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Social Justice Report 2006: Chapter 4: International developments on the rights of indigenous peoples – Closing the ‘protection gap’

Social Justice Report 2006

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  • Chapter 4: International developments on the rights of
    indigenous peoples – Closing the ‘protection
    gap’

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    In recent years there have been significant developments at the international
    level that impact upon the recognition and protection of the human rights of
    indigenous peoples. Most notably, there have been: i) reforms to the machinery
    of the United Nations (UN) and the emphasis given to human rights within that
    system; ii) the making of global commitments to action, through the Millennium
    Development Goals (MDGs) and the Second International Decade of the
    World’s Indigenous People; and iii) the further elaboration of human
    rights standards as they apply to indigenous peoples. These developments address
    the dual needs of ensuring that UN processes are more accessible and better
    address the needs of indigenous peoples; and recognising that there are
    additional indigenous-specific protections that are required if the human rights
    of indigenous peoples are to be fully realised.

    Developments in both of these areas in recent years have begun to provide a
    solid platform for the protection of the human rights of indigenous peoples into
    the future, through international processes as well as within countries. This is
    despite there remaining significant challenges – such as the need to
    finalise the Declaration on the Rights of Indigenous Peoples.

    Much of the focus at the international level has now begun to address the
    need for implementation. There exists concern at the existence of a
    ‘protection gap’ between the rhetoric and commitments of governments
    relating to the human rights of Indigenous peoples and the activities of
    governments on the ground. This ‘protection gap’ exists due to
    limited consideration of the government’s human rights obligations in the
    settling of policy and delivery of programs as they affect indigenous
    Australians.

    Increasingly, developments at the international level have emphasised the
    need to close this ‘protection gap’ by activating the commitments of
    governments to human rights. There is a clear need to create a direct
    relationship between the commitments and obligations taken on by our government
    at the international level and the policies and programs on Indigenous issues
    within Australia.

    This chapter sets out those key developments that have occurred at the
    international level, particularly in the past three to five
    years.[1] It also considers the status
    of those critical issues that remain under consideration within the UN system
    and that will have significant implications for the recognition of indigenous
    rights into the future.

    Recent developments emphasise the importance of adopting a partnership
    approach that secures the effective participation of indigenous peoples.
    Accordingly, this chapter also considers what actions ought to be taken within
    Australia, by governments and by our Indigenous communities and organisations,
    to facilitate improved partnerships with Indigenous peoples and ultimately to
    address the ‘protection gap’ between international standards and
    commitments, and domestic processes.

    International developments on the rights of indigenous
    peoples

    The human rights of indigenous
    peoples[2] are firmly on the agenda of
    the United Nations. We are currently seeing the results of the advocacy of
    countless indigenous peoples at the United Nations (UN) level for more than 20
    years come to fruition.

    This is not to say that the acknowledgement sought by indigenous peoples has
    been met or that it will be fully met. Such acknowledgement hangs in the balance
    as the General Assembly of the UN continues to deliberate on the Declaration
    on the Rights of Indigenous Peoples
    until late 2007. It also depends on the
    implementation of the reform process to the UN generally, such as through the
    consolidation of mechanisms for participation by indigenous peoples into the new
    UN Human Rights Council.

    But despite this, there have been substantial gains in the recognition of
    indigenous rights and the importance attached to them throughout the UN system.
    There is also significant potential for improved protection of indigenous rights
    through the reforms to the UN framework and mechanisms that are currently
    underway.

    Recent developments can be categorised as follows:

    • reforms to the machinery of the United Nations (UN) and the emphasis given
      to human rights within that system;
    • the making of global commitments to action, through the Millennium
      Development Goals (MDGs) and the Second International Decade of the
      World’s Indigenous People; and
    • the further elaboration of human rights standards as they apply to
      indigenous peoples, particularly as it relates to securing the effective
      participation of indigenous peoples in decision-making processes as well as
      recognising the need to protect indigenous peoples’ collective rights.

    There remain challenges relating to these developments. Most
    notably:

    • ensuring indigenous perspectives in the human rights system of the United
      Nations into the future;
    • integrating indigenous perspectives into the MDG process;
    • implementing the objectives and Program of Action for the Second Decade for
      the Worlds Indigenous People; and
    • achieving final acceptance of the Declaration on the Rights of Indigenous
      Peoples by governments in a manner that maintains the integrity of the
      Declaration, and then ensuring that the Declaration is implemented both
      internationally and domestically.

    This part of the chapter reviews recent developments and reflects
    on the current challenges being faced at the international level in the ongoing
    task of securing recognition of the rights of indigenous peoples. It is intended
    to provide a tool for indigenous peoples to have a greater awareness of
    international issues and international processes, which can then be utilised
    within their communities.

    1) United Nations Reform and human rights

    Over the past two years the UN system has continued to implement a
    substantial program of reform.[3] This
    has largely resulted from the outcomes of the UN World Summit held in New York
    in September 2005. The reform process sets the broader framework within which to
    consider the level of protection that is provided for the human rights of
    indigenous peoples worldwide.

    • The ‘In larger freedom’ report and World
      Summit

    In early 2005, the then Secretary General of the UN, Kofi Annan,
    released a report outlining his vision for the United Nations into the future.
    Titled In larger freedom: towards development, security and human rights for
    all
    ,[4] the report took stock of
    progress towards achieving the outcomes of the UN Millennium Summit of 2000,
    including the Millennium Development
    Goals.[5] The report and its proposals
    for reform formed the basis of deliberations at the World Summit of leaders at
    UN headquarters in New York in September 2005.

    The Secretary-General focused on the structural change required at the UN
    level to revitalise international cooperation and to ensure that the machinery
    of the UN was capable of supporting the achievement of the MDGs. The
    Secretary-General set out the challenge faced by the UN in the introduction to
    the report:

    Five years into the new millennium, we have it in our power to pass on to our
    children a brighter inheritance than that bequeathed to any previous
    generation... If we act boldly — and if we act together — we can
    make people everywhere more secure, more prosperous and better able to enjoy
    their fundamental human rights.

    All the conditions are in place for us
    to do so... In an era of global abundance, our world has the resources to reduce
    dramatically the massive divides that persist between rich and poor, if only
    those resources can be unleashed in the service of all peoples. After a period
    of difficulty in international affairs, in the face of both new threats and old
    ones in new guises, there is a yearning in many quarters for a new consensus on
    which to base collective action. And a desire exists to make the most
    far-reaching reforms in the history of the United Nations so as to equip and
    resource it to help advance this twenty-first century
    agenda.[6]

    There were two key aspects to the
    Secretary-General’s proposals that have influenced the reforms that were
    subsequently agreed at the World Summit. First, he sought to achieve better
    integration of the objectives of the UN by recognising the equal importance of
    efforts to protect human rights, alongside focussing on development and
    security. This focus required an ‘upgrading’ of the importance of
    human rights in the overall operations of the UN system. Second, he also sought
    to address the problem of lack of implementation by governments of their
    substantial commitments and legal obligations, particularly in relation to human
    rights as well as the achievement of the MDGs.

    The Secretary-General’s proposals were focused across three key
    objectives for UN activity:

    • freedom from want (through making the right to development a reality for
      everyone, including through achievement of the MDGs);
    • freedom from fear (addressing security through improved international
      consensus and implementation); and
    • freedom to live in dignity (by making real the commitments of governments to
      promote democracy and strengthen the rule of law, as well as respect for all
      internationally recognized human rights and fundamental freedoms).

    The Secretary-General’s report sets forth how the foundation
    of any reform has to acknowledge the inter-relationship between these issues. It
    states that ‘Not only are development, security and human rights all
    imperative; they also reinforce each
    other’.[7] Accordingly:

    we will not enjoy development without security, we will not enjoy security
    without development, and we will not enjoy either without respect for human
    rights. Unless all these causes are advanced, none will succeed. In this new
    millennium, the work of the United Nations must move our world closer to the day
    when all people have the freedom to choose the kind of lives they would like to
    live, the access to the resources that would make those choices meaningful and
    the security to ensure that they can be enjoyed in
    peace.[8]

    The report therefore recommended changes to the UN human rights mechanisms.
    In particular it called for the establishment of a Human Rights Council, which
    would replace the existing Commission on Human Rights. The creation of a Council
    would see human rights elevated to a higher level within the UN
    structure.[9] As the Secretary-General
    explained:

    The establishment of a Human Rights Council would reflect in concrete terms
    the increasing importance being placed on human rights in our collective
    rhetoric. The upgrading of the Commission on Human Rights into a full-fledged
    Council would raise human rights to the priority accorded to it in the Charter
    of the United Nations. Such a structure would offer architectural and conceptual
    clarity, since the United Nations already has Councils that deal with two other
    main purposes — security and
    development.[10]

    This reform would also be accompanied by other measures – such as a
    continued focus on harmonising the working methods of the human rights treaty
    committee system, and by increasing, in a sustainable way, the capacity of the
    Office of the High Commissioner for Human Rights.

    The Secretary-General made clear that such reform needed to be accompanied by
    a redoubling of efforts by governments to meet their human rights obligations:

    When it comes to laws on the books, no generation has inherited the riches
    that we have. We are blessed with what amounts to an international bill of human
    rights, among which are impressive norms to protect the weakest among us,
    including victims of conflict and persecution... But without implementation, our
    declarations ring hollow. Without action, our promises are
    meaningless.[11]

    The time has come for Governments to be held to account, both to their
    citizens and to each other, for respect of the dignity of the individual, to
    which they too often pay only lip service. We must move from an era of
    legislation to an era of implementation.
    Our declared principles and our
    common interests demand no
    less.[12]

    The Secretary-General referred to this as the ‘implementation
    challenge’
    . He further elaborated this challenge in relation to the
    Millennium Development Goals as follows:

    The urgent task in 2005 is to implement in full the commitments already made
    and to render genuinely operational the framework already in place... The
    September summit must produce a pact for action, to which all nations subscribe
    and on which all can be judged. The Millennium Development Goals must no longer
    be floating targets, referred to now and then to measure progress. They must
    inform, on a daily basis, national strategies and international assistance
    alike. Without a bold breakthrough in 2005 that lays the groundwork for a rapid
    progress in coming years, we will miss the targets. Let us be clear about the
    costs of missing this opportunity: millions of lives that could have been saved
    will be lost; many freedoms that could have been secured will be denied; and we
    shall inhabit a more dangerous and unstable
    world.[13]

    Many of the proposals of the Secretary-General contained in the In larger
    freedom
    report were adopted at the World Summit in September 2005,
    particularly those related to human
    rights.[14]

    The World Summit resolved:

    • to strengthen the United Nations human rights machinery with the aim of
      ensuring effective enjoyment by all of all human rights and civil, political,
      economic, social and cultural rights, including the right to development;
      and
    • to integrate the promotion and protection of human rights into national
      policies and to support the further mainstreaming of human rights throughout the
      United Nations system.[15]

    The Summit also supported ‘stronger (UN) system-wide
    coherence’ including by ‘strengthening linkages between the
    normative work of the United Nations system and its operational
    activities’ and ‘ensuring that the main horizontal policy themes,
    such as sustainable development, human rights and gender, are taken into account
    in decision-making throughout the United
    Nations’.[16]

    To achieve this, the World Summit agreed to replace the Commission on Human
    Rights with a new Human Rights
    Council.[17] The General Assembly
    subsequently adopted a resolution establishing the Council and establishing its
    functions in March 2006.[18]

    • The creation of the Human Rights Council

    The creation of the Human Rights Council, and the settling of its
    working methods, has been the main focus of activity in the UN human rights
    system since the World Summit.

    The Human Rights Council was created as a subsidiary of the General Assembly
    of the UN (i.e., it is at a higher level than the Commission on Human Rights
    was). It retains many of the features of the Commission on Human Rights,
    including a focus on:

    • promoting universal respect for human rights;
    • addressing situations of violations of human rights, including gross and
      systematic violations; and
    • promoting the effective coordination and mainstreaming of human rights
      within the United Nations system.

    The resolution establishing the Council emphasises that it shall
    promote the indivisibility of all human rights: civil, political, economic,
    social and cultural rights, including the right to
    development.[19]

    The functions of the Human Rights Council are set out in Text Box 1
    below.

    Text Box 1 – Functions of the United Nations Human Rights
    Council
    [20]

    (a) Promote human rights education and learning as well as advisory
    services, technical assistance and capacity-building, to be provided in
    consultation with and with the consent of Member States concerned;

    (b) Serve as a forum for dialogue on thematic issues on all human
    rights;

    (c) Make recommendations to the General Assembly for the further
    development of international law in the field of human rights;

    (d) Promote the full implementation of human rights obligations
    undertaken by States and follow-up to the goals and commitments related to the
    promotion and protection of human rights emanating from United Nations
    conferences and summits;

    (e) Undertake a universal periodic review, based on objective and
    reliable information, of the fulfilment by each State of its human rights
    obligations and commitments in a manner which ensures universality of coverage
    and equal treatment with respect to all States; the review shall be a
    cooperative mechanism, based on an interactive dialogue, with the full
    involvement of the country concerned and with consideration given to its
    capacity-building needs; such a mechanism shall complement and not duplicate the
    work of treaty bodies; the Council shall develop the modalities and necessary
    time allocation for the universal periodic review mechanism within one year
    after the holding of its first session;

    (f) Contribute, through dialogue and cooperation, towards the
    prevention of human rights violations and respond promptly to human rights
    emergencies;

    (g) Assume the role and responsibilities of the Commission on Human
    Rights relating to the work of the Office of the United Nations High
    Commissioner for Human Rights, as decided by the General Assembly in its
    resolution 48/141 of 20 December 1993;

    (h) Work in close cooperation in the field of human rights with
    Governments, regional organizations, national human rights institutions and
    civil society;

    (i) Make recommendations with regard to the promotion and protection
    of human rights; and

    (j) Submit an annual report to the General Assembly.

    There are a number of significant differences between the Human Rights
    Council and its predecessor, the Commission on Human Rights. These include its
    increased status within the UN (due to being created at a higher level than the
    Commission had operated at) and the direct relationship that the Council enjoys
    with the General Assembly.

    The other most significant difference between the Human Rights Council and
    the Commission on Human Rights is the addition of a new function as set out at
    paragraph (e) above – namely, the universal periodic review process.

    The Secretary-General explained the purpose of this new function is to make
    explicit the role of the Human Rights Council as a ‘chamber of peer
    review’.[21] While there have
    for some time existed processes within the UN human rights system for dialogues
    between States on their human rights records, these processes have been
    criticised for being overtly political or ineffective (in the case of various
    procedures of the Commission on Human Rights) or have not been utilised (in the
    case of State-to-State complaint procedures under various human rights
    treaties).[22]

    The new universal periodic review function is intended to foster the capacity
    of the Human Rights Council to provide a forum for the regular scrutiny of the
    human rights records of all Member States of the UN. As the Secretary-General
    has stated:

    (The universal periodic review mechanism’s) main task would be to
    evaluate the fulfilment by all States of all their human rights obligations.
    This would give concrete expression to the principle that human rights are
    universal and indivisible.
    Equal attention will have to be given to civil,
    political, economic, social and cultural rights, as well as the right to
    development... Under such a system, every Member State could come up for review
    on a periodic basis.[23]

    This mechanism is intended to ‘complement but... not
    replace’[24] reporting
    procedures under human rights treaties. Those reporting procedures arise from
    ‘legal commitments and involve close scrutiny of law, regulations and
    practice with regard to specific provisions of those treaties by independent
    expert panels’.[25] By
    contrast:

    Peer review would be a process whereby States voluntarily enter into
    discussion regarding human rights issues in their respective countries, and
    would be based on the obligations and responsibilities to promote and protect
    those rights arising under the Charter and as given expression in the Universal
    Declaration of Human Rights. Implementation of findings should be developed as a
    cooperative venture, with assistance given to States in developing their
    capacities.

    Crucial to peer review is the notion of universal scrutiny, that is, that the
    performance of all Member States in regard to all human rights
    commitments should be subject to assessment by other States. The peer review
    would help avoid, to the extent possible, the politicization and selectivity
    that are hallmarks of the Commission’s (on Human Rights) existing
    system... The findings of the peer reviews of the Human Rights Council would
    help the international community better provide technical assistance and policy
    advice.[26]

    Under the periodic review process, every State would regularly be reviewed
    every four years. This would reinforce that domestic human rights concerns are
    truly matters of legitimate international interest.

    The Secretary-General argued that this review process ‘would help keep
    elected members accountable for their human rights
    commitments’.[27] Under the
    resolution establishing the Human Rights Council, members elected to the Council
    are required to ‘uphold the highest standards in the promotion and
    protection of human rights’, to ‘fully cooperate with the Council
    and be reviewed under the universal periodic review mechanism during their term
    of membership’.[28]

    Similarly, when casting votes in elections for the Council, members of the UN
    are required to ‘take into account the contribution of candidates to the
    promotion and protection of human rights and their voluntary pledges and
    commitments made thereto’. They may also by a two-thirds majority of the
    General Assembly ‘suspend the rights of membership in the Council of a
    member of the Council that commits gross and systematic violations of human
    rights’.[29]

    The processes for the conduct of the universal periodic review mechanism are
    to be developed within the first year of the Council’s operation (i.e., by
    June 2007). The detail of how the Council will perform this function remains to
    be settled.[30]

    Non-government organisations and Indigenous Peoples Organisations have
    identified the universal periodic review process as a significant process for
    improving the scrutiny of human rights issues within the Human Rights Council.
    In particular, it has the potential to provide a powerful tool for highlighting
    ongoing concerns about Indigenous
    rights.[31]

    It remains to be seen how open the process for participation in the universal
    periodic review will be made (such as by enabling interventions by
    non-government organisations (NGOs) in any dialogue process, or the making of
    submissions for consideration as part of the review). Current discussions in
    Geneva on this process are considering the involvement of independent experts in
    preparing analytical and evaluative documents as the basis for the review,
    identifying key issues for dialogue, drafting the final report with conclusions
    and recommendations and follow up actions.

