making processes
If the Government is concerned that delays in agreement-making processes
have impeded the construction of housing and other public facilities, the
Commission recommends that the Government should explore reforms to improve the
efficiency of agreement-making processes instead of introducing a new future act
Such reforms could include requiring governments to provide tenure
information early in negotiating processes and to adequately fund the native
title parties to participate in negotiations. Governments should also explore
the potential to work with representative bodies to develop template ILUAs,
possibly targeted specifically at the development of public housing and other
infrastructure, to facilitate agreement-making.
It is by no means clear that options for improving agreement-making
processes have been exhausted such that the proposed future act process is
Appendix 1: Key elements
of free, prior and informed
Free – should imply no coercion, intimidation or
Prior – should imply consent has been sought sufficiently
in advance of any authorisation or commencement of activities and that respect
is shown for time requirements of indigenous consultation / consensus
Informed – should imply that information is provided that
covers (at least) the following aspects:
a. The nature, size, pace, reversibility and scope of any proposed project or
b. The reason(s) or purpose of the project and / or activity
c. The duration of the above
d. The locality of areas that will be affected
e. A preliminary
assessment of the likely economic, social, cultural and environmental impact,
including potential risks and fair and equitable benefit- sharing in a context
that respects the precautionary principle
f. Personnel likely to be involved in the execution of the proposed project
(including indigenous peoples, private sector staff, research institutions,
government employees and others)
g. Procedures that the project may entail.
Consent - Consultation and participation are crucial components of a consent
process. Consultation should be undertaken in good faith. The parties should
establish a dialogue allowing them to find appropriate solutions in an
atmosphere of mutual respect in good faith, and full and equitable
participation. Consultation requires time and an effective system for
communicating among interest holders. Indigenous peoples should be able to
participate through their own freely chosen representatives and customary or
The inclusion of a gender perspective and the participation of Indigenous
women are essential, as is the participation of children and youth as
appropriate. This process may include the option of withholding consent. Consent
to any agreement should be interpreted as Indigenous peoples have reasonably
Free, prior and informed consent (FPIC) should be sought sufficiently in
advance of commencement or authorisation of activities, taking into account
indigenous peoples’ own decision-making processes, in phases of
assessment, planning, implementation, monitoring, evaluation and closure of a
Indigenous peoples should specify which representative institutions are
entitled to express consent on behalf of the affected peoples or communities. In
FPIC processes, indigenous peoples, UN organisations and governments should
ensure a gender balance and take into account the views of children and youth as
Information should be accurate and in a form that is accessible and
understandable, including in a language that the indigenous peoples will fully
understand. The format in which information is distributed should take into
account the oral traditions of indigenous peoples and their languages.
5. PROCEDURE AND MECHANISMS
Mechanisms and procedures should be established to verify FPIC as described
above, including mechanisms of oversight and redress, such as the creation of
As a core principle of FPIC, all sides of an FPIC process must have equal
opportunity to debate any proposed agreement / development / project.
‘Equal opportunity’ should be understood to mean equal access to
financial, human and material resources in order for communities to fully and
meaningfully debate in indigenous language(s) as appropriate, or through any
other agreed means, on any agreement or project that will have or may have an
impact, whether positive or negative, on their development as distinct peoples,
or an impact on their rights to their territories and / or natural resources.
FPIC could be strengthened by establishing procedures to challenge and
independently review these processes. Determination that the elements of FPIC
have not been respected may lead to the revocation of consent given.
Appendix 2: Principles
for effective consultation and
for engaging with Indigenous communities
human rights-based approach to development
All policies and programs relating to indigenous peoples and communities
must be based on the principles of non-discrimination and equality, which
recognise the cultural distinctiveness and diversity of indigenous peoples.
Governments should consider the introduction of constitutional and or
legislative provisions recognising indigenous rights.
Indigenous peoples have the right to full and effective participation in
decisions which directly or indirectly affect their lives.
Such participation shall be based on the principle of free, prior and
informed consent, which includes governments and the private sector providing
information that is accurate, accessible, and in a language the indigenous
peoples can understand.
Mechanisms should exist for parties to resolve disputes, including access to
independent systems of arbitration and conflict resolution.
for representation and engagement
Governments and the private sector should establish transparent and
accountable frameworks for engagement, consultation and negotiation with
indigenous peoples and communities.