    Regardless of the formal procedures adopted, however, the review process will
    provide an opportunity to focus international attention on the human rights
    records of all States. At its most limited, this could occur through the
    preparation of parallel reports on key issues of human rights compliance by
    non-government organisations. At best, it could be facilitated through direct
    participation of NGOs and of independent UN experts in the review processes
    within the Council.

    As such, this mechanism should provide an opportunity to create a connection
    between domestic policy debate and international dialogue about the human rights
    record of a country. This potential is discussed further in Part 2 of this
    chapter.

    The timetable for which countries will be subject to the review process in
    what year has not been settled as yet. However, it has been agreed that every
    year both countries that are currently members of the Human Rights Council as
    well as non-members of the Council will be included in the annual list for
    review.

    The fact that Australia is not currently a member of the Council, and is
    unlikely to become one until at least 2015, will not prevent the possibility of
    Australia being reviewed under this process in the next year or
    two.[32]

    • Indigenous participation in the processes of the Human Rights
      Council

    In establishing the Human Rights Council, it was decided that all
    the existing processes of the Commission on Human Rights would be retained for a
    minimum period of twelve months.

    As a result, the UN structure as it currently exists and as it relates
    specifically to indigenous peoples is shown in Diagram 1 below.

    Diagram 1: Overview of Indigenous mechanisms within the UN system, with a
    focus on human rights procedures

    Diagram 1: Overview of Indigenous mechanisms within the UN system, with a focus on human rights procedures

    From an Indigenous perspective, this means that the Human Rights Council has
    retained, but is currently considering the future status of, the following
    relevant mechanisms:

    • The system of Special Rapporteurs who report to the Human Rights
      Council
      : These Special Rapporteurs are appointed as experts and provided
      with a mandate which they exercise independently of the Council. It includes
      Rapporteurs on specific issues such as health, housing, education and so forth.
      These Rapporteurs are obliged to consider the distinct problems of
      discrimination against Indigenous peoples within their mandated areas. It also
      includes the Special Rapporteur on the situation of human rights and fundamental
      freedoms of indigenous peoples, who prepares a report to the Council each year
      (usually on a chosen topic or theme), can receive complaints (or communications)
      from indigenous peoples, and who can also conduct country
      visits.[33]
    • The Sub-Commission on the Protection and Promotion of Human Rights:
      The Sub-Commission is comprised of a number of independent experts who provide
      advice to the Council (and formerly the Commission on Human Rights) on key
      issues. The Sub-Commission’s members have initiated and prepared numerous
      reports on indigenous human rights issues over the years, such as on indigenous
      peoples’ relationship to land; treaties between States and indigenous
      peoples; and indigenous peoples’ permanent sovereignty over natural
      resources.[34]
    • The Working Group on Indigenous Populations (WGIP): The WGIP consists
      of five members of the Sub-Commission, who report back to the Sub-Commission and
      through it to the Human Rights Council. Through open meetings (usually lasting
      for one week annually in Geneva that occurs mid-year) the Working Group has
      facilitated the participation of indigenous peoples in reviewing the extent to
      which indigenous peoples enjoy human rights globally, as well as identifying
      areas for the further development of human rights standards relating to
      indigenous peoples. Most notably, it has produced the initial version of the
      Declaration on the Rights of Indigenous Peoples, as well as guidelines and draft
      principles relating to numerous issues, such as indigenous heritage protection,
      and the principle of free, prior and informed
      consent.[35]

    The Working Group on the Declaration on the Rights of Indigenous
    Peoples also continued to exist when the Human Rights Council was created.
    However, with the adoption by the Human Rights Council of the Declaration on the
    Rights of Indigenous Peoples in June 2006, the mandate of the Working Group was
    fulfilled and the Working Group ceased to exist.

    These procedures and mechanisms within the UN human rights system are also
    supplemented by the work of the UN Permanent Forum on Indigenous Issues.

    As shown in Diagram 1, the Permanent Forum is a specialist body of the
    Economic and Social Council (ECOSOC). Accordingly, it is not subject to the
    review of human rights mechanisms. It does, however, have a broad mandate which
    includes consideration of human rights issues (alongside issues relating to
    economic and social development, culture, the environment, education and
    health).

    The functions of the Permanent Forum differ from those of the human rights
    mechanisms that relate to indigenous issues noted above. This is because it is
    focused on providing expert advice and recommendations on indigenous issues to
    the ECOSOC, as well as to the various programmes, funds and agencies of the
    United Nations; and on raising awareness and promoting the integration and
    coordination of activities relating to indigenous issues within the United
    Nations system. It does not, therefore, primarily focus on reviewing situations
    of abuses of human rights or on standard setting. The work of the Permanent
    Forum on Indigenous Issues is discussed further in the next section of this
    chapter.

    In accordance with the resolution establishing the Human Rights Council, a
    review has commenced to recommend whether and how any of the existing human
    rights mechanisms should be improved or
    rationalized.[36] Any modification
    proposed to the existing practices must, however, ‘maintain a system of
    special procedures, expert advice and a complaint
    procedure’.[37]

    As a consequence of this review of all the human rights mechanisms and
    procedures, the Human Rights Council will be determining by mid-2007 the
    existence of processes which enable specialist input on indigenous human rights
    issues. They will also be determining the ongoing processes that enable the
    participation of indigenous peoples in the revised human rights structure.

    The indigenous specific procedures of the Human Rights Council (or the
    Commission on Human Rights as it then was) were most recently reviewed in 2003
    and 2004. The specific focus of that review was to identify any duplication in
    mandates and procedures and the potential for rationalising
    processes.[38]

    The review noted the existence (at the time) of four mechanisms within the
    United Nations system that deal specifically with indigenous issues (namely, the
    WGIP, Special Rapporteur, Permanent Forum on Indigenous Issues and Working Group
    on the Draft Declaration). The 2003 report noted the distinct and complementary
    mandates of these four
    mechanisms.[39] The 2004 report then
    found that:

    The two Working Groups, the Special Rapporteur and the Permanent Forum each
    have a unique and specific mandate within the United Nations system. However, it
    is also evident that in accomplishing its mandate one mechanism could touch upon
    subject matters that might be the primary concern of another mechanism. This in
    itself should not be characterized as an overlap of mandates, but rather as an
    acknowledgement and reinforcement of the interrelated nature of the many issues
    facing indigenous peoples. Should any rationalization or streamlining of
    indigenous mechanisms take place, the unique and specific activities undertaken
    by each mechanism should be taken into
    account.[40]

    The 2004 Report noted the strong support for the role of the Special
    Rapporteur,[41] as well as for the
    continuation of the WGIP by most indigenous organisations and some Member
    States.[42] As noted in the Social Justice Report 2002, Australia was among a handful of Member
    States who opposed the continued existence of the WGIP, alongside the United
    States of America.[43] The 2004
    Report also noted strong support for the role of the Permanent Forum on
    Indigenous Issues, and for it to be ‘the focal point for indigenous issues
    within the United Nations
    system’.[44]

    The 2004 report also found that:

    Although examined under a different mandate, similar themes are being
    considered by both the (WGIP) and the Permanent Forum. The themes of Working
    Group meetings of the last four years have been reflected in substance in the
    reports and recommendations emerging for the Forum during its first three
    sessions. As human rights is one of the mandated areas of the Permanent Forum,
    it has become the practice of indigenous delegates attending the Permanent Forum
    since the first session to set their suggested recommendations in context by
    providing a review of developments from the various indigenous regions and their
    homelands. Coordination of the themes of the Working Group, the Special
    Rapporteur and the Permanent Forum would seem desirable, in order to avoid
    duplication and to promote
    effectiveness.[45]

    The report concluded that:

    The increased attention being given to indigenous issues within organizations
    of the United Nations system is a welcome development. The United Nations should
    continue to mainstream indigenous issues and to expand its programmes and
    activities for the benefit of indigenous peoples in a coordinated manner... it
    is clear that every effort must be made to ensure coordination among (the
    various mechanisms), while recognizing the specific tasks that each is mandated
    to perform.[46]

    Importantly, the UN World Summit in September 2005 had highlighted the
    ongoing importance of addressing indigenous peoples’ human rights and for
    maintaining processes for the participation of Indigenous peoples. The Summit
    reaffirmed:

    our commitment to continue making progress in the advancement of the human
    rights of the world’s indigenous peoples at the local, national, regional
    and international levels, including through consultation and collaboration
    with them
    , and to present for adoption a final draft United Nations
    declaration on the rights of indigenous peoples as soon as
    possible.[47]

    The current review by the Human Rights Council of all existing human rights
    mechanisms and procedures must be seen in the light of the 2004 review of
    Indigenous mechanisms, and the ongoing commitment to advancing the human rights
    of Indigenous peoples in the World Summit
    document.[48]

    As part of the process of reviewing the existing mechanisms, the Human Rights
    Council has requested advice from the Sub-Commission on the Protection and
    Promotion of Human Rights outlining its vision and recommendations for future
    expert advice to the Council, as well as indicating the status of ongoing
    studies and an overall review of activities.

    Indigenous organisations have provided input into this process through the
    submission of information to the Working Group on Indigenous Populations (WGIP)
    at its 24th session in July 2006. An overview of the concerns of
    Indigenous organisations relating to the ongoing mechanisms for Indigenous
    participation and for ongoing scrutiny of indigenous issues by the Human Rights
    Council is provided in Text Box 2 below.

    Text Box 2 – Summary of proposals by Indigenous Peoples for future
    United Nations mechanisms to protect and promote the human rights of Indigenous
    Peoples.
    [49]

    • The Human Rights Council should affirm that the human rights of indigenous
      peoples will continue to be a distinct and ongoing thematic area of its work.
    • It should lay to rest any insecurities among indigenous peoples that the
      United Nations reform process and ongoing reorganization of the United Nations
      human rights structures could lead to the diminution or disappearance of
      existing positive functions which are central to the advancement of the rights
      of indigenous peoples.
    • The Human Rights Council should establish an appropriate subsidiary body on
      Indigenous Peoples, in fulfilment of all areas of its mandate. In doing so, the
      Human Rights Council should draw on the advice and assistance of human rights
      experts, including the growing number of experts among indigenous peoples.
    • Existing United Nations arrangements for indigenous peoples have
      differentiated functions with complementary mandates which do not duplicate each
      other. Any future arrangements should enhance and not diminish the existing
      functions provided by:

      • the Working Group on Indigenous
        Populations,
      • the Special Rapporteur on the human
        rights and fundamental freedoms of indigenous peoples and
      • the United Nations Permanent Forum
        on Indigenous Issues.
    • The adoption of the United Nations Declaration on the Rights of Indigenous
      Peoples means that the Human Rights Council could undertake useful work to
      promote its implementation, e.g. by providing guidelines for the implementation
      of specific articles or rights within the Declaration.
    • The Declaration warrants the continuation and enhancement of appropriate
      mechanisms within the United Nations human rights system with the necessary
      focus and expertise on the rights of indigenous peoples.
    • The Indigenous Peoples’ Caucus has identified a number of areas in
      which further standard-setting and/or review of developments on indigenous
      peoples’ rights is needed, including:

      • Guidelines for the implementation
        of free, prior and informed consent of indigenous peoples to policies,
        programmes and projects affecting their rights, lands and welfare;
      • The human rights of indigenous
        women and children and youth;
      • Indigenous health, housing,
        education and other economic, social and cultural rights;
      • Examining international standards
        applicable to development programmes and projects affecting indigenous peoples,
        and their adequacy for protecting and promoting their human rights;
      • The human rights impacts on
        indigenous peoples in relation to the production, export and unregulated use of
        banned toxics and pesticides;
      • The impacts of militarization on
        the human rights of indigenous peoples;
      • The ongoing human rights impacts of
        colonial laws and policies on indigenous peoples and possible remedies;
      • The marginalization of indigenous
        peoples in the negotiation and implementation of peace accords and agreements
        between Governments and armed groups, and their impacts on the human rights of
        indigenous peoples; and
      • Administration of justice for
        indigenous peoples.
    • Access to all future mechanisms should be open to all indigenous
      peoples’ organizations, and fostering their full and effective
      participation through written and oral interventions. Indigenous peoples’
      attendance and full participation at these meetings should continue to be
      supported by the United Nations Voluntary Fund for Indigenous Populations, and
      that the mandate of the Voluntary Fund be amended to enable this to
      happen.

    The independent experts of the WGIP have also made a series of
    recommendations to the Sub-Commission (and for consideration by the Human Rights
    Council) identifying the specific needs for continued expert advice on
    indigenous issues.[50]

    In common with Indigenous organisations, the WGIP recommend that
    ‘Indigenous issues’ should be automatically included in the agenda
    of all the substantive sessions of the Human Rights Council as a separate agenda
    item. They also recommend that all special procedures of the Human Rights
    Council and human rights treaty-monitoring bodies should consider indigenous
    issues in exercising their
    mandates.[51]

    The WGIP acknowledge the role of the Permanent Forum (including providing
    advice to the UN directly from indigenous experts, although the Permanent Forum
    is not a human rights body); and the Special Rapporteur (particularly in
    relation to advice on the implementation in practice of human rights norms
    relating to indigenous groups). They state that these mechanisms do not,
    however, provide the necessary coverage for all human rights issues for
    Indigenous peoples into the future.

    In particular, they argue the ongoing need for:

    • An expert human rights body focused on indigenous issues: to
      consider recent developments on issues which may need to be brought to the
      attention of the Human Rights Council. Such a body would need to address issues
      on which there is no study to date, and to address these developments in as
      dynamic a way as possible, including by means of interactive exchanges. The WGIP
      have also identified a range of specific areas where the advice of an expert
      body in the human rights of indigenous peoples could be useful. They include
      contributing to securing the implementation of the goals of the Second
      International Decade of the World’s Indigenous People, assisting the
      Office of the United Nations High Commissioner for Human Rights in the field of
      technical assistance in relation to indigenous peoples and possibly contributing
      to the Universal Periodic Review process of the Human Rights Council.
    • Action-oriented in-depth studies of specific issues affecting the
      rights of indigenous peoples.
      Such studies would explore what is needed
      to achieve full legal recognition and implementation in practice of the rights
      of indigenous peoples, with conclusions and recommendations which are submitted
      to a superior body for discussion and action. This is not within the mandate
      and/or the current practice of the Permanent Forum or the Special Rapporteur.
      The WGIP has identified many issues which still require in depth studies. The
      WGIP members argue that the Special Rapporteur and the Permanent Forum do not
      have the time or the adequate mandates or resources to engage in such
      studies.
    • Ongoing standard-setting processes. The adoption of the United
      Nations Declaration on the Rights of Indigenous Peoples by the Council should
      not be the end of standard-setting activities within the United Nations system
      in the field of indigenous rights. There is a need for the drafting of codes of
      good practice and guidelines with regard to implementation. Such codes are a
      bridge between a norm and its implementation in practice. Certain concepts in
      the United Nations Declaration on the Rights of Indigenous Peoples would benefit
      from guidelines on
      implementation.[52] Such codes need
      to be drafted by experts in human rights generally, as well as by experts in
      indigenous issues, with the close involvement of the representatives of as many
      indigenous peoples and organizations as possible. Standard-setting and the
      drafting of such codes or guidelines is not within the mandate of either the
      Permanent Forum or the Special Rapporteur, and they would not have the time to
      undertake the task.[53]

    To achieve this, the WGIP have recommended that:

    • there should be an expert body providing advice on the promotion,
      implementation and protection of the rights of indigenous peoples;
    • this expert body should produce in-depth, action-oriented reports and
      studies and to engage in the elaboration of norms and other international
      standards relating to the promotion and protection of the rights of indigenous
      peoples;
    • this expert body should be assisted by the widest possible participation of
      indigenous peoples and organizations; and
    • should report to the Human Rights Council through a wider human rights
      advisory expert body.[54]

    The comments from the Indigenous Peoples Caucus and the
    recommendations of the WGIP indicate what is at stake with the current review
    process being undertaken by the Human Rights Council.

    The preliminary conclusions of the Working Group established by the Human
    Rights Council to review the existing mechanisms suggests that the
    Sub-Commission will be abolished and replaced with a new body, likely to be
    called the ‘Expert Advisory Body’ or the ‘Human Rights
    Consultative Committee.’[55] The role and functions of this body are yet to be settled, and it is unclear
    whether it will include a specific focus on Indigenous issues. It is also
    unclear whether it will replicate the consultative processes that exist through
    an Indigenous specific advisory body such as the Working Group on Indigenous
    Populations.

    In all likelihood, the biggest threat will come to the continued existence of
    the Working Group on Indigenous Populations. The need for such a body –
    either in its existing format or in a revised structure - is clearly articulated
    above.

    The challenge that has emerged through the current human rights reform
    process is to maintain the capacity for direct participation of and engagement
    with Indigenous peoples on human rights issues within the structures of the
    newly created Human Rights Council.

    It would be totally unacceptable if one of the outcomes of the reform process
    was to limit the capacity of indigenous peoples’ participation. Indeed,
    such an outcome would be contrary to the commitments made at the World Summit to
    advance recognition of indigenous peoples’ human rights through
    participatory processes. It would also contradict commitments made by the
    General Assembly of the UN in relation to the Second International Decade of the
    World’s Indigenous Peoples, as well as be inconsistent with the emerging
    processes for implementing a rights based approach to development (discussed
    further in the next section).

    • Integrating human rights across the activities of the United
      Nations

    Accompanying these reforms to the UN structure have been sustained
    efforts to mainstream human rights across the UN by integrating them into all
    policies and programs.

    This has occurred through the increased recognition of the right to
    development and the entrenchment within the UN of a human rights based approach
    to development and poverty eradication.

    This has been accompanied by an increased recognition of the right of
    Indigenous peoples to effective participation in decision making that affects
    them. These developments have in turn begun to crystallise in a growing
    acceptance of the emerging concept of free, prior and informed consent.

    Previous Social Justice Reports and Native Title Reports have
    discussed at length the right to development as well as the adoption by the UN
    agencies of the Common Understanding of a Rights Based Approach to
    Development Cooperation
    .[56] In
    summary:

    • The Declaration on the Right to Development (DRD) was adopted by the UN
      General Assembly in 1986. The right to development is recognised as an
      inalienable human right by virtue of which every human person and all peoples
      are entitled to participate in, contribute to, and enjoy economic, social,
      cultural and political development, through which all human rights and
      fundamental freedoms can be fully realised.
    • Accordingly, development is defined as a process which belongs to people,
      not to States. Article 2(1) of the Declaration states that ‘The human
      person is the central subject of development and should be the active
      participant and beneficiary of the right to development.’
    • Article 1 of the Declaration also makes it clear that the goal of
      development is the realisation of all human rights and fundamental freedoms.
      Development must be carried out in a way which respects and seeks to realise
      people's human rights. Thus development is not only a human right in itself, but
      is also defined by reference to its capacity as a process to realise all
      other human rights.
    • This emphasises the universality and indivisibility of human rights: it
      focuses on improving all rights, civil and political, as well as economic,
      social and cultural. The preamble to the Declaration notes that the development
      process ‘aims at the constant improvement of the
      well-being of the entire population and of all individuals on the basis of their
      active, free and meaningful participation in development and in the fair
      distribution of benefits resulting there from’.
    • The right to development therefore encompasses the following issues for
      Indigenous peoples:

      • ensuring development is
        non-discriminatory in its impact and in its distribution of benefits;
      • requires free and meaningful
        participation by all people in defining its objectives and the methods used to
        achieve these objectives;
      • is directed towards the goal of
        realizing the economic, social, and cultural rights of people;
      • facilitates the enjoyment of
        indigenous peoples' cultural identity, including through respects the economic,
        social and political systems through which indigenous decision-making occurs;
        and
      • is self-determined development, so
        that peoples are entitled to participate in the design and implementation of
        development policies to ensure that the form of development proposed on their
        land meets their own objectives and is appropriate to their cultural
        values.[57]
    • The importance of ensuring effective enjoyment of the right to development
      for all peoples has been an ongoing commitment of the UN for some time.
      It was affirmed in the Vienna Declaration at
      the World Conference on Human Rights in 1993 (Article 10 states that the right
      to development is ‘a universal and inalienable right and an integral part
      of fundamental human rights’). It is also integral to the Millennium
      Development Goals process (discussed further below) and its importance was
      recently re-iterated at the World Summit in 2005.
    • The UN agencies have committed to ensuring that all their policies and
      programming are consistent with the right to development through the adoption in
      2003 of the Common Understanding of a Rights Based Approach to Development
      Cooperation
      .[58]
    • The Common Understanding requires that all programmes should contribute to
      the realisation of human rights; and be guided by human rights standards at all
      phases of development and planning. It recognises that people should be
      recognised as active participants in their own development and not as passive
      recipients. Accordingly, the Common Understanding emphasises the importance of
      process (through participation and empowerment) as well focusing on marginalised
      communities, through the adoption of targets and goals that are aimed at
      reducing disparities in the enjoyment of rights.

    These developments to implement into practice the key
    elements of the right to development place considerable emphasis on
    participation of affected peoples and individuals.

    As recent Social Justice Reports and Native Title Reports have
    documented, Australia’s existing human rights treaty obligations also
    emphasise rights of Indigenous peoples to effective participation in
    decision-making that affects them, either directly or
    indirectly.[59]

    Both the Committee on Economic, Social and Cultural Rights and the Human
    Rights Committee have interpreted common Article 1 of the international
    covenants (the right of all peoples to self-determination) as applying to the
    situation of indigenous peoples.[60] Through a number of individual communications and general recommendations, the
    Human Rights Committee has also elaborated on the scope of Article 27 of the
    International Covenant on Civil and Political Rights (the protection of minority
    group rights) and its application to the land and resource rights of Indigenous
    communities, and the positive obligation on States to protect Indigenous
    cultures.[61] The Committee has indicated that in determining whether the State has
    violated the rights of indigenous peoples under Article 27, it will consider
    whether measures are in place to ensure their ‘effective
    participation’ in decisions that affect
    them.[62]

    Similarly, the Committee on the Elimination of Racial Discrimination (CERD)
    has issued a General Recommendation emphasising that the International
    Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
    places obligations on States who are parties to the Convention to take all
    appropriate means to combat and eliminate racism against indigenous peoples. It
    has called on States to:

    1. recognise and respect indigenous peoples distinct culture, history, language
      and way of life as an enrichment of the State's cultural identity and to promote
      its preservation;
    2. 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
      identity;
    3. provide indigenous peoples with conditions allowing for a sustainable
      economic and social development compatible with their cultural
      characteristics;
    4. 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
      ; and
    5. ensure that indigenous communities can exercise their rights to practice and
      revitalise their cultural traditions and customs, to preserve and practice their
      languages.[63]

    The CERD has also, under its early warning/ urgent action procedure
    and periodic reporting mechanism, highlighted the necessity for the informed
    consent of indigenous peoples in decision-making that affects their lives as an
    integral component of the right to equality before the law (under Article 5 of
    the ICERD).[64]

    These developments in international law (through binding treaty obligations)
    and UN policy and practice demonstrate the increased acknowledgement and
    reliance on human rights as providing a framework for proactively addressing
    existing inequalities within society and for recognising and protecting the
    distinct cultures of Indigenous peoples. And there are increasing expectations
    that this be done on the basis of full and effective participation of affected
    indigenous peoples.

    These developments have been reflected upon by the various indigenous
    mechanisms within the UN. Both the Working Group on Indigenous Populations and
    the Permanent Forum on Indigenous Issues have given detailed consideration to
    the development through the UN processes and international law of an emerging principle of free, prior and informed consent.

    In particular, the following studies and workshops have been conducted that
    have advanced the understanding of the principle of free, prior and informed
    consent:

    • The WGIP released a preliminary working paper in 2004 on the principle of
      free, prior and informed consent of indigenous peoples in relation to
      development affecting their lands and natural resources, to provide a framework
      for the drafting of a legal commentary by the Working Group on this
      concept.[65]
    • The Permanent Forum on Indigenous Issues conducted the International
      Workshop on Methodologies regarding Free, Prior and Informed Consent and
      Indigenous Peoples in January 2005. The workshop was a recommendation of the
      third session of the Permanent Forum, with the issue having arisen continually
      throughout the first three sessions of the Forum from
      2002-2004.[66]
    • The Permanent Forum Secretariat co-convened a workshop with my Office at the
      International Engaging Communities Conference in Brisbane in 2005, titled Engaging the marginalized: Partnerships between Indigenous Peoples,
      governments and civil society
      . The workshop developed Guidelines for
      engagement with indigenous peoples based on international law and practice, and
      informed by the principle of free, prior and informed
      consent.[67]
    • The WGIP issued a revised working paper on the principle of free, prior and
      informed consent of indigenous peoples for its 2006 session.
      Contributions were invited to identify best practice examples to govern the
      implementation of the principle of free, prior and informed consent of
      indigenous peoples in relation to developments affecting their lands and natural
      resources.[68]
    • The WGIP also released at its 2006 session a working paper on draft
      principles and guidelines on the heritage of indigenous peoples that places
      considerable emphasis on the need to respect the principle of free, prior and
      informed consent.[69]

    Both the Permanent Forum and the WGIP have emphasised that the
    principle of free, prior and informed consent is not a newly created right for
    indigenous peoples. Instead, it brings together, or synthesises, the existing
    legal obligations of States under existing international law (such as the
    provisions outlined above relating to self-determination, cultural and minority
    group rights, non-discrimination and equality before the
    law).[70] In addition, the principle
    of free, prior and informed consent:

    • Has been identified as an integral component in the implementation of
      obligations under Article 8(j) of the Convention on Biological Diversity.
      It’s key elements are reflected in
      the[71]
    • Is explicitly named in relation to indigenous peoples in existing
      international treaties such as ILO Convention (No.169) Concerning Indigenous
      and Tribal Peoples in Independent Countries
      (see Articles 6 and 7 for
      example).[72]
    • Is also referred to in several contexts in the United Nations Declaration on
      the Rights of Indigenous Peoples, as adopted by the Human Rights Council in June
      2006 (see Articles 11, 21 and 31 for example).

    As the Secretariat of the Permanent Forum have noted:

    The principle of free prior and informed is increasingly emerging as a
    practical methodology within the UN system for designing programs and projects,
    which either directly or indirectly affect indigenous peoples. It is also a
    mechanism for operationalizing the human-rights based approach to
    development.[73]

    The Working Group on Indigenous Populations explains the importance of the
    application of the principle of free, prior and informed consent to indigenous
    peoples as follows in Text Box 3.\

    Text Box 3 – The principle of free, prior and informed consent and
    Indigenous peoples
    [74]

    Substantively, the right of free, prior and informed consent is grounded in
    and is a function of indigenous peoples’ inherent and prior rights to
    freely determine their political status, freely pursue their economic, social
    and cultural development and freely dispose of their natural wealth and
    resources - a complex (series) of inextricably related and interdependent rights
    encapsulated in the right to self-determination, to their lands, territories and
    resources, where applicable, from their treaty-based relationships, and their
    legitimate authority to require that third parties enter into an equal and
    respectful relationships with them based on the principle of informed consent.

    Procedurally, free, prior and informed consent requires processes that
    allow and support meaningful and authoritative choices by indigenous peoples
    about their development paths.

    In relation to development projects affecting indigenous peoples’
    lands and natural resources, the respect for the principle of free, prior and
    informed consent is important so that:

    • Indigenous peoples are not coerced, pressured or intimidated in their
      choices of development;
    • Their consent is sought and freely given prior to the authorization and
      start of development activities;
    • Indigenous peoples have full information about the scope and impacts of the
      proposed development activities on their lands, resources and well-being;
      and
    • Their choice to give or withhold consent over developments affecting them is
      respected and upheld.

    Human rights, coupled with best practices in human development,
    provide a comprehensive framework for participatory development approaches which
    empower the poorest and most marginalized sections of society to have a
    meaningful voice in development. Indeed, this is integral to a human
    rights-based understanding of poverty alleviation as evidenced by the definition
    of poverty adopted by the Committee on Economic, Social and Cultural rights:
    “in light of the International Bill of Rights, poverty may be defined as a
    human condition characterized by sustained or chronic deprivation of the
    resources, capabilities, choices, security and power necessary for the enjoyment
    of an adequate standard of living and other civil, cultural, economic, political
    and social rights (E/C.12/2001/10, para.
    8).

    Moreover, the realization of human rights requires recognition of conflicts
    between competing rights and the designing of mechanisms for negotiation and
    conflict resolution. More specifically, human rights principles require the
    development of norms and decision-making processes that:

    • Are democratic and accountable and enjoy public confidence;
    • Are predicated on the willingness of interested parties to negotiate in good
      faith, and in an open and transparent manner;
    • Are committed to addressing imbalances in the political process in order to
      safeguard the rights and entitlements of vulnerable groups;
    • Promote women’s participation and gender equity;
    • Are guided by the prior, informed consent of those whose rights are affected
      by the implementation of specific projects;
    • Result in negotiated agreements among the interested parties; and
    • Have clear, implementable institutional arrangements for monitoring
      compliance and redress of grievances.

    While the WGIP has focused on the application of the principle of free, prior
    and informed consent in relation to land and resources, the Permanent Forum on
    Indigenous Issues has considered the application of the principle across a
    broader range of issues. They note it applies:

    • In relation to indigenous lands and territories; including sacred sites (may
      include exploration, such as archaeological explorations, as well as development
      and use);
    • In relation to treaties, agreements and other constructive arrangements
      between states and indigenous peoples, tribes and nations;
    • In relation, but not limited to, extractive industries, conservation,
      hydro-development, other developments and tourism activities in indigenous areas
      leading to possible exploration, development and use of indigenous territories
      and/or resources;
    • In relation to access to natural resources including biological resources,
      genetic resources and/or traditional knowledge of indigenous peoples, leading to
      possible exploration, development or use thereof;
    • In relation to development projects encompassing the full project cycle,
      including but not limited to assessment, planning, implementation, monitoring,
      evaluation and closure - whether the projects be addressed to indigenous
      communities or, while not addressed to them, may affect or impact upon them;
    • In relation to UN agencies and other intergovernmental organizations who
      undertake studies on the impact of projects to be implemented in indigenous
      peoples territories;
    • In relation to policies and legislation dealing with or affecting indigenous
      peoples; and
    • In relation to any policies or programmes that may lead to the removal of
      their children, or their removal, displacement or relocation from their
      traditional territories.[75]

    The Permanent Forum have identified the common elements of the
    principle of free, prior and informed consent as those set out in Text Box 4
    below.

    Text Box 4 - Elements of a Common Understanding of the principle of
    free, prior and informed
    consent
    [76]
    What?

    Free should imply no coercion, intimidation or manipulation;

    Prior should imply consent has been sought sufficiently in advance
    of any authorization or commencement of activities and respect time requirements
    of indigenous consultation/ consensus processes;

    Informed – should imply that information is provided that
    covers (at least) the following aspects:

    1. The nature, size, pace, reversibility and scope of any proposed project or
      activity;
    2. The reason/s or purpose of the project and/or activity;
    3. The duration of the above;
    4. The locality of areas that will be affected;
    5. 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;
    6. Personnel likely to be involved in the execution of the proposed project
      (including indigenous peoples, private sector staff, research institutions,
      government employees and others); and
    7. 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 other institutions. The inclusion of a gender
    perspective and the participation of indigenous women are essential, as well as
    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 understood it.

    When?

    FPIC should be sought sufficiently in advance of commencement or
    authorization of activities, taking into account indigenous peoples own
    decision-making processes, in phases of assessment, planning, implementation,
    monitoring, evaluation and closure of a project.

    Who?

    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 Agencies and governments should ensure a
    gender balance and take into account the views of children and youth as
    relevant.

    How?

    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.

    Procedures/Mechanisms

    • Mechanisms and procedures should be established to verify FPIC as described
      above, including mechanisms of oversight and redress, such as the creation of
      national mechanisms.
    • As a core principle of FPIC, all sides of a 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 to
      independently review these processes.
    • Determination that the elements of FPIC have not been respected may lead to
      the revocation of consent given.

    The principle of free, prior and informed consent has recently received
    important international endorsement by the United Nations General Assembly. In
    adopting the program of action for the Second International Decade of the
    World’s Indigenous People, five key objectives were agreed for the Decade.
    They include:

    Promoting the full and effective participation of indigenous peoples in
    decisions which directly or indirectly affect them, and to do so in accordance
    with the principle of free, prior and informed
    consent.[77]

    The Program of Action for the Second International Decade was adopted by
    consensus. In other words, no governments expressed objections to this
    objective. All governments have committed to advance this objective
    internationally and through their domestic policies and programmes over the
    course of the International Decade.

    The principle of free, prior and informed consent has emerged as a primary
    focus for discussion in advancing the rights of indigenous peoples, particularly
    in relation to land and resources, heritage protection, intellectual property
    and biological diversity. The exact content of the principle, however, will
    continue to be debated and negotiated in international forums in the coming
    years.[78]

    2) The making of global commitments to action – The
    Millennium Development Goals and the Second International Decade of the
    World’s Indigenous People

    As noted earlier in this chapter, the Secretary-General of the UN
    laid down the ‘implementation challenge’ for the global community in
    his In larger freedom report in preparation for the World Summit in 2005.
    He stated:

    When it comes to laws on the books, no generation has inherited the riches
    that we have... But without implementation, our declarations ring hollow.
    Without action, our promises are
    meaningless.[79]

    The time has come for Governments to be held to account, both to their
    citizens and to each other, for respect of the dignity of the individual, to
    which they too often pay only lip service. We must move from an era of
    legislation to an era of implementation. Our declared principles and our common
    interests demand no less.[80]

    He also defined the challenge as to ‘implement in full the commitments
    already made and to render genuinely operational the framework already in
    place’.[81]

    For indigenous peoples, there currently exist two frameworks at the global
    level which provide a focal point for this implementation challenge:

    • the Millennium Development Goals, as agreed at the Millennium Summit in 2000
      and due to be achieved by 2015; and
    • the Second International Decade of the World’s Indigenous People, as
      agreed in 2004 and also due to end by 2015.

    For indigenous peoples, a focus on implementation through these
    frameworks is particularly crucial. This is due to considerable concern at the
    limited achievements of the First International Decade of the World’s
    Indigenous People from 1995 – 2004. Principle among the concerns about the
    Decade was that governmental action did not match the rhetoric and commitments
    made to any significant degree.

    Similarly, the resolution affirming the Program of Action for the Second
    International Decade noted ongoing concerns about ‘the precarious economic
    and social situation that indigenous people continue to endure in many parts of
    the world in comparison to the overall population and the persistence of grave
    violations of their human rights’ and accordingly ‘reaffirmed the
    urgent need to recognize, promote and protect more effectively their rights and
    freedoms’.[82]

    Concerns have also been expressed at the absence of Indigenous participation
    in the formulation of the Millennium Development Goals (MDGs). There has been
    identified an ongoing need to ensure that the MDGs are culturally relevant and
    able to assist the situation of indigenous peoples.

    These concerns have been at the forefront of discussions during the
    establishment of the Second International Decade of the World’s Indigenous
    People in 2004 and the approval of a Program of Action for the Decade in
    2005.

    International efforts over the past two years have sought to ensure that the
    MDG process and the Second International Decade are mutually reinforcing and
    complementary in their focus, in order to maximise the opportunities to advance
    the situation of Indigenous peoples. The Permanent Forum on Indigenous Issues,
    in particular, has led these efforts.

    • The Millennium Development Goals and Indigenous peoples

    At the United Nations Millennium Summit in September 2000, world
    leaders agreed to a set of time bound and measurable goals and targets for
    combating poverty, hunger, disease, illiteracy, environmental degradation and
    discrimination against women.[83] These are commonly referred to as the Millennium Development Goals (MDGs). At
    the Millennium Summit, world leaders committed to the achievement of the goals
    by 2015.