Indigenous peoples and communities have the right to choose their
representatives and the right to specify the decision-making structures through
which they engage with other sectors of society.
negotiation, implementation, monitoring and evaluation
Frameworks for engagement should allow for the full and effective
participation of indigenous peoples in the design, negotiation, implementation,
monitoring, evaluation and assessment of outcomes.
Indigenous peoples and communities should be invited to participate in
identifying and prioritising objectives, as well as in establishing targets and
benchmarks (in the short and long term).
There should be accurate and appropriate reporting by governments on
progress in addressing agreed outcomes, with adequate data collection and
In engaging with indigenous communities, governments and the private sector
should adopt a long-term approach to planning and funding that focuses on
achieving sustainable outcomes and which is responsive to the human rights, the
changing needs and the aspirations of indigenous communities.
There is a need for governments, the private sector, civil society and
international organisations and aid agencies to support efforts to build the
capacity of indigenous communities, including in the area of human rights, so
that they may participate equally and meaningfully in the planning, design,
negotiation, implementation, monitoring and evaluation of policies, programs and
projects that affect them.
Similarly, there is a need to build the capacity of government officials,
the private sector and other non-governmental actors, which includes increasing
their knowledge of indigenous peoples and awareness of the human rights-based
approach to development so that they are able to effectively engage with
This should include campaigns to recruit and then support indigenous people
into government, private and non-government sector employment, as well as
involve the training in capacity building and cultural awareness for civil
There is a need for human rights education on a systemic basis and at all
levels of society.
The consultation process should be proportionate to the potential
impacts of the proposed measure.
Enter consultations in good faith and with a view towards establishing or
improving long term working relationships with Aboriginal
Recognise the diversity of Aboriginal and Torres Strait Islander
communities. Be sure not to generalise from understandings gained from one
community by applying assumptions about these findings to another
Be mindful that well coordinated consultation processes are time and resource intensive.
Do not assume that communities are familiar with your agency or that they
understand your mandate or business.
Be aware that there may be misinformation and / or a lack of
understanding of the most basic issues related to your consultation topic.
Make every effort to understand, acknowledge and respond sensitively to the alienation that community members may feel from government and government
Involve Aboriginal and Torres Strait Islander people at the outset.
Community leaders (for example traditional owners and traditional elders) may be
willing to provide input into planning the consultation process. They will also
be able to provide you with information regarding community norms and
Respectfully acknowledge the involvement that participants have had
historically in addressing the issue that is being discussed.
Identify the best ways to promote community consultation sessions. This may involve advertisements in local newspapers, written notices on
community notice boards or announcements on community radio.
Ensure that the conduct of consultations allow affected communities to
have control over timeframes. It is important to respect a community’s
right to choose the timing and location of consultations. It is also important
to adopt a flexible approach to the consultation process. Be mindful that
cultural events or religious priorities and family and work responsibilities may
impact on the availability of community members.
Ensure that all engagement is structured to include all relevant
Aboriginal and Torres Strait Islander stakeholders, interests and
organisations. Where proposals will affect Indigenous land, contacting:
traditional land owners, the Prescribed Body Corporate (PBC), local branches of
Aboriginal Land Councils and the regional Native Title Representative Body
(NTRB) is vital.
Ensure that the consultations provide for a mechanism to obtain agreement
with communities over the process and desired outcome of any proposed measure. Communities are acutely aware of the issues and possible solutions relating
to their particular circumstances and will be pivotal to the success of any
Have a prior understanding of and respect for local dispute resolution
and decision-making processes. Where difficulties arise in relation to
reaching agreement between various communities or groups during consultations,
do not get involved. However, you may have to request assistance from, or
resource, an independent person or body to facilitate resolution of the
Consultations must be based on mutually agreed processes and utilise local knowledge in order to achieve sustainable outcomes in Aboriginal
and Torres Strait Islander communities. Provide people with a clear idea
of how their input will be included in decision-making processes.
Consider how you will structure your sessions to answer your consultation
questions and maximise the quality of input from participants.
Be clear about likely barriers to stakeholder participation. You
should also consider how you will interact with target groups including young
people, older people, people with disabilities, mothers etc.
Keep consultations focused, interactive and deliberative. Creating an
environment where people are comfortable with sharing their views may improve
the quality of attention and information received from participants.
Where you need to consult with large numbers of people, providing for
small group engagement is preferable to ensure that all people have an
opportunity to give and receive information. In some cases, communities or
groups may demonstrate preferences for separate meetings based on age, gender or
Where possible, ensure that engagement is structured in a way to provide
an incremental skills building process for participants. For example,
community members could develop a more comprehensive understanding of community
Use various participatory methods throughout the consultation process
(oral, written, electronic and aided by translators) to maximise
It is important that government officers check for participant
understanding periodically during the course of any consultation session.
If necessary, consultation sessions should be small and targeted around specific stakeholder groups to protect privacy and confidentiality.
The consultation should aim for a gender balance in relation to
overall participant representation.
Reach agreement with communities about how feedback will be provided after the consultation phase is concluded.
Identify the best ways to keep communities informed about
developments regarding the issue / proposal.
standard of information and transparency
Be clear about what outcome(s) the proposal seeks to achieve and what issue(s) the proposal seeks to address.
Be clear about the potential and real risks, costs and benefits of the proposed measure.
Be clear about what aspects of the proposed measure Aboriginal and
Torres Strait Islander peoples will be involved in and if there are specific
areas of concern.
Consultations should be transparent and have clear parameters. To
avoid creating unrealistic community expectations, any aspects of a particular
proposal that has already been decided or finalised should be clearly identified
and declared. For example, if a decision has been made to continue with a
particular activity, the government should clearly explain that they are seeking
input on the design and implementation of the policy, rather than the merits of
the policy itself.
Notice of proposed measure(s) must be given sufficiently in advance of
its authorisation in order to give time for the community to reach informed
consent or to arrive at considered points of difference. Adequate resourcing
should be provided to communities and specific stakeholder groups to support
them in their discussions and decision making, prior to a formal consultation
process. It is important to be respectful of Aboriginal and Torres Strait
Islander peoples’ timeframes to ensure inclusiveness around issues.
Timeframes may be subject to cultural ceremonies and law, climatic and
Government officers should provide full information regarding the
parameters of the consultation, including what options are being considered as
part of the consultation. It is important that you have clear parameters
around your consultation process, for example measuring the benefit and
effectiveness of a specific measure. However your consultation process should be
sufficiently open-ended so that community members have an opportunity to discuss
concerns or propose alternative methods that, in their view, may achieve the
same or enhanced outcomes. These views should be formally noted. Participants
should have an opportunity to fully communicate their wishes and aspirations as
they relate to the future of their communities.
monitoring and evaluation
Provide feedback to communities as agreed at the front end of the
process, including how decision-making was influenced by the consultation
Explain to community members the likely timeframes for the first
phase of implementation.
Identify how you will accurately collect and record data during consultations.
Consider what specific, time bound and verifiable benchmarks and
indicators you will use to measure progress. Affected communities should
have input into developing success measures.
Notify communities in a timely manner when outcomes are
Consider what measures will be used to evaluate the quality and effectiveness of the consultation process.
To ensure that there is transparency around the consultation process
and that consultation findings correspond to decision making, government
agencies may like to appoint an independent observer or request the assistance
of the Commonwealth Ombudsman.
Explain what, if any, options community members have to call for a review
Government agencies should publish their consultation protocols. This
information should be made available in plain English formats and in summary
form. Where consultation was limited in its scope, explanation should be
provided as to why a full process was inappropriate / not feasible.
Regular monitoring should be undertaken to ensure that actions taken
for the purposes of the legislation are aligned with its core objectives.
Government agencies should evaluate and continuously improve their consultation processes.
Be approachable, contactable and meet the commitments you make to individuals and organisations throughout the consultation
Remember that consent is NOT valid if it is obtained through coercion or manipulation. Consent cannot be considered valid unless affected
communities have been presented with ALL of the information relevant to a
 Explanatory Memorandum, Native
Title Amendment Bill (No 2) 2009 (Cth), 2.