    The purpose of the MDGs is set out in the Millennium Declaration as
    follows:

    We will spare no effort to free our fellow men, women and children from the
    abject and dehumanizing conditions of extreme poverty, to which more than a
    billion of them are currently subjected. We are committed to making the right to
    development a reality for everyone and to freeing the entire human race from
    want.[84]

    There are eight MDGs, supported by 18 targets and 48 indicators. The 8 MDGs
    and 18 targets are set out in Text Box 5 below.

    Text Box 5 – The Millennium Development Goals

    Goal 1. Eradicate extreme poverty and hunger

    Target 1: Halve, between 1990 and 2015, the proportion of
    people whose income is less than one dollar a day.

    Target 2: Halve, between 1990 and 2015, the proportion of
    people who suffer from hunger.

    Goal 2. Achieve universal primary education

    Target 3: Ensure that, by 2015, children everywhere, boys and
    girls alike, will be able to complete a full course of primary schooling.

    Goal 3. Promote gender equality and empower women

    Target 4: Eliminate gender disparity in primary and secondary
    education, preferably by 2005, and in all levels of education no later than
    2015.

    Goal 4. Reduce child mortality

    Target 5: Reduce by two thirds, between 1990 and 2015, the
    under-five mortality rate.

    Goal 5. Improve maternal health

    Target 6: Reduce by three quarters, between 1990 and 2015,
    the maternal mortality ratio.

    Goal 6. Combat HIV/AIDS, malaria and other diseases

    Target 7: Have halted by 2015 and begun to reverse the spread
    of HIV/AIDS.

    Target 8: Have halted by 2015 and begun to reverse the
    incidence of malaria and other major diseases.

    Goal 7. Ensure environmental sustainability

    Target 9: Integrate the principles of sustainable development
    into country policies and programmes and reverse the loss of environmental
    resources.

    Target 10: Halve, by 2015, the proportion of people without
    sustainable access to safe drinking water and sanitation.

    Target 11: By 2020, to have achieved a significant
    improvement in the lives of at least 100 million slum dwellers.

    Goal 8. Develop a global partnership for development

    Target 12: Develop further an open, rule-based, predictable,
    non-discriminatory trading and financial system. Includes a commitment to good
    governance, development and poverty reduction - both nationally and
    internationally.

    Target 13: Address the special needs of the least developed
    countries. Includes: tariff and quota-free access for least developed countries'
    exports; enhanced programme of debt relief for heavily indebted poor countries
    (HIPC) and cancellation of official bilateral debt; and more generous ODA for
    countries committed to poverty reduction.

    Target 14: Address the special needs of landlocked developing
    countries and small island developing States (through the Programme of Action
    for the Sustainable Development of Small Island Developing States and the
    outcome of the twenty-second special session of the General Assembly).

    Target 15: Deal comprehensively with the debt problems of
    developing countries through national and international measures in order to
    make debt sustainable in the long term
    Some of the indicators listed below
    are monitored separately for the least developed countries (LDCs), Africa,
    landlocked developing countries (LLDCs) and small island developing States
    (SIDS).

    Target 16: In cooperation with developing countries, develop
    and implement strategies for decent and productive work for youth.

    Target 17: In cooperation with pharmaceutical companies,
    provide access to affordable essential drugs in developing countries.

    Target 18: In cooperation with the private sector, make
    available the benefits of new technologies, especially information and
    communications.

    The Millennium Declaration agreed on a series of ‘fundamental values to
    be essential to international relations in the twenty-first century’ which
    underpinned the commitments made in the Declaration, including the MDGs. These
    agreed values are:

    • Freedom. Men and women have the right to live their lives and raise
      their children in dignity, free from hunger and from the fear of violence,
      oppression or injustice. Democratic and participatory governance based on the
      will of the people best assures these rights.
    • Equality. No individual and no nation must be denied the opportunity
      to benefit from development. The equal rights and opportunities of women and men
      must be assured.
    • Solidarity. Global challenges must be managed in a way that
      distributes the costs and burdens fairly in accordance with basic principles of
      equity and social justice. Those who suffer or who benefit least deserve help
      from those who benefit most.
    • Tolerance. Human beings must respect one other, in all their
      diversity of belief, culture and language. Differences within and between
      societies should be neither feared nor repressed, but cherished as a precious
      asset of humanity. A culture of peace and dialogue among all civilizations
      should be actively promoted.
    • Respect for nature. Prudence must be shown in the management of all
      living species and natural resources, in accordance with the precepts of
      sustainable development. Only in this way can the immeasurable riches provided
      to us by nature be preserved and passed on to our descendants. The current
      unsustainable patterns of production and consumption must be changed in the
      interest of our future welfare and that of our descendants.
    • Shared responsibility. Responsibility for managing worldwide economic
      and social development, as well as threats to international peace and security,
      must be shared among the nations of the world and should be exercised
      multilaterally. As the most universal and most representative organization in
      the world, the United Nations must play the central
      role.[85]

    The Millennium Declaration also reaffirmed the commitment of all
    Member States to the purposes and principles of the Charter of the United
    Nations, and rededicated States to support all efforts to uphold, inter
    alia
    , respect for human rights and fundamental freedoms, and respect for the
    equal rights of all without distinction as to race, sex, language or
    religion.

    These guiding principles and commitments are repeated here as they indicate
    that the purposes of the Millennium Summit, as encapsulated in the MDGs, are
    intended to apply and to benefit all people. This is in accordance with
    the understanding that human rights are universal, inalienable and
    indivisible.

    It is important to recall this, as the focus in implementing the MDGs to date
    has been almost exclusively on the developing world.

    The role of developed nations in implementing the MDGs has focused on
    ‘making the case for aid and for urgent debt relief; ensuring that aid is
    allocated to sectors and services relevant to the Millennium Development Goals;
    and opening markets more widely to developing countries, especially the least
    developed countries’.[86] The
    MDGs have been treated by developed nations as a matter of foreign policy and
    not as a series of goals and targets to which they are committed to meeting
    within their own borders and for their own people.

    Accordingly, the initial implementation phase of the MDGs has overlooked the
    relevance and importance of the goals for indigenous peoples within developed
    countries, including Australia.

    Text Box 6 – The Millennium Development Goals and
    Australia
    [87]

    1. Indigenous peoples in Australia suffer significant disparities in the
      enjoyment of economic, social and cultural rights, as reflected in several of
      the MDGs (particularly goals 2 (universal primary education), 4 (child
      mortality), 5 (maternal health) and 6 (HIV/AIDS, malaria and other diseases)).
    2. These disparities tend to be masked at the international level due to the
      lack of disaggregation of data? and the comparative high level of enjoyment of
      rights by non-Indigenous Australians. As an example, the 17 year life expectancy
      gap between Indigenous and non-Indigenous Australians is not given proper
      acknowledgement internationally such as through the World Development Report as
      this data is not disaggregated in the World Development Index.
    3. As a result, there is insufficient recognition that there are challenges for
      meeting the MDGs for Indigenous peoples in Australia. Concern was expressed that
      Australia treats the MDGs as a matter of foreign policy, relevant only to
      Australia’s international aid programme.
    4. Related to these issues, concern was expressed that the MDGs do not
      ‘capture’ the systemic discrimination and marginalisation that is
      experienced by Indigenous peoples in Australia and in other countries. The MDGs
      need to be made more culturally relevant to indigenous peoples so that they
      address those issues that affect indigenous peoples, such as loss of land,
      identity, language, disempowerment, captivity and stolen generations.
    5. There is currently an absence of mechanisms in Australia for Indigenous
      peoples to be active participants in the planning, design, implementation,
      monitoring and evaluation of policies, programmes and projects. This is
      particularly the case with the absence of Indigenous representative structures
      at a national and regional level.
    6. There is a need for Australian governments to adopt a human rights based
      approach to development to underpin poverty eradication strategies. This
      requires recognition of Indigenous peoples as distinct peoples and the respect
      for their individual and collective human rights.
    7. The meeting noted that Indigenous peoples have the right to full and
      effective participation in decisions which directly or indirectly affect their
      lives. Such participation should be based on the principle of free, prior and
      informed consent.

    Recommendations:

    1. That the PFII emphasise that the achievement of Millennium
      Development Goals is an objective for all States, not just some States.
      It
      is not justified for some States to take the view that, because they are
      ‘developed’ States, they do not have targets to achieve. States
      with Indigenous Peoples, such as Australia, have much to achieve under the
      Millennium Development Goals.
    2. That the PFII recommend that States work in partnership with Indigenous
      Peoples to identify key indicators and goals that are culturally relevant to
      Indigenous Peoples to measure progress in the implementation of the Millennium
      Development Goals.
    3. That the PFII recommend that the Millennium Development Goals are
      implemented in a manner consistent with the Programme of Action for the Second
      Decade of the World’s Indigenous People,
      to ensure both programs are
      working together for successful outcomes for Indigenous Peoples in their
      communities.
    4. In the implementation of the Second Decade Program of Action, there must
      be agreed ‘plans of action’ designed and implemented at the national
      level, as recommended in Paras. 91 – 99 of the Programme. Such plans must
      be pursued by tri-partite partnership by Indigenous Peoples, States and
      country-based UN and international agencies.

    Specifically in relation to Goals 4 – 6, the following
    comments were noted relating to Aboriginal and Torres Strait Islander
    health.

    In Australia, unacceptable health disparities persist between Aboriginal
    and Torres Strait Islander (Indigenous) peoples and non-Indigenous Australians.
    The significance and extent of these disparities is most often lost when
    Australia provides health statistics and social data to international reporting
    bodies and other agencies, as the relatively small proportions represented by
    Indigenous specific data (where available) is swamped by the overall health, and
    improving outcomes, for the population as a whole.

    This longstanding and entrenched inequality constitutes a threat to the
    survival of Aboriginal and Torres Strait Islander peoples, their languages and
    cultures, and does not provide Aboriginal and Torres Strait Islander peoples
    with the ability to live safe, healthy lives in full human dignity.

    A rights based approach to health programming is essential to achieve
    lasting improvements in Indigenous health within the shortest possible timeframe
    and on a basis of equality. At present, Aboriginal and Torres Strait Islander
    peoples do not receive equality of opportunity in the provision of primary
    health care services and health infrastructure.

    A rights based approach requires the adoption of a holistic understanding
    of Indigenous health, which addresses physical, spiritual, cultural, emotional
    and social well-being, community capacity and governance.

    There are significant disparities in under-5 year old mortality rates for
    Indigenous infants in Australia. While these rates are not as high as for
    infants in developing nations, the disparities in morbidity and mortality from
    largely preventable illness and infectious diseases are disproportionately high.
    Low birth weight, poor nutritional status and failure to thrive contribute to a
    cycle of impaired development, suboptimal immune status and increased
    susceptibility to infections. There is also an increasing body of evidence that
    suggests early childhood diseases and nutritional disadvantage are significant
    antecedents to the development of chronic disease in later life.

    Recommendations (extract only)

    1. That the UNPFII encourage governments to incorporate the principles of
      the MDGs into domestic policy for indigenous peoples in order to facilitate and
      accelerate the reduction in disparities for health and social justice
      indicators. There is also a need for the development of culturally appropriate
      and country specific targets, which reflect the circumstances of indigenous
      peoples.
      Many developed countries, including Australia, treat the Millennium
      Development Goals as foreign policy, with no consideration given to the
      potential for operationalising these international principles on a domestic
      level.
    2. That the UNPFII promote a human rights based approach
      to development and fully incorporate the right to health as a tool to progress
      and strengthen policy formulation and service implementation, in order to
      improve health outcomes for indigenous populations.
    3. That the PFII encourage States to establish, with the
      effective participation of indigenous peoples, specific timelines, benchmarks
      and targets for the achievement of indigenous health equality. These should be
      based on performance indicators, disaggregated by region and indigenous status.
      Governments should be required to provide regular reports to the PFII (and other
      appropriate national and international agencies, particularly the
      WHO).
    4. Given the global similarities in health outcomes for
      indigenous peoples, UN agencies and WHO should prioritise the establishment of
      specific procedures and mechanisms for addressing indigenous health, and for
      monitoring outcomes at the country level.

    Text Box 6 extracts the comments of Indigenous delegates from Australia that
    were presented to the Permanent Forum on Indigenous Issues on the difficulties
    in implementing the MDGs in the Australian context.

    The Permanent Forum on Indigenous Issues, in exercising its role of
    coordinating UN activity on Indigenous issues, has focused on the application of
    the MDGs to indigenous peoples. In 2002 it established the Inter-Agency Support
    Group on Indigenous Issues (IASG). This is an ongoing Group comprised of the
    various UN agencies and funds, which meets annually in order to support and
    promote the mandate of the Permanent Forum within the UN system. The IASG has
    provided important analysis of the application of the MDGs to the situation of
    Indigenous peoples.

    In its 2004 workshop report, the IASG noted the following concerns about the
    MDG process as it has applied to indigenous peoples to date:

    The Support Group considers that indigenous and tribal peoples have the right
    to benefit from the Millennium Development Goals, and from other goals and
    aspirations contained in the United Nations Millennium Declaration, to the same
    extent as all others. However, as the 2005 review of the implementation of the
    Millennium Development Goals nears, it appears from the available evidence that
    indigenous and tribal peoples are lagging behind other parts of the population
    in the achievement of the goals in most, if not all, of the countries in which
    they live, and indigenous and tribal women commonly face additional gender-based
    disadvantages and discrimination.

    Detailed information and statistics describing their situation are often
    lacking... Lack of adequate disaggregated data is a problem for the achievement
    of the Millennium Development Goals. Nevertheless, the information available
    — both statistics that do exist and experience acquired in the course of
    our work — indicates that these peoples rank at the bottom in terms of the
    social indicators in virtually every respect.

    Concern has also been expressed that the effort to meet the targets laid down
    for the achievement of the Millennium Development Goals could in fact have
    harmful effects on indigenous and tribal peoples, such as the acceleration of
    the loss of the lands and natural resources on which indigenous peoples’
    livelihoods have traditionally depended or the displacement of indigenous
    peoples from those lands.

    Because the situation of indigenous and tribal peoples is often not reflected
    in statistics or is hidden by national averages, there is a concern that efforts
    to achieve the Millennium Development Goals could, in some cases, have a
    negative impact on indigenous and tribal peoples while national indicators
    apparently improve.

    While the Millennium Development Goals carry a potential for assessing the
    major problems faced by indigenous peoples, the Millennium Development Goals and
    the indicators for their achievement do not necessarily capture the
    specificities of indigenous and tribal peoples and their visions. Efforts are
    needed at the national, regional and international levels to achieve the
    Millennium Development Goals with the full participation of indigenous
    communities — women and men — without interfering with their
    development paths and their holistic understanding of their needs. Such efforts
    must take into account the multiple levels and sources of the discrimination and
    exclusion faced by indigenous
    peoples.[88]

    The Permanent Forum on Indigenous Issues has also argued that:

    indigenous peoples... are often the most marginalized populations in society,
    deprived of their right to development, including access to education,
    healthcare, water and participation in policy processes affecting their lives.
    It is clear that, the indicators of achieving the MDGs must be reviewed to
    capture the specificities of indigenous and tribal peoples and their
    visions.[89]

    These concerns were re-iterated at the launch of the Second International
    Decade of the World’s Indigenous People in New York in May
    2006.[90]

    Ms Mililani Trask, representing the Global Indigenous Peoples’ Caucus,
    noted that ‘the effort to meet the targets laid down for MDGs could in
    fact have harmful effects for indigenous peoples such as the acceleration of
    loss of lands and natural resources or the displacement from those lands.’
    She argued that the MDG indicators need to be redefined to be relevant to
    indigenous peoples by taking into consideration:

    culturally appropriate indicators, redefining the process of impoverishment
    caused by dispossession of ancestral lands, loss of control over natural
    resources and indigenous knowledge, devastating social and environmental
    impacts, impacts from militarization and conflict and forced assimilation into
    the mainstream society and integration into the market
    economy.[91]

    She also stated that:

    The current MDG poverty indicator of living with $1/day cannot capture nor
    adequately reflect poverty as perceived by Indigenous Peoples'. Poverty
    alleviation must start from Indigenous Peoples own definitions and indicators of
    poverty. Governments speak of ‘poverty’ while Indigenous Peoples
    speak of ‘rights’. Within indigenous territories, poverty is also
    defined by power deficits, lack of self-determination, marginalization and lack
    of mechanisms for meaningful participation and access to decision-making
    processes...

    The human-rights based approach to development is essential to the
    achievement of the MDGs. The MDGs must therefore be firmly grounded on a
    rights-based approach, to have meaning for Indigenous
    Peoples.[92]

    The report of the fifth session of the Permanent Forum (conducted in 2006)
    states that:

    there is a clear need to redefine approaches to the implementation of the
    Goals so as to include the perspectives, concerns, experiences and world views
    of indigenous peoples. Statements also confirmed that there was a need for
    indigenous peoples to provide their own definitions of poverty and development
    and that there should be full and effective participation of indigenous peoples
    in the implementation of the
    Goals.[93]

    The Permanent Forum also recommended that:

    self-determination, free, prior and informed consent and accountability form
    the basis of, and prerequisite for, any relationship that can be called a true
    partnership for development, and urges all States, indigenous peoples, United
    Nations bodies, international development agencies, corporations and the private
    sector, as well as civil society, to uphold these vital
    principles.[94]

    The Permanent Forum have identified that the next step in redressing these
    concerns is to facilitate processes for indigenous peoples ‘to identify
    gaps in existing indicator frameworks, examine linkages between quantitative and
    qualitative criteria, and propose the development of indicators that are
    culturally-specific, measure exclusion, and reflect the aspirations of
    indigenous peoples’.[95]

    To date, they have convened two regional meetings to progress this: one for
    the Latin American and Caribbean region (held at Puerto Cabezas, Nicaragua in
    September 2006)[96] and the other in
    Ottawa, Canada in March 2006 focusing specifically on the situation of
    indigenous peoples in developed countries, including
    Australia.[97]

    The Ottawa meeting identified numerous challenges at the national and
    international level in developing appropriate indicator frameworks and linking
    these to the Millennium Development Goals. They noted that:

    • The purpose of data collection and indicators is to ensure that States are
      meeting their constitutional and legal responsibilities towards indigenous
      peoples. States can tend to focus on developing indicators, but not focus
      sufficiently on the interventions required to meet targets tied to indicators.
      Indicators development should ultimately result in benefits to indigenous
      peoples by informing linkages between program outputs to outcomes. This is
      consistent with international standards and the human rights principle of
      progressive realization of economic, social and cultural rights.
    • Indicators must place significant emphasis on indigenous peoples’
      inherent values, traditions, languages, and traditional orders/systems,
      including laws, governance, lands, economies etc. Collection of data and
      development of indicators should, therefore, also represent indigenous
      peoples’ perceptions and understanding of well-being. It was noted,
      however, that not everything relating to indicators development undertaken by
      governments is relevant to indigenous peoples and not everything that indigenous
      peoples perceive can be measured.
    • Indicators should also focus on the interplay between indigenous and
      non-indigenous systems (social, political and economic, colonization,
      industrialization) that result in a series of impacts, such as racism and
      discrimination, migration to urban centre’s, youth suicide and
      disconnection to land and culture.
    • Indicators that demonstrate inequities and inadequacies in government
      funding for indigenous peoples’ programming and services should also be
      developed. This data can be illuminating by linking funding levels to mandated
      areas of government responsibility, assessing their accountability and
      projecting demand and other impacts into the future.
    • There should be a balance of comparative indicators to assess well-being
      among non-indigenous and indigenous peoples, and indigenous-specific indicators
      based on indigenous peoples’ visions and understandings of
      well-being.[98]

    The Workshop recommended that ‘the United Nations should
    identify and adopt appropriate indicators of indigenous identity, lands, ways of
    living, and indigenous rights to, and perspectives on, development and
    well-being’ and that these indicators should by applied in performance
    measurement and monitoring processes by the UN system, as well as its member
    States, intergovernmental organizations and other development
    institutions.[99]

    Accordingly, the Workshop proposed a series of indicators that could be
    further considered at the national and international level based on the two key
    themes of:

    • Identity, Land and Ways of Living; and
    • Indigenous Rights to, and Perspectives on, Development.

    The Workshop noted that ‘more exact indicators need to be
    developed in a measurable form, with full participation by indigenous peoples
    from all regions’.[100] The
    proposed indicators relate to the following issues:

    • Maintenance and development of Traditional Knowledge, Traditional Cultural
      expressions and practices;
    • Use and intergenerational transmission of indigenous languages;
    • Support of, and access to, bilingual, mother tongue, and culturally
      appropriate education;
    • Ownership, access, use, permanent sovereignty of lands, territories, natural
      resources, waters;
    • Health of communities – including community safety, community
      vitality, and support for safe and culturally appropriate infrastructure;
    • Health of ecosystems;
    • Patterns of migration;
    • Indigenous governance and management systems;
    • Free, prior, informed consent, full participation and Self-determination in
      all matters affecting indigenous peoples’ well-being;
    • Degree of implementation/compliance with international standards and
      agreements relating to indigenous peoples’ rights; and
    • Government funding for indigenous peoples’ programs and
      services.[101]

    Within the Australian context, there exist detailed indicator
    frameworks for various sectors. Most important among these is the Overcoming
    Indigenous Disadvantage Framework
    , as endorsed by the Council of Australian
    Governments.[102]

    The Steering Committee for Government Service Provision, which produces the
    biennial Overcoming Indigenous Disadvantage Report against the indicator
    framework, has noted difficulties and data limitations in presenting some areas
    of the framework. Importantly, these include the identification of alternative
    indicators ‘that would more clearly reflect outcomes for Indigenous
    people’ and the adequacy of indicators for measuring Indigenous culture
    and health.[103]

    In particular, the Committee has undertaken consultations, including with
    Indigenous peoples to identify ways of improving the following current
    indicators relating to Indigenous culture:

    • Indigenous cultural studies in school curriculum and involvement of
      Indigenous people in development and delivery of Indigenous studies;
    • Proportion of people with access to their traditional lands;
    • Participation in organised sport, arts or community group activities;
      and
    • Governance arrangements.

    It has also identified potential additional indicators relating to
    heritage, language and recognition of Indigenous culture and
    law.[104]

    Guidance is provided in addressing these difficult issues through the Ottawa
    Workshop’s proposed indicators of indigenous identity, lands, ways of
    living, and indigenous perspectives on development and well-being.

    The focus at the UN level, primarily due to the efforts of the Permanent
    Forum on Indigenous Issues, is firmly on ensuring that Indigenous peoples are
    able to enjoy the benefits of the Millennium Development Goals process through
    international efforts and domestic action. The process of developing a series of
    culturally based indicators to complement the MDGs is underway at the
    international level, and will continue to gain prominence in the coming years.

    These developments provide valuable guidance in assessing the appropriateness
    of indicator frameworks within Australia; as well as assessing the policy basis
    of program interventions by governments, so as to establish whether they are
    consistent with a rights based approach to development and sufficiently target
    overcoming existing inequalities in the enjoyment of rights by Indigenous
    peoples in Australia.

    • The Second International Decade of the World’s Indigenous
      People

    On 20 December 2004, the UN General Assembly proclaimed the Second
    International Decade of the World’s Indigenous People (the Second Decade).
    The Second Decade commenced on 1 January 2005 and runs until 2015. It provides a
    focal point for all UN activity on Indigenous peoples over the next decade, as
    well as the efforts of governments through international cooperation and within
    countries.

    The Decade follows on from the International Year for the World’s
    Indigenous People in 1994 and the 1st International Decade of the
    World’s Indigenous People which took place from 1995 - 2004.

    While there had been some notable positive developments during the
    1st International Decade (such as the establishment of the Permanent
    Forum and the creation of the role of Special Rapporteur on Indigenous Issues),
    there was widespread concern that this progress was not sufficient to meet the
    objectives of the 1st Decade.[105]

    In particular, indigenous peoples were concerned at the slow progress of
    action within the UN to implement the 1st Decade’s objectives
    (primarily due to financing restraints) as well as limited actions at the
    national level. One of the primary objectives of the 1st Decade was
    not met – namely, the finalisation and adoption of the Declaration on the
    Rights of Indigenous Peoples.

    In establishing the Second Decade, the UN General Assembly expressed its
    concern at ‘the precarious economic and social situation that indigenous
    people continue to endure in many parts of the world in comparison to the
    overall population and the persistence of grave violations of their human
    rights’, and reaffirmed ‘the urgent need to recognize, promote and
    protect more effectively their rights and
    freedoms’.[106]

    Accordingly, the preliminary focus in establishing the goal and objectives of
    the Second Decade has been on ensuring that the commitments made by governments
    and the UN are action-oriented and focused on implementation.

    The Permanent Forum has stated its intention to use its coordination role
    within the UN to promote an integrated approach to the Second Decade and the
    MDGs, so that they are complementary and mutually reinforcing. The Program of
    Action for the Second Decade also notes:

    that given that the time frame for the implementation of the Millennium
    Development Goals is the same as that of the Second Decade, the MDGs and the
    Permanent Forum’s focus and recommendations on them should also inform the
    plan of action for the Second
    Decade.[107]

    The Program of Action for the Second International Decade of the
    World’s Indigenous People was approved by consensus by the UN General
    Assembly on 21 November 2005. The approval of the Program of Action followed
    extensive consultations on a draft
    program.[108]

    A copy of key provisions of the Program of Action for the Decade is included
    as Appendix 4 to this report. The goal and objectives of the Second
    Decade are set out in Text Box 7 below.

    Text Box 7 – The goal and objectives of the Second
    International Decade of the World’s Indigenous
    People
    [109]

    Goal

    The goal of the Second Decade is the further strengthening of
    international cooperation for the solution of problems faced by indigenous
    people
    in such areas as culture, education, health, human rights, the
    environment and social and economic development, by means of action-oriented
    programmes and specific projects, increased technical assistance and relevant
    standard-setting activities.

    Themes

    Proposed mottos for the Second Decade are “Partnership for further
    action”, “Human rights in practice”, “Engagement for
    action” and “Agenda for life”.

    Objectives

    The Program of Action for the Second Decade approves five key objectives for the Decade. These are:

    1. Promoting non-discrimination and inclusion of indigenous peoples in the
      design, implementation and evaluation of international, regional and national
      processes regarding laws, policies, resources, programmes and projects.
    2. Promoting full and effective participation of indigenous peoples in
      decisions which directly or indirectly affect their lifestyles, traditional
      lands and territories, their cultural integrity as indigenous peoples with
      collective rights or any other aspect of their lives, considering the principle
      of free, prior and informed consent.
    3. Redefining development policies that depart from a vision of equity and that
      are culturally appropriate, including respect for the cultural and linguistic
      diversity of indigenous peoples.
    4. Adopting targeted policies, programmes, projects and budgets for the
      development of indigenous peoples, including concrete benchmarks, and particular
      emphasis on indigenous women, children and youth.
    5. Developing strong monitoring mechanisms and enhancing accountability at the
      international, regional and particularly the national level, regarding the
      implementation of legal, policy and operational frameworks for the protection of
      indigenous peoples and the improvement of their lives.

    The five key objectives cut across the various areas of the goal
    for the Decade (health, human rights etc). The five objectives also cut across
    the means set by the General Assembly for the achievement of the goal, namely
    action-oriented programmes and specific projects, increased technical assistance
    and relevant standard-setting activities.

    The adoption of these objectives and the Program of Action by consensus is
    significant. Australia, for example, has agreed to work within this framework
    in its international cooperation activities as well as its domestic advancement
    of Indigenous issues.

    In the discussion in the General Assembly following the adoption of the
    Program of Action for the Decade, Australia made a statement clarifying its
    position on the Decade. The statement provides Australian Government’s
    agreement to the Program of Action, while noting the following:

    6. Ms. Nassau (Australia) said that, while her delegation supported
    the Second International Decade of the World’s Indigenous People and
    initiatives to raise the profile of indigenous people internationally, such as
    the Permanent Forum on Indigenous Issues, it disagreed with some elements of the
    Programme of Action for the Second Decade (A/60/270). Her delegation could not
    agree to encourage States to ratify the draft convention on the protection of
    the diversity of cultural contents and artistic expressions, as stated in
    paragraph 14 of the Programme, as it had concerns that that might allow States
    to implement measures which conflicted with their obligations under other
    international agreements, particularly on trade and intellectual property. Her
    delegation was also concerned by the extensive references to the undefined
    principle of free, prior and informed consent.

    7. She noted a factual error in paragraph 58 of the Programme of Action
    regarding the Convention on Biological Diversity and the Cartagena Protocol on
    Biosafety. The reference to “protection” should be amended to read
    “respect, preservation and maintenance” in keeping with article 8
    (j) of the Convention. Notwithstanding those points, Australia would join the
    consensus on the draft resolution, which reflected its commitment to advancing
    indigenous issues over the coming
    decade
    .[110]

    The Program of Action proposes a range of activities in relation to
    culture, education, health, human rights, the environment and social and
    economic development.[111] These
    are divided up into activities at the international and the national levels, as
    well as activities aimed at Indigenous Peoples Organisations. These are
    reproduced in Appendix 4 of this report.

    The Program of Action also outlines a series of mechanisms for implementing
    and monitoring progress on the Second
    Decade.[112] These include that:

    • All agencies (including UN agencies, governments, indigenous and
      non-government organisations) adopt plans of concrete activities with specific
      benchmarks to implement the goal, objectives and programme of action of the
      Second Decade, and to do so on a basis of gender equality.
    • All activities should be undertaken on the basis of the full and effective
      participation of indigenous peoples. It is suggested that indigenous
      organizations should establish a council of indigenous peoples in each region or
      subregion at the international level with a mandate of evaluating on an ongoing
      basis the degree to which the goal, objectives and programme of action of the
      Second Decade are being realized.
    • Similar Committees of indigenous peoples should be established at the
      national and local level to monitor the implementation of the programme of
      action domestically.
    • It is recommended that Governments should establish national focal points on
      indigenous issues and on the Second Decade and intensify coordination and
      communication at the national level among relevant ministries, agencies and
      local authorities.
    • It is recommended that tri-partite committees should be established at the
      country level composed of governments, indigenous peoples and United Nations
      country offices to promote implementation of the objectives of the Second
      Decade.

    What should be clear from the Program of Action is that governments
    are expected to promote the achievement of the objectives of the Second Decade
    through both international means, as well as their domestic activities.

    These objectives and agreed actions were ultimately adopted by consensus. All governments, including Australia, have taken on
    commitments to advance the Second Decade on the basis of mutual respect and in
    good faith.

    Efforts by the Australian government since it made this commitment have been
    extremely poor. The new arrangements at the federal government level for the
    delivery of services to Indigenous peoples provides a vehicle for advancing the
    objectives and activities contained within the Second Decade’s Program of
    Action in a coordinated manner (as proposed above). The current lack of
    engagement by the federal government on the Second Decade and proposed ways of
    addressing this are discussed later in this chapter.

    Overall, the objectives and Program of Action of the Second Decade provide a
    focused framework for achieving the protection of the rights of indigenous
    peoples internationally and domestically over the coming decade.

    It highlights important principles for the process of engaging with
    indigenous peoples (on a non-discriminatory basis, with recognition of the
    distinct cultures of indigenous peoples and on the basis of the full and
    effective participation of indigenous peoples in decision making), as well as
    focusing on the achievement of outcomes for improving the currently
    parlous state of enjoyment of human rights by indigenous peoples (with targets
    and benchmarks for achievement, and strong monitoring and accountability
    mechanisms conducted in partnership with Indigenous peoples).

    As noted above, there are also currently concerns about the lack of focus on
    the implementation of the MDGs in developed countries despite the clear
    application of these goals to the situation of indigenous peoples (and clear
    statements about the universality of the outcomes sought through the MDG
    process).

    The timing for achievement of the MDGs aligns with the timing for the Program
    of Action for the Second Decade. The commitments made through the Second Decade
    provide a further opportunity to ensure that efforts to address the MDGs also
    specifically emphasise the particular concerns and issues faced by indigenous
    peoples.

    The combination of these two frameworks – the MDGs and the Second
    Decade – provide a powerful tool to assist in policy development and
    program planning over the coming years.

    3) Developments in recognition of the rights of Indigenous
    Peoples

    The advocacy of indigenous peoples at the international level can
    broadly be categorised as addressing the following inter-related purposes:

    1. Ensuring processes exist at the international level for the direct
      engagement and effective participation of indigenous peoples
      , so that we
      have a direct role in determining priorities at the international level for the
      recognition and protection of our rights;
    2. Ensuring that UN programs and existing human rights obligations are
      accessible to us,
      in other words, to ensure that we actually benefit from UN
      activity (such as through the implementation of the MDGs) and that governments
      faithfully implement their human rights obligations so that we are able to enjoy
      our rights on an equal basis to all other members of society; and
    3. Ensuring that our distinct cultural characteristics as indigenous peoples
      are recognised and protected in international law.

    The first of these purposes is integral to the achievement of the
    other two – the direct participation of indigenous peoples plays a central
    role in ensuring that policies and programs are appropriately targeted and
    meeting the actual needs of indigenous communities.

    The second of these purposes can be progressed through a focus on closing the
    implementation gap that exists between the situation of indigenous peoples and
    the application of existing standards and programs to this situation.

    The third purpose, however, requires more than the application of existing
    programs and human rights standards to the situation of indigenous peoples. It
    requires the identification and elaboration of specific forms of protection that
    are required for Indigenous peoples if we are to fully enjoy all of our human
    rights.

    In other words, it requires the recognition of specific human rights
    standards for indigenous
    peoples.[113]

    The recognition of human rights standards that are specific to indigenous
    peoples has been, and continues to be, controversial. There are, however,
    precedents for the recognition of specially elaborated human rights standards
    that should be remembered and which place this controversy into perspective.

    As noted by Asjborn Eide and Erica-Irene Daes, there are four categories of
    human rights that have emerged in the international human rights system to date.
    These are:

    1. The general, [individual]... human rights to which everyone is
      entitled
      , found in the Universal Declaration on Human Rights and elaborated
      in subsequent instruments, such as the two International Covenants of
      1966...
    2. The additional rights specific to persons belonging to national or
      ethnic, religious or linguistic minorities
      , found in article 27 of the
      International Covenant on Civil and Political Rights (ICCPR), the Declaration on
      the Rights of Persons belonging to National or Ethnic, Religious or Linguistic
      Minorities ("Minority Declaration"), and in several regional instruments dealing
      with the rights of persons belonging to minorities. They are formulated as
      rights of persons and therefore individual rights. States (do, however,) have
      some duties to minorities as
      collectivities...[114]

      Special minority rights can be claimed by persons belonging to
      national or ethnic, linguistic or religious minorities, but also by persons
      belonging to indigenous peoples. The practice of the Human Rights Committee
      under article 27 of the ICCPR bears this
      out...[115]

    3. The special rights of indigenous peoples and of indigenous
      individuals, found in the ILO Convention concerning Indigenous and Tribal
      Peoples in Independent Countries (No. 169) and - if and when adopted - in the
      draft Declaration on the Rights of Indigenous Peoples, adopted by the Working
      Group on Indigenous Populations (WGIP) in 1993 and now before the Commission on
      Human Rights. They are mostly rights of groups ("peoples") and therefore
      collective rights...[116]

      The rights of indigenous peoples, which, under present
      international law, are found only under ILO Convention No. 169, can only be
      asserted by persons belonging to indigenous peoples or their representatives.
      Members of non-indigenous minorities cannot assert the(se) rights
      ...[117]

    4. The rights of peoples as provided for in common article 1 to the two
      International Covenants
      of 1966. These are solely collective
      rights...[118] There is still no
      consensus as to which collectivities are the beneficiaries of the right to
      self-determination under article
      1.[119]

    The specific rights of minorities and indigenous peoples in
    categories b) and c) above, are qualified by the requirement that their
    enjoyment shall not prejudice the enjoyment by all persons of the universally
    recognized human rights and fundamental freedoms (in category a) above).