International Covenant on
Economic, Social and Cultural Rights, 1966, art 11(1). At http://www2.ohchr.org/english/law/cescr.htm (viewed 19 November 2009) (ICESCR). See also United Nations Declaration on
the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc
A/61/L.67 (2007), art 21. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 November 2009) (Declaration on the Rights of Indigenous
 For information on
the Close the Gap Campaign for Aboriginal and Torres Strait Islander Health
Equality, see http://www.humanrights.gov.au/social_justice/health/index.html.
The Aboriginal and Torres Strait Islander Social Justice Commissioner is the
Chair of the Close the Gap Steering Committee.
 GA Resolution 61/295 (Annex),
UN Doc A/61/L.67 (2007), at http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 November 2009); J Macklin (Minister for Families, Housing, Community
Services and Indigenous Affairs), Statement on the United Nations Declaration
on the Rights of Indigenous Peoples (Speech delivered at Parliament House,
Canberra, 3 April 2009), at http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/un_declaration_03apr09.htm (viewed 19 November 2009).
 Declaration on the Rights of Indigenous Peoples, above, art 3. See also International Covenant on Civil and Political Rights, 1966, art 1. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 19 November 2009); ICESCR, note 2, art
on the Elimination of All Forms of Racial Discrimination, 1965. At http://www2.ohchr.org/english/law/cerd.htm (viewed 19 November 2009).
 Committee on the Elimination of Racial Discrimination, General Recommendation
No 23: Indigenous Peoples, UN Doc A/52/18, annex V at 122 (1997), para 4. At http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument (viewed 19 November 2009).
McClelland (Attorney-General), Australian Institute of Aboriginal and Torres
Strait Islander Studies (Speech delivered at the 10th Annual
Native Title Conference, Melbourne, 5 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_5June2009-AustralianInstituteofAboriginalandTorresStraitIslanderStudies (viewed 16 November 2009).
 Attorney-General’s Department & Department of Families, Housing,
Community Services and Indigenous Affairs, Discussion Paper: Possible housing
and infrastructure native title amendments (2009).
 R McClelland
(Attorney-General), Native Title Consultative Forum (Speech delivered at
the Native Title Consultative Forum, Canberra, 4 December 2008), para 7. At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FourthQuarter_4December2008-NativeTitleConsultativeForum (viewed 16 November 2009).
 McClelland, Native Title Consultative Forum, above, para 45.
Department & Department of Families, Housing, Community Services and
Indigenous Affairs, note 9.
 Declaration on the Rights of Indigenous Peoples, note 4, art 32(1).
 Declaration on the Rights
of Indigenous Peoples, above, art 23.
 If no claimant or body
corporate requests to be consulted, the consultation period ends 2 months after
the specified notification day. If there is such a request, the consultation
period ends 4 months after the specified notification day. Native Title
Amendment Bill (No 2) 2009 (Cth), sch 1, proposed s 24JAA(19).
 United Nations 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. At http://www.humanrights.gov.au/social_justice/conference/engaging_communities/report_of_the_international_workshop_on_fpic.pdf (viewed 23 November 2009). See also United Nations Commission on Human Rights, Standard-Setting: Legal Commentary on the Concept of Free, Prior and Informed
Consent, UN Doc E/CN.4/Sub.2/AC.4/2005/WP.1 (2005). At http://www2.ohchr.org/english/issues/indigenous/docs/wgip23/WP1.doc (viewed 23 November 2009).
 The following guidelines are adapted from: Human Rights and Equal Opportunity
Commission and United Nations Permanent Forum on Indigenous Issues, Engaging
the Marginalised: Partnerships between indigenous peoples, governments and civil
society, 15 August 2005 (2005), at
(viewed 23 November 2009); Australian Human Rights Commission, Draft
guidelines for ensuring income management are compliant with the Racial
Discrimination Act (2009), at http://www.humanrights.gov.au/word/race_discrim/RDA_income_management2009_draft.doc (viewed 23 November 2009); Parshuram Tamang, An Overview of the Principle of
Free, Prior and Informed Consent and Indigenous Peoples in International and
Domestic Law and Practices, UN Doc PFII/2004/WS.2/8 (2005), at http://www.un.org/esa/socdev/unpfii/documents/workshop_FPIC_tamang.doc (viewed 23 November 2009); Australian Government, Best Practice Regulation
Handbook (2007), at http://www.finance.gov.au/obpr/docs/handbook.pdf (viewed 23 November 2009).