    In other words, while there are specific rights to protect the distinct
    cultural characteristics of minorities and indigenous peoples there is no scope
    for them to do so to the detriment of other people or to impede the rights of
    individuals within those groups.

    Further, the International Council on Human Rights Policy has described the
    necessity for a particular group or category of people to have additional,
    specifically defined forms of recognition as due to the existence of
    ‘normative protection gaps’ in the international system. They
    explain this as follows:

    A “normative gap” exists when a recurrent event (or act or
    structural factor) deprives human beings of their dignity. Even when existing
    instruments provide protection in certain respects, in many cases a new or more
    comprehensive instrument is required to frame the rights of an affected group
    more clearly or in human rights terms. Such standards enable members of the
    group to protect their rights more effectively and clarify the duties of states
    at the same time.

    In this context, it is sometimes suggested that the first years of
    standard-setting generated foundation standards that applied to all human
    beings, whereas later standards provided more detailed protection to specific
    groups. The International Covenants adopted in 1966 protected women and children on the same terms as
    all people, for example. However, new instruments such as the Convention on
    the Elimination of All Forms of Discrimination against Women
    (CEDAW, 1979)
    and the Convention on the Rights of the Child (CRC, 1989) subsequently
    became necessary to (a) identify principles specific to the group (e.g. the best interest of the child), (b) recognise new rights (e.g. the
    right of children not to be separated from their parents against their will, or
    the reproductive rights of women), and (c) specify duties of States that were
    not defined clearly in the general instruments (e.g. the duty to
    eliminate stereotyped roles for men and women or the duty to ensure that
    discrimination against women does not occur in the private sphere, in addition
    to the public sphere).

    Disability might be an example of a current “normative gap” of
    this type. Existing human rights norms, notably the principle of
    non-discrimination, protect the rights of people with disabilities. However,
    welfare approaches to disability, combined with low awareness of human rights in
    public institutions, are so entrenched that it is reasonable to claim that the
    rights of people with disabilities are not properly protected. The Draft
    Comprehensive and Integral International Convention on the Protection and
    Promotion of the Rights and Dignity of Persons with Disabilities
    (Convention
    on the Rights of Persons with Disabilities) aims to fill this
    gap.[120]

    For many years, indigenous peoples have been arguing that they suffer from
    such a normative protection gap in the international human rights system.

    Indigenous peoples have suffered discrimination as a result of colonisation
    and dispossession, yet continue to maintain their status as distinct peoples.
    While Indigenous peoples are fully entitled to and protected by existing human
    rights standards, the reality is that these have not fully addressed the
    consequences of the violation of indigenous peoples rights in the past and have
    not been successful in protecting the cultures of indigenous peoples.

    The reason for this is that most human rights standards are individual in
    nature, and offer limited protection to the collective rights of indigenous
    peoples – such as to lands, territories and
    resources.[121]

    Accordingly, a process began over twenty years ago to elaborate specific
    human rights norms that are applicable to indigenous peoples. The UN Declaration
    on the Rights of Indigenous Peoples is the product of this process.

    An overview of the process leading to the creation of the Declaration is
    provided in the Social Justice Report
    2002
    .[122] The process by
    which the Declaration was negotiated is unique in that Indigenous peoples and
    States had an equal role in formulating the Declaration under the auspices of
    the Working Group on Indigenous Populations. For the past eleven years the
    Declaration has been negotiated through a Working Group on the Declaration
    established by the Commission on Human Rights. Ensuring equal participation of
    indigenous peoples and States has been a consistent feature of this process.

    The preamble of the Declaration identifies:

    that indigenous peoples have suffered from historic injustices as a result
    of, inter alia, their colonization and dispossession of their lands, territories
    and resources, thus preventing them from exercising, in particular, their right
    to development in accordance with their own needs and
    interests.[123]

    And that there is an:

    urgent need to respect and promote the inherent rights of indigenous peoples
    which derive from their political, economic and social structures and for their
    cultures, spiritual traditions, histories and philosophies, especially their
    rights to their lands, territories and
    resources.[124]

    The Declaration on the Rights of Indigenous Peoples seeks to elaborate the
    rights of indigenous societies at a collective level (i.e. in addition to the
    rights of indigenous individuals to existing human rights standards). As the
    preamble to the Declaration also states:

    Believing that this Declaration is a further important step forward
    for the recognition, promotion and protection of the rights and freedoms of
    indigenous peoples and in the development of relevant activities of the United
    Nations system in this field,

    Recognizing and reaffirming that indigenous individuals are entitled
    without discrimination to all human rights recognized in international law, and
    that indigenous peoples possess collective rights which are indispensable for
    their existence, well-being and integral development as peoples,

    The Declaration, as approved by the Human Rights Council, has 46 substantive
    articles and 23 preambular
    paragraphs.[125] It is divided
    into the following broad thematic areas:

    • Over-arching principles (Articles 1-6): The rights of indigenous
      peoples to the full enjoyment of all human rights, non-discrimination,
      self-determination and autonomy, maintenance of Indigenous institutions, and the
      right to a nationality.
    • Life, integrity and security (Articles 7-10): Freedom from genocide,
      forced assimilation or destruction of culture, forced relocation from land,
      right to integrity and security of the person, and right to belong to an
      indigenous community or nation.
    • Cultural, spiritual and linguistic identity (Articles 11 – 13):
      Rights to practice and revitalize culture and the transmission of histories,
      languages etc; and the protection of traditions, sites, ceremonial objects and
      repatriation of remains.
    • Education, information and labour rights (Articles 14-17): Right to
      education, including to run own educational institutions and teach in language;
      cultures to be reflected in education and public information; access to media
      (both mainstream and indigenous specific); and rights to protection of labour
      law and from economic exploitation.
    • Participatory, development and other economic and social rights (Articles 18-24): Rights to participation in decision-making, through
      representative bodies; rights to their own institutions to secure subsistence
      and development; special measures to be adopted to address indigenous
      disadvantage and ensure non-discriminatory enjoyment of rights; guarantees
      against violence and discrimination for women and children; right to
      development; and access to traditional health practices and medicines.
    • Land, territories and resources rights (Articles 25-32): rights to
      maintain traditional connections to land and territories; for ownership of such
      lands and protection of lands by State; establishment of systems to recognize
      indigenous lands; rights to redress and compensation for lands that have been
      taken; conservation and protection of the environment; measures relating to
      storage of hazardous waste and military activities on indigenous lands;
      protection of traditional knowledge, cultural heritage and expressions and
      intellectual property; and processes for development on indigenous land.
    • Indigenous institutions (Article 33 – 37): Rights to determine
      membership and to maintain institutions (including judicial systems), to
      determine responsibilities of individuals to their communities, to maintain
      relations across international borders, and right to the recognition of
      treaties, agreements and other constructive arrangements with States.
    • Implementation of the Declaration (Articles 38 – 42): States
      and UN agencies to implement the provisions of the Declaration, including
      through technical and financial assistance; access to financial and technical
      assistance for Indigenous peoples to implement the Declaration; and conflict
      resolution processes to be established that are just and fair.
    • General provisions of the Declaration (Articles 43-46): The
      provisions of the Declaration are recognized as minimum standards and apply
      equally to Indigenous men and women; the standards recognized in the Declaration
      may not be used to limit or diminish indigenous rights, and must be exercised in
      conformity with the UN Charter and universal human rights standards; the
      provisions in the Declaration to be interpreted in accordance with principles of
      justice, democracy, respect for human rights, equality, non-discrimination, good
      governance and good faith.[126]

    Text Box 8 below identifies the key features of the
    Declaration.

    Text Box 8 - Key features of the Declaration on the
    Rights of Indigenous
    Peoples
    [127]

    1. The Declaration affirms that indigenous peoples make a unique contribution
      to the diversity and richness of civilizations and cultures, which constitutes
      the common heritage of humankind. The Declaration promotes and enhances the
      plurality of societies.
    2. The Declaration is of utmost importance to combat discrimination against
      indigenous peoples created by more than five centuries of racism,
      marginalization and exclusion. The Declaration explicitly encourages harmonious
      and cooperative relations between States and indigenous peoples. Every
      provision of the Declaration will be interpreted consistent with the principles
      of justice, democracy, respect for human rights, non-discrimination and good
      faith.
    3. The Declaration is a reaffirmation of the commitment of the international
      community to respect cultural diversity and the right to be different.
    4. The Declaration is based upon principles of partnership, consultation and
      cooperation between indigenous peoples and States. This is fully consistent
      with the theme of Second International Decade of the World’s Indigenous
      People’s “Partnership for Action and Dignity” adopted by the
      UN General Assembly in 2005.
    5. The Declaration is an aspirational human rights instrument of great value
      for all. It establishes a valuable framework for resolving issues and achieving
      the common objectives of the international community and the UN Charter.
    6. The Declaration does not create new rights. It elaborates upon existing
      international human rights norms and principles as they apply to indigenous
      peoples.
    7. The Declaration promotes equality and non-discrimination for all. The
      Declaration is essential for the survival, dignity and well-being of indigenous
      peoples of the world.
    8. The Declaration strengthens the international human rights system as a
      whole.
    9. The Declaration recognizes the application of the right of
      self-determination to Indigenous peoples, exercised in conformity with
      international law and consistently with the Charter of the United Nations.
    10. The Declaration is among the first international human rights instruments to explicitly provide for the adoption of measures to ensure that indigenous
      women and children enjoy protection and guarantees against all forms of
      violence.

    Having initially been drafted by the five independent experts of the UN
    Working Group on Indigenous Populations, the Declaration had been approved by
    the Sub-Commission on the Protection and Promotion of Human Rights in 1994
    (after 9 years of consideration) and then sent forward for consideration by the
    Commission on Human Rights
    (CHR).[128]

    The CHR established a Working Group to consider the Draft Declaration in
    1995. The Working Group on the Draft Declaration met for 11 sessions from 1995
    – 2006, with a version of the Declaration ultimately adopted by the Human
    Rights Council (the replacement structure to the CHR) on 29 June
    2006.[129] At present, the
    Declaration is to be considered for approval and subsequently entry into force
    by the UN General Assembly during its current session (due to end in
    approximately September 2007).

    The conduct of the negotiation sessions of the Working Group on the Draft
    Declaration provides an important context to understand the current
    deliberations on the Declaration at the General Assembly level of the UN, and
    the position of the Australian government on the Declaration.

    The process leading to the approval of the Declaration by the Human Rights
    Council was difficult. The Working Group on the Draft Declaration operated on a
    consensus basis. In the first 9 years of negotiations, consensus was reached on
    2 out of 45 articles of the Declaration (with no consideration having been given
    to the preambular paragraphs of the draft Declaration).

    There were, however, major advances in the six weeks of negotiations that
    comprised the 10th and 11th session of the Working Group held between
    September 2004 and February 2006.

    At the 10th session, a group of countries (led by New Zealand and
    Norway) introduced an amended text for the Declaration for consideration in the
    negotiations. This text was intended to provide a ‘compromise’ that
    bridged the differing positions of governments and indigenous peoples into a
    revised version of the Declaration which they hoped would meet broad consensus.
    The introduction of this text, while of concern to most indigenous participants,
    provided a new dynamic in the negotiations to consider alternative wording for
    the Declaration.

    There was a significant focus during the 10th session on reaching
    consensus on a range of articles of the Declaration to demonstrate to the CHR
    that the process was making positive progress towards finalisation. By the end
    of the session, ‘broad agreement’ had been reached on 13 preambular
    paragraphs and 14 articles of the
    Declaration.[130] Some of these
    provisions were in their original form in the Declaration whereas others
    involved some changes to the text that the negotiations had revealed were
    broadly acceptable to governments and Indigenous organisations. Despite this
    progress, these provisions were not able to be provisionally adopted prior to
    the conclusion of the 10th negotiation session.

    As a consequence of this as well as the progress made on other provisions of
    the Declaration, the Chairman of the Working Group noted that significant
    progress had been made and differing positions were narrowing. On this basis, he
    stated that he was ready to make a contribution towards reaching consensus in
    the form of a ‘Chairman’s Text’ to be considered by the
    working group. The intention was to ‘capture the many good elements that
    had been brought forward during the session’ and to utilise these
    proposals as a ‘basis for further
    work’.[131]

    The ‘Chairman’s Text’ formed the basis of discussion at the
    11th session in December 2005 and January/February 2006. This text
    compared the original text of the Declaration with all the proposals made during
    the negotiation sessions. It then included the Chairman’s proposed text
    for each article based on his assessment of what was capable of meeting with
    consensus, as well as based on addressing the concerns of States in relation to
    the original provisions of the Declaration.

    The Chairman’s text was therefore comprised of a mixture of text from
    the original Declaration and new text based on the suggestions made during the
    negotiations (particularly at the 10th session). Discussions were
    focused on this text at the 11th (and final) session of negotiations
    in 2005 and 2006.

    Consensus was reached on the majority of the Declaration by the end of the
    11th session in February 2006. There were also numerous articles on
    which consensus was close, usually being prevented by only a few
    delegations.[132]

    The following provisions of the Declaration reached consensus:[133]

    • Preambular paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, 16, 17, 18, 18bis,
      and 19; and
    • Articles 1, 2, 4, 6, 7, 9, 14, 15, 16, 17, 18, 19, 22, 22bis, 23, 24, 37,
      40, 41, 42 and 44.[134]

    The Chairman noted that the following provisions were also
    extremely close to consensus:

    • Articles 12, 13 and 20;[135] and
    • Articles 10, 21, 26 bis, 28 bis and
      38.[136]

    He also noted that consensus was prevented on the following
    provisions due to concerns from usually one delegation in relation to the
    inclusion of just one word or phrase

    • Articles 32 and 34 (concerning the word ‘collective’); Article
      33 (concerning the word ‘spirituality’); and paragraph 2 of article
      35 (concerning the phrase ‘border control
      laws’).[137]

    The Chairman also noted that further negotiation was not required
    on the following provisions (although they were not finally agreed as some
    delegations would only accept these provisions if their concerns relating to
    other provisions were met):

    • Preambular paragraphs 8 and
      10,[138] 12, 14, 15 and
      15bis[139]; and
    • Preambular paragraphs 6 and 13 and Article 36 (with the exception of one
      governmental delegation that did not agree to the consensus on these
      provisions).[140]

    The Chairman summarised the outcomes in relation to the remaining
    provisions of the Declaration as follows:

    • Articles 3 and 31 (self-determination): ‘consensus could be reached
      (on Article 3) on the basis that article 31 be placed immediately after article
      3’.[141]
    • Article 45 (general provisions of the Declaration): the Chairman would
      provide ‘a compromise text on the basis of the proposal that emerged from
      the consultations’ during the
      session.[142]
    • Articles 25-30 (land and resources): the Chairman considered there was a
      ‘constructive outcome’ in the negotiations on Articles 28 and 29 and
      this would be reflected in the report; and ‘outstanding issues still
      remained regarding articles 25, 26, 27 and
      30’.[143]

    This summary shows the substantial consensus reached on the
    Declaration during the session. It also shows that the provisions on which there
    remained a lack of consensus (even where such consensus was held up by a small
    group of governments) are the most controversial provisions of the Declaration.
    These relate to self-determination, land and resource rights and what are known
    as the ‘general provisions’ of the Declaration.

    Notably, the Australian government was an active participant in the
    negotiations and was part of the consensus on the majority of the Declaration.
    The Australian government was also one of a handful of States that maintained
    objections to the proposed text of the provisions listed above (relating to
    self-determination, land and resource rights and the general provisions).

    At the end of the 11th session of negotiations, the Chairman
    informed the working group that he would be preparing a revised version of the
    Chairman’s Text which would reflect the consensus on provisions during the
    session, as well as including his revised ‘proposals regarding articles
    that were still pending, based on the discussions held during the
    sessions’.[144] He further
    noted that his revised Chairman’s Text ‘would be presented to the
    Commission on Human Rights with the hope that it would be considered as a final
    compromise text’ and be adopted accordingly.[145]

    It was indeed the revised Chairman’s Text that was adopted by the Human
    Rights Council (which had replaced the Commission on Human Rights) on 29 June
    2006.

    On the adoption of the Declaration by the Human Rights Council, the Global
    Indigenous Peoples Caucus made the following comments:

    The roots of the present Declaration go back to 1974. In 1977, the pivotal
    gathering of Indigenous peoples here at the United Nations prompted the world
    community to turn their attention to Indigenous Peoples in the Americas.

    We persisted in our efforts and remained vigilant against some of the most
    formidable state forces in the world.

    We relied upon our ability to engage in substantive debate, with positions
    that remain consistent with international law.

    One of the most important outcomes has been that throughout all of our
    expressions, sometimes in our own languages, we have succeeded in educating the
    international community about the status, rights and lives of indigenous peoples
    in every corner of world.

    The true legacy of the Declaration will be the way in which we, the
    indigenous peoples of the world, in partnership with States, breathe life into
    these words.

    The real test will be how this will affect the lives of our people on a daily
    basis.

    While these are distinct and fundamental individual and collective human
    rights, it is their implementation at the community level, which will have an
    impact and give our children hope for a future where their lives and identity
    will be respected globally.

    We express our wish as Indigenous Peoples for harmony in accordance with the
    natural world and hope that our multiple futures as Indigenous Peoples and
    States are brought together to embrace the positive contribution that we make to
    humankind.[146]

    Text Box 9 – The Declaration on the Rights of
    Indigenous Peoples is ‘a historic document, out of a historic
    process.’ Why the Declaration is
    important.
    [147]

    The following comments are extracted from a presentation by the Office
    of the High Commissioner for Human Rights on the Declaration on the Rights of
    Indigenous Peoples at a seminar convened in New York on 4 November
    2006.

    This is an historic development. The adoption of this instrument (by the
    Human Rights Council) represents a lot of years of work, by a lot of people. It
    has been a process that involved representatives of the indigenous community,
    delegations of Member States and NGOs, all working together - as is often the
    case in a human rights realm - to bring about some normative clarity on what is
    required.

    Kofi Annan, UN Secretary General, has made a point of his
    mission in the last two terms, to‘democratize’ the way the UN goes
    about its work. That is, leadership is firmly in the hands of the Member States,
    as represented by their delegations, and that other voices - non-governmental
    voices, specialist voices, indigenous voices - also contribute valuable
    information in the fora of this institution. Here, in the development of this
    Declaration, is a case in point.

    It is clear that the Declaration is not
    a treaty. One would be fair in asking the question ‘well if it is not a
    treaty with binding legal obligations, what is the value of this
    instrument?’ and I say these following points.

    (1) It is an
    extremely useful tool for those of us who work in human rights. It is, in many
    ways, a ‘harvest’ that has reaped existing ‘fruits’ from
    a number of treaties, and declarations, and guidelines, and bodies of principle,
    but, importantly, also from the jurisprudence of the Human Rights bodies that
    have been set up by the UN and charged with monitoring the implementation of the
    various treaties.

    (2) The rights contained in the Declaration are not
    new. There are no new rights in the Declaration from our perspective. They are
    rights that have been codified by the member States of this organization in
    countless treaties and have existed for the entire life of this organization
    since the adoption of the universal declaration of HR. But they are rights that
    have been violated - if we are to be frank, with impunity - vis-a-vis Indigenous
    Peoples for as long as these rights have existed. So the Declaration does
    something that is very useful. It helps us to clarify what are the normative
    implications and the operational requirements of the existing catalogue of human
    rights standards that have been adopted by the UN over the years. This
    clarification occurs in a way that is ‘situation-specific’,
    explaining how these pre-existing rights apply to the very particular case of
    Indigenous peoples around the world.

    (3) The Declaration is not just a
    re-statement of existing rights, although it does not create any new rights. It
    is a remarkably clear articulation of the nature of the obligations and
    entitlements that attach to those pre-existing rights in the case of Indigenous
    Peoples. If you look at the instrument you will see the practical value of
    language that is drawn from the jurisprudence and helps us to understand those
    rights better, language like ‘free, prior and informed consent’,
    language like ‘just and fair compensation’ and language like
    ‘fair and independent process’. These are not new concepts but they
    are very well articulated in the declaration.

    (4) The Declaration is a
    comprehensive standard on human rights. It covers the full range of rights of
    Indigenous Peoples - in fact, rights of all of us but as they relate to
    Indigenous Peoples. It catalogues the kinds of violations that have historically
    plagued and, sadly, continue to plague Indigenous Peoples around the world. In
    particular, there are attacks upon their culture, their land, their identity,
    and their own voice. The Declaration has remarkable detail on issues like
    ‘cross-border’ relations and discrimination suffered by indigenous
    groups. In short the Declaration lays out the minimum standards for the
    survival, dignity and well being of Indigenous Peoples. That, itself, is
    language taken from the Declaration and is proof enough of the practical value
    of the instrument.

    (5) The Declaration does not take an
    ‘either/or’ approach that historically has been forced on Indigenous
    Peoples around the world. Indigenous Peoples, for example, were forced to either
    be restricted to ‘reserves’ or to suffer discrimination before
    official state institutions. This Declaration incorporates ‘choice’
    as a fundamental element to which we are all entitled. You can see that the
    declaration looks both at respect for indigenous institutions, on the one hand,
    but also equality before official institutions on the other hand. It looks at
    both the recognition of Indigenous identity, on the one hand, but also the right
    to national citizenship on the other hand. It looks at respect for traditional
    justice systems, on the one hand, but also requires access to national justice
    systems on the other hand. This very balanced ‘choice’ approach to
    human rights is codified in countless instruments but now we have it very
    clearly laid out in regard to the long struggles of Indigenous Peoples.

    The Declaration was adopted by the Human Rights Council with 30 votes in
    favour, 2 against, 12 abstentions and three voting countries
    absent.[148] The 2 votes against
    were by Canada and the Russian
    Federation.[149]

    The Canadian government had indicated in debates prior to the vote on the
    Declaration that its principle concern was the lack of time for consideration of
    the revised Chairman’s Text of the Declaration. On 27 June 2006 they
    stated:

    The conclusions and proposals of the Chairperson-Rapporteur reflect (recent)
    progress. There are, however, some key issues, such as the section on lands,
    territories and resources, where the provisions are unclear and open to
    competing interpretations.

    The Chairperson-Rapporteur has proposed language on several key issues that
    requires discussion among all parties. Such discussion on this latest draft has
    not taken place... As such, Canada would like some more time to work with other
    Member States and Indigenous peoples to arrive at a more workable
    document...

    We are simply asking for more
    time.[150]

    Australia had presented its objections to the Declaration in a joint
    statement with the governments of New Zealand and the United States of
    America.[151] It argued that the
    Chairman’s text provides ‘a basis for further consideration and
    work. But it does not enjoy consensus’ and argued that ‘the current
    text is confusing and would risk endless and conflicting interpretations and
    debate on its
    application’.[152]

    The government noted its principle objections to the Declaration were as
    follows:

    • In relation to self-determination that ‘the provisions for
      articulating self-determination for Indigenous Peoples inappropriately reproduce
      common Article 1 of the Covenants. Self-determination in the Chair’s Text
      could be misrepresented as providing a unilateral right of self-determination
      and possible secession upon a specific subset of the national populace, thus
      threatening the political unity, territorial integrity and the stability of
      existing UN Member
      States’.[153]
    • In relation to lands, territories and resources that ‘they
      ignore the contemporary realities in many countries with indigenous populations,
      by appearing to require the recognition of indigenous rights to lands now
      lawfully owned by other citizens, both indigenous and non-indigenous (Article
      26). Such provisions would be both arbitrary and impossible to
      implement’.[154]
    • In relation to the status of individual rights, that ‘important
      provisions of the Chair’s Text are potentially discriminatory. It seems to
      be assumed that the human rights of all individuals, which are enshrined in
      international law, are a secondary consideration in this text. The intent of the
      Working Group is that was not that collective rights prevail over the human
      rights of individuals, as could be misinterpreted in Article 34 of the text and
      elsewhere’.[155] They also
      argued that the Chair’s Text ‘appears to confer upon a sub-national
      group, a power of veto over the laws of a democratic legislature (Article 20)
      ... One group in society (cannot) have rights that take precedence over those of
      others’.[156]

    These concerns are poorly argued and unjustified. They should be
    rejected outright as they do not interpret the Declaration according to
    principles of good faith, respect for human rights, equality and
    non-discrimination. To interpret in accordance with these principles would be
    consistent with principles of international law as well as consistent with
    Article 46 of the Declaration.

    Some particular concerns with the views put by the Australian government are
    as follows.

    • In relation to self-determination, the government freely admits in
      their statement that to interpret the right of self-determination for Indigenous
      peoples as providing a unilateral right of self-determination and possible
      secession would misrepresent the Chair’s Text. That is, it would
      amount to a misinterpretation of the provisions of the Declaration. It is also
      unclear what the government means by the phrase a ‘unilateral right of
      self-determination’. What is clear however, is that international law does
      not support a unilateral right to secession.
    • Indigenous organisations and other governments have consistently pointed out
      that the Declaration also provides guarantees against secession, such as through
      the preamble where it notes that ‘nothing in this Declaration may be used
      to deny any peoples their right of self-determination, exercised in conformity
      with international law’ and Article 46(1) which provides that
      ‘Nothing in this Declaration may be interpreted as implying for any State,
      people, group or person any right to engage in any activity or to perform any
      act contrary to the Charter of the United
      Nations’.[157]
    • The debates on self-determination during the negotiations also demonstrated
      a high degree of consensus about the applicability of self-determination to
      indigenous peoples. The dispute about self-determination centres on the attempt
      by some States to limit the potential scope of this right, not whether it
      applies at all. Some States argued that the purpose in the Declaration is to
      affirm the existence of the right for indigenous peoples, not resolve broader
      issues on its application, which the Declaration makes clear, will be done in
      accordance with international law. The Declaration also provides, in Articles 40
      and 46, that any disputes that subsequently arise between Indigenous peoples and
      States should be resolved through ‘just and fair procedures for the
      resolution of conflicts and disputes with States’ as well as being
      resolved ‘in accordance with the principles of justice, democracy, respect
      for human rights, equality, non-discrimination, good governance and good
      faith.’ Compliance with these principles is expected from both States and indigenous peoples.
    • Many States indicated their preference for any concerns to be addressed
      through positive language (that affirms both the existence of the right and
      highlights the value of establishing new partnership relationships between
      indigenous peoples and the State, which contributes to preserving territorial
      integrity and avoids confrontation) rather than by seeking to introduce
      limitations which may result in the future in discriminatory
      treatment.[158] This positive
      approach is reflected in the provisions of the Declaration, such as:
      • the principles in Article 46
        outlined above;
      • the requirement also set out in
        Article 46 that the rights in the Declaration shall only be subject to limits
        that are non-discriminatory and which are ‘strictly necessary solely for
        the purpose of securing due recognition and respect for the rights and freedoms
        of others’;
      • the preamble where it notes the
        right of indigenous peoples to ‘freely determine their relationships with
        States in a spirit of coexistence, mutual benefit and full respect’ and
        that the recognition of the rights of indigenous peoples in this declaration
        (including recognition of their right to self-determination) will ‘enhance
        harmonious and cooperative relations between the State and indigenous peoples,
        based on principles of justice, democracy, respect for human rights,
        non-discrimination and good faith’.
    • In relation to the concerns on lands, territories and resources, the
      specific concern outlined above cannot be seen as a reasonable or good faith
      interpretation of the provisions of the Declaration (as is expected in
      international law and as outlined in other provisions of the Declaration). The
      provisions of the Declaration must be read in the context of other provisions
      relating to land which provide for just and fair processes to be established to
      delineate indigenous land (Article 27) as well as for processes for redress and
      compensation (Article 28) which enable such concerns to be addressed on the
      basis of mutual respect and good faith.
    • It has also been noted that there are ‘precedents in international law
      and abundant arguments in doctrine and in practice (ILO Convention 169,
      decisions of the Inter-American Court of Human Rights and others) which are
      sufficiently clear’ that the terminology used in the Declaration does not
      jeopardize the territorial integrity of the
      State.[159]
    • In relation to the status of individual rights, this argument is
      patently absurd and incorrect. The Declaration notes in the preamble, for
      example, that ‘indigenous individuals are entitled without discrimination
      to all human rights recognized in international law’. Article 1 of the
      Declaration also states that ‘Indigenous peoples have the right to the
      full enjoyment, as a collective or as individuals, of all human rights and
      fundamental freedoms as recognized in the Charter of the United Nations, the
      Universal Declaration of Human Rights and international human rights law’.
      The collective rights of indigenous peoples are to be applied consistently with
      individual rights and on a basis that does not impede the rights of indigenous
      individuals.

    On these issues, I agree fully with the comments of Professor
    Rodolfo Stavenhagen, the United Nations Special Rapporteur on Indigenous Issues,
    when he stated to the Human Rights Council that:

    In response to the concerns of some States regarding issues of sovereignty
    and territorial integrity, the Special Rapporteur considers that no country
    has ever been diminished by supporting an international human rights instrument;
    rather the contrary is the
    case.
    [160]

    A joint intervention at the Permanent Forum on Indigenous Issues in May 2006
    and at the Human Rights Council in June 2006 was made by approximately 100
    Indigenous organisations. It noted the following critical points on the
    Declaration in relation to the position of Australia, New Zealand and the Untied
    States of America:

    1. To date, we have heard dissent from only a few
      States – generally those countries who possess dismal human rights records
      relating to indigenous peoples. For example, in regard to the United States, New
      Zealand and Australia, all of these States are either now or have been the
      subject of “early warning and urgent action” procedures by the
      Committee on the Elimination of Racial Discrimination.
    2. Regrettably, key positions that are advanced by these States regarding the
      collective human rights of Indigenous peoples are most often discriminatory.
      They are not consistent with the Purposes and Principles of the U.N.
      Charter
      or with international law and its progressive development. Nor are
      these positions compatible with their existing international obligations.
    3. We strongly urge the United Nations not to accommodate such discriminatory
      voices by delaying the adoption of the Declaration. In the Programme
      of Action for the Second International Decade of the World's Indigenous
      People
      , the General Assembly has stipulated that the “draft
      [Declaration] shall not fall below existing international
      standards”.
    4. In the March 2006 General Assembly resolution that creates the Human Rights
      Council, it is specified that the Council is “responsible for promoting
      universal respect for the protection of all human rights ... for all, without
      distinction of any kind”. The discriminatory and lesser standards being
      proposed by a few States would thus be inconsistent with the mandate of the
      Council.[161]

    The Declaration was sent by the Human Rights Council to the General
    Assembly of the UN for adoption.

    On 28 November 2006, the Third Committee of the General Assembly decided to
    defer consideration of the Declaration ‘to allow time for further
    consultations’. It noted, however, that the General Assembly would
    ‘conclude consideration of the Declaration before the end of (the General
    Assembly’s) sixty-first session’ (in approximately September
    2007).[162]

    The Australian Government supported delaying consideration of adoption of the
    Declaration.

    At the time, I noted that:

    It is frustrating that countries such as Namibia (who introduced the
    resolution in the Third Committee) have raised concerns about the Declaration
    that have been debated ad nauseum in the working group negotiations over the
    past decade (Namibia chose not to participate in those negotiations).

    I am concerned that the Declaration has been stalled on the basis of
    arguments that have been roundly rejected by indigenous peoples over 11 years of
    negotiations. For example, Indigenous delegations have previously stated that
    any recognition of a right to self-determination in the Declaration should be
    done in accordance with international law and pose no threat to the territorial
    integrity of nation States. There is a triple guarantee of this in the
    Declaration.[163]

    I also expressed my concern that any further discussions on the Declaration
    should be conducted with the full participation of Indigenous peoples. As I
    noted:

    Let us remember that we are currently in the second International Decade for
    the World’s Indigenous People. The resolution adopting the Decade was
    adopted unanimously and is based on a theme of partnership with Indigenous
    peoples. The Program of Action for the Decade also recognises the status of
    Indigenous peoples as ‘peoples’ in international law - again,
    something that was adopted by general consensus.

    Given this recognition, it would be inconceivable and completely
    inappropriate for any future discussions on the Declaration to exclude
    indigenous peoples.

    I also call on the Australian Government to actively engage with Indigenous
    peoples in Australia in relation to the Declaration. We know that the majority
    of the Declaration is supported by our government - as they joined in the
    consensus agreement on over two thirds of the Declaration’s provisions in
    the final session of the working group negotiations earlier this year.

    However, the Australian Government’s objections to the Declaration need
    to be laid out publicly - article by article - so they can be debated with
    Indigenous peoples and tested against Australia’s existing international
    human rights obligations.[164]

    That is the current status of the Declaration. It awaits decision in the
    latter part of 2007 by the General Assembly. The outcome of that decision will
    be critical for indigenous peoples.

    4) Summary of international developments – the
    current situation

    This chapter has highlighted the large scope of activities taking place
    within the UN system that relate to the recognition of the rights of indigenous
    peoples.

    • UN Reform processes

    The United Nations reform process sets the broader framework within
    which to consider the level of protection that is provided for the human rights
    of indigenous peoples worldwide.

    The In larger freedom report, by the Secretary-General of the UN, sets
    out the ‘implementation challenge’ for governments to make
    commitments such as the Millennium Development Goals meaningful. It challenges
    governments to no longer treat the Millennium Development Goals as
    ‘floating targets, referred to now and then to measure progress’.
    Instead, they must inform, on a daily basis, national strategies and
    international assistance alike.

    It also challenges governments ‘to be held to account for respect of
    the dignity of the individual, to which they too often pay only lip
    service’ and to ‘move from an era of legislation to an era of
    implementation’.

    The UN World Summit in September 2005 responded with all governments agreeing
    to integrate the promotion and protection of human rights into national policies
    and to support the further mainstreaming of human rights throughout the United
    Nations system.

    The World Summit also highlighted the ongoing importance of addressing
    indigenous peoples’ human rights and for maintaining processes for the
    participation of indigenous peoples. It reaffirmed the commitment of all
    governments to continue advancing the human rights of the world’s
    indigenous peoples at the local, national, regional and international levels,
    including through consultation and collaboration with them.

    The Summit ultimately agreed to structural reforms to the UN which recognise
    the equal importance of human rights alongside development and security.
    Principally, this involved agreement to the upgrading of the Commission on Human
    Rights into a full-fledged Human Rights Council.

    The creation of the Human Rights Council provides opportunities for
    indigenous peoples to further promote their human rights, particularly through
    the new universal periodic review mechanism.

    The modalities of how the Human Rights Council will operate, and the
    continuation of various subsidiary and advisory bodies remains to be determined.

    Indigenous peoples have advocated that any future arrangements should enhance
    and not diminish the existing functions provided by the Working Group on
    Indigenous Populations, the Special Rapporteur on the human rights and
    fundamental freedoms of indigenous peoples and the United Nations Permanent
    Forum on Indigenous Issues.

    Further, indigenous peoples have argued that the UN should lay to rest any
    insecurities among indigenous peoples that the United Nations reform process and
    ongoing reorganization of the United Nations human rights structures could lead
    to the diminution or disappearance of existing positive functions which are
    central to the advancement of the rights of indigenous peoples.

    The challenge that has emerged through the current human rights reform
    process is therefore to maintain the capacity for direct participation of and
    engagement with indigenous peoples on human rights issues within the structures
    of the newly created Human Rights Council.

    This is particularly crucial as there remain many issues that require the
    further elaboration of indigenous rights through the international human rights
    system. These include guidelines on the protection of indigenous heritage, the
    application of the principle of free, prior and informed consent, and the
    guidelines and monitoring for the implementation of the Declaration on the
    Rights of Indigenous Peoples.

    • The mainstreaming of human rights across the UN and participatory
      development practices

    Accompanying these reforms to the UN structure have been sustained
    efforts to mainstream human rights across the UN by integrating them into all
    policies and programs.

    This has occurred through the increased recognition of the right to
    development and the entrenchment within the UN of a human rights based approach
    to development and poverty eradication.

    The Declaration on the Right to Development (DRD) provides the platform that
    ‘The human person is the central subject of development and should be the
    active participant and beneficiary of the right to development’.

    The UN agencies have committed to ensuring that all their policies and
    programming are consistent with the right to development through the adoption in
    2003 of the Common Understanding of a Rights Based Approach to Development
    Cooperation.
    This ensures that active participation is central to the
    development, implementation and monitoring of all development programs.

    This has been accompanied by an increased recognition, including under human
    rights treaties, of the right of indigenous peoples to effective participation
    in decision making that affects them and to the applicability of the right of
    self-determination to indigenous peoples.

    These developments have in turn begun to crystallise into a growing
    acceptance of the emerging concept of free, prior and informed consent. This
    principle is increasingly emerging as a practical methodology within the UN
    system for designing programs and projects, which either directly or indirectly
    affect indigenous peoples. It is also a mechanism for operationalising the
    human-rights based approach to development.

    Both the Permanent Forum and the WGIP have emphasised that the principle of
    free, prior and informed consent is not a newly created right for indigenous
    peoples. Instead, it brings together, or synthesises, the active legal
    obligations of States under existing international law (such as the provisions
    relating to self-determination, cultural and minority group rights,
    non-discrimination and equality before the law).

    Procedurally, free, prior and informed consent requires processes that
    allow and support meaningful and authoritative choices by indigenous peoples
    about their development paths.

    In relation to development projects affecting indigenous peoples’ lands
    and natural resources, the respect for the principle of free, prior and informed
    consent is important so that:

    • Indigenous peoples are not coerced, pressured or intimidated in their
      choices of development;
    • Their consent is sought and freely given prior to the authorization and
      start of development activities;
    • Indigenous peoples have full information about the scope and impacts of the
      proposed development activities on their lands, resources and well-being;
    • Their choice to give or withhold consent over developments affecting them is
      respected and upheld.

    The principle of free, prior and informed consent has recently
    received important international endorsement by the United Nations General
    Assembly. The Program of Action for the Second International Decade of the
    World’s Indigenous People includes the objective of ‘promoting the
    full and effective participation of Indigenous peoples in decisions which
    directly or indirectly affect them, and to do so in accordance with the
    principle of free, prior and informed consent’.

    These developments in international law (through binding treaty obligations)
    and UN policy and practice demonstrate the increased acknowledgement and
    reliance on human rights as providing a framework for proactively addressing
    existing inequalities within society and for recognising and protecting the
    distinct cultures of Indigenous peoples. And there are increasing expectations
    that this be done on the basis of full and effective participation of affected
    Indigenous peoples.

    • Global commitments to action: The MDG’s and Indigenous
      peoples

    The Millennium Development Goals, as agreed in 2000, are intended
    to apply and to benefit all people. This is in accordance with the
    understanding that human rights are universal, inalienable and indivisible.

    Concerns remain that after 5 years of implementation, there is insufficient
    focus on the application of the MDGs to indigenous peoples and also to within
    developed countries.

    The Inter-Agency Support Group on Indigenous Issues (IASG) has noted that it
    appears from the available evidence that indigenous and tribal peoples are
    lagging behind other parts of the population in the achievement of the goals in
    most, if not all, of the countries in which they live, and indigenous and tribal
    women commonly face additional gender-based disadvantages and
    discrimination.

    There are also concerns that the effort to meet the targets laid down for the
    achievement of the Millennium Development Goals could in fact have harmful
    effects on indigenous and tribal peoples, such as the acceleration of the loss
    of the lands and natural resources on which indigenous peoples’
    livelihoods have traditionally depended or the displacement of indigenous
    peoples from those lands.

    While the Millennium Development Goals carry a potential for assessing the
    major problems faced by indigenous peoples, the Millennium Development Goals and
    the indicators for their achievement do not necessarily capture the
    specificities of indigenous and tribal peoples and their visions. Efforts are
    needed at the national, regional and international levels to achieve the
    Millennium Development Goals with the full participation of indigenous
    communities without interfering with their development paths and their holistic
    understanding of their needs. Such efforts must take into account the multiple
    levels and sources of the discrimination and exclusion faced by indigenous
    peoples.

    The Permanent Forum have identified that the next step in redressing these
    concerns is to facilitate processes for indigenous peoples ‘to identify
    gaps in existing indicator frameworks, examine linkages between quantitative and
    qualitative criteria, and propose the development of indicators that are
    culturally-specific, measure exclusion, and reflect the aspirations of
    indigenous peoples’.

    A preliminary series of indicators for consideration at the national and
    international level, and application in developed countries, has been suggested
    based on the two key themes of Identity, Land and Ways of Living; and Indigenous
    Rights to, and Perspectives on, Development.

    For Indigenous peoples in Australia, there remains insufficient recognition
    that there are challenges for meeting the MDGs. Australia treats the MDGs as a
    matter of foreign policy, relevant only to Australia’s international aid
    programme.

    There is currently an absence of mechanisms in Australia for Indigenous
    peoples to be active participants in the planning, design, implementation,
    monitoring and evaluation of policies, programmes and projects. This is
    particularly the case with the absence of Indigenous representative structures
    at a national and regional level.

    There is a need for Australian governments to adopt a human rights based
    approach to development to underpin poverty eradication strategies. This
    requires recognition of Indigenous peoples as distinct peoples and the respect
    for their individual and collective human rights.

    • Global commitments to action: The Second International Decade of the
      World’s Indigenous People

    On 20 December 2004, the UN General Assembly proclaimed the Second
    International Decade of the World’s Indigenous People. The Decade
    commenced on 1 January 2005 and runs until 2015. The Decade provides a focal
    point for all UN activity on indigenous peoples over the next decade, as well as
    the efforts of governments through international cooperation and within
    countries.

    The focus in the preliminary stages of the Decade has been on
    ensuring that the commitments made by governments and the UN are action-oriented
    and focused on implementation.

    The goal of the Second Decade is the further strengthening of international
    cooperation for the solution of problems faced by indigenous people in such
    areas as culture, education, health, human rights, the environment and social
    and economic development

    The Program of Action for the Second Decade approves five key objectives for the Decade. These are:

    1. Promoting non-discrimination and inclusion of indigenous peoples in the
      design, implementation and evaluation of international, regional and national
      processes regarding laws, policies, resources, programmes and projects.
    2. Promoting full and effective participation of indigenous peoples in
      decisions which directly or indirectly affect their lifestyles, traditional
      lands and territories, their cultural integrity as indigenous peoples with
      collective rights or any other aspect of their lives, considering the principle
      of free, prior and informed consent.
    3. Redefining development policies that depart from a vision of equity and that
      are culturally appropriate, including respect for the cultural and linguistic
      diversity of indigenous peoples.
    4. Adopting targeted policies, programmes, projects and budgets for the
      development of indigenous peoples, including concrete benchmarks, and particular
      emphasis on indigenous women, children and youth.
    5. Developing strong monitoring mechanisms and enhancing accountability at the
      international, regional and particularly the national level, regarding the
      implementation of legal, policy and operational frameworks for the protection of
      indigenous peoples and the improvement of their lives.

    The Program of Action proposes a range of activities in
    relation to culture, education, health, human rights, the environment and social
    and economic development. These are divided up into activities at the
    international and the national levels, as well as activities aimed at Indigenous
    Peoples Organisations.

    The Program of Action also outlines a series of mechanisms for implementing
    and monitoring progress on the Second Decade. These include
    that:

    • All agencies (including governments, Indigenous and non-government
      organisations) adopt plans of concrete activities with specific benchmarks to
      implement the programme of action of the Second Decade;
    • All activities be undertaken on the basis of the full and effective
      participation of indigenous peoples, with Indigenous organizations establishing
      mechanisms in each region to evaluate on an ongoing basis the degree to which
      the programme of action of the Second Decade is being realized;
    • Committees of Indigenous peoples should be established at the national and
      local level to monitor the implementation of the programme of action
      domestically;
    • Governments should establish national focal points on indigenous issues and
      on the Second Decade and intensify coordination and communication at the
      national level among relevant ministries, agencies and local authorities;
      and
    • Tripartite committees should be established at the country level composed of
      governments, indigenous peoples and United Nations country offices to promote
      implementation of the objectives of the Second Decade.

    Overall, the objectives and the Program of Action of the Second
    Decade provide a focused framework for achieving the protection of the rights of
    indigenous peoples internationally and domestically over the coming decade.

    It highlights important principles for the process of engaging with
    indigenous peoples (on a non-discriminatory basis, with recognition of the
    distinct cultures of indigenous peoples and on the basis of the full and
    effective participation of indigenous peoples in decision making), as well as
    focusing on the achievement of outcomes for improving the currently
    parlous state of enjoyment of human rights by indigenous peoples (with targets
    and benchmarks for achievement, and strong monitoring and accountability
    mechanisms conducted in partnership with indigenous peoples).

    International efforts over the past two years have sought to ensure that the
    MDG process and the Second International Decade are mutually reinforcing and
    complementary in their focus, in order to maximise the opportunities to advance
    the situation of indigenous peoples.

    The Permanent Forum has stated its intention to use its coordination role
    within the UN to promote an integrated approach to the Second Decade and the
    MDGs, so that they are complementary and mutually reinforcing.

    • Recognition of Indigenous specific rights

    Indigenous peoples have advocated the need for additional,
    specifically defined forms of recognition due to the existence of a
    ‘normative protection gap’ in the international system.

    The reason for this is that most human rights standards are individual in
    nature, and offer limited protection to the collective rights of indigenous
    peoples – such as to lands, territories and resources.

    The process of elaborating specific human rights norms that are applicable to
    indigenous peoples began over 20 years ago. The outcomes of this advocacy are
    reflected in the UN Declaration on the Rights of Indigenous Peoples.

    The Declaration is of utmost importance to combat discrimination against
    indigenous peoples. It explicitly encourages harmonious and cooperative
    relations between States and indigenous peoples. Every provision of the
    Declaration has been designed to be interpreted consistent with the principles
    of justice, democracy, respect for human rights, non-discrimination and good
    faith.

    The Declaration is also:

    • a reaffirmation of the commitment of the international community to respect
      cultural diversity and the right to be different;
    • based upon principles of partnership, consultation and cooperation between
      indigenous peoples and States; and
    • an aspirational human rights instrument that establishes a valuable
      framework for resolving issues and achieving the common objectives of the
      international community and the UN Charter.

    The Declaration does not create new rights. It elaborates upon
    existing international human rights norms and principles as they apply to
    indigenous peoples. The Declaration was adopted by the Human Rights Council on
    29 June 2006 and is currently being considered by the General Assembly of the
    UN.

    There exists substantial consensus on the vast majority of the provisions of
    the Declaration, with a small group of States maintaining objections.

    Notably, the Australian government was an active participant in the
    negotiations and was part of the consensus on the majority of the Declaration.
    The Australian government was also one of a handful of States that maintained
    objections to the proposed text of the provisions relating to
    self-determination, land and resource rights and the general provisions.

    The Australian government concerns have been poorly argued at the
    international level and are unjustified. They should be rejected outright as
    they do not interpret the Declaration according to principles of good faith,
    respect for human rights, equality and non-discrimination. The
    government’s interpretation is not in accordance with principles of
    international law or consistent with Article 46 of the Declaration.

    In relation to these objections, the United Nations Special Rapporteur on
    Indigenous Issues has argued that no country has ever been diminished by
    supporting an international human rights instrument; rather the contrary is the
    case.

    Closing the ‘protection gap’ –
    Implementing a human rights based approach to Indigenous policy and service
    delivery in Australia

    The outline of international developments in this chapter shows that the
    human rights of indigenous peoples have received extensive consideration in
    recent years.

    Through a range of processes and mechanisms, States have entered into a broad
    range of commitments relating to the human rights of indigenous peoples. Some of
    these emerge through commitments to action – such as through the World
    Summit outcomes, the Millennium Development Goals and the Program of Action for
    the Second International Decade of the World’s Indigenous People –
    whereas others relate to human rights obligations and international law, such as
    the developments through the UN human rights treaty committees, and the standard
    setting work of the Special Rapporteur, WGIP and Permanent Forum on Indigenous
    Issues.

    Through these processes, governments of the world have agreed to actively
    engage with indigenous peoples locally to promote and implement the commitments
    they have made at the international level. As an example and as outlined in
    detail above, governments have committed to:

    • achieve the Millennium Development Goals by 2015;
    • adopt plans of concrete activities with specific benchmarks to implement the
      goal, objectives and programme of action of the Second Decade;
    • establish national focal points within government on indigenous issues and
      on the Second Decade, as well as establish consultative processes (such as
      tri-partite committees with indigenous peoples and the UN) to promote
      implementation of the objectives of the Second Decade;
    • adopt targeted policies, programmes, projects and budgets for the
      development of indigenous peoples, including concrete benchmarks; and
    • develop strong monitoring mechanisms and accountability at the national
      level, regarding the implementation of legal, policy and operational frameworks
      for the protection of indigenous peoples and the improvement of their lives.

    In addition, the human rights based approach to development has
    come to the fore of international discussion (with the World Summit outcomes
    emphasising achievement of the right to development as an essential component of
    the universality and inter-dependence of human rights).

    In practical terms, there are clear commitments by governments to adopt a
    participatory approach to development, with active engagement of indigenous
    peoples, and through the negotiation of benchmarks and targets.

    • The ‘protection gap’ in Australia

    The previous chapters of this report have outlined in detail
    concerns about domestic policy making and program delivery. There is a clear
    lack of consistency between existing policies and approaches to Indigenous
    issues with these international legal obligations and developments.

    It is clear to me that there is limited consideration of the
    government’s human rights obligations in the settling of policy and
    delivery of programs as they affect indigenous Australians. As noted in previous
    chapters, there is a fundamental lack of processes for engagement with
    Indigenous peoples at the regional and national level. State wide processes also
    rely on bilateral agreements between the states and territories and the
    Commonwealth, which see no role in priority setting for Indigenous peoples.
    Previous tri-partite processes at the state level have by and large been
    discontinued in the absence of the Aboriginal and Torres Strait Islander
    Commission (ATSIC).

    It is totally unacceptable for any government participating in UN processes
    to stand up, hand on heart, and pledge to undertake a range of actions in their
    domestic activities and then to comprehensively fail to act. In the Australian
    situation, there has been no observable and/ or transparent attempt to consider
    the implications of the commitments entered into at he UN General Assembly (such
    as through the Program of Action for the Second International Decade or the
    MDGs). These commitments are made to the citizens of Australia and to other
    States in good faith. They are intended to form a basis for action at all
    levels.

    How can it be acceptable for Australia to commit to contributing to the
    achievement of the Millennium Development Goals by 2015 in Africa, and to not
    commit to doing the same within our borders in relation to a small percentage of
    the total population? It is a policy absurdity.

    As I argued in the introduction to this report, the lack of consideration of
    a human rights based approach to Indigenous affairs and the failure to
    explicitly ensure consistency with Australia’s human rights obligations,
    amounts to bad policy.

    This situation is not unique to Australia. A major concern at the
    international level is the lack of implementation of human rights in domestic
    situations. As the then Secretary General of the United Nations, Kofi Annan puts
    it, ‘the time has come for Governments to be held to account for respect
    of the dignity of the individual, to which they too often pay only lip
    service’ and to do so by moving ‘to an era of
    implementation’.

    In his first report to the General Assembly, the Special Rapporteur on the
    situation of human rights and fundamental freedoms of indigenous peoples also
    noted that:

    Violations of the human rights of indigenous people occur for a variety of
    reasons... Although in some cases they are being tackled through specific
    programs and proposals, in many other cases rhetoric is failing to result in
    action, and needs are being neglected, particularly when it comes to
    protection.[165]

    The Special Rapporteur has also stated that:

    the problem of a ‘protection gap’ between existing human rights
    legislation and specific situations facing indigenous people is indeed of major
    significance and presents a challenge to international mechanisms for the
    effective protection of human
    rights.[166]

    And further, that:

    A matter of crucial importance... is the growing gap between legislation on
    indigenous rights... and the real, day-to-day situation of indigenous people in
    their communities.

    All the indicators suggest that the main problem is not a lack of suitable
    legislation (although much remains to be done in that regard), but shortcomings
    in terms of implementation, the efficiency of institutions and the procedures
    and mechanisms for the full realization of human
    rights.[167]

    As noted throughout this chapter, the implementation gap has been highlighted
    as one of the most significant challenges for the UN and the international human
    rights system to address into the future.

    What is the reasoning for this lack of implementation of Indigenous rights
    domestically in Australia and what are its implications?

    One reason has to be the coordinating role of the Office of Indigenous Policy
    Coordination (OIPC). While OIPC does have a section with responsibilities
    relating to indigenous rights, reconciliation and repatriation of human rights,
    it is not active in promoting awareness of indigenous rights developments or the
    commitments of government across the bureaucracy. As a consequence, OIPC does
    not utilise its role as the coordinator of whole of government activity to
    ensure that a proactive approach is adopted to recognising Indigenous human
    rights and to implementing the commitments of the government undertaken within
    international fora.

    While the delegate representing the Australian government will transmit a
    ‘cable’ at the conclusion of an international forum, there is no
    other mechanism known to be taking place domestically where all departments and
    agencies working with Indigenous peoples are provided with advice and directions
    that elaborate on the rights to development and other emerging human rights
    standards. Consequently, the disconnect between the domestic and international
    systems is not being addressed. To this end, it may be of benefit for the
    Secretaries of the Department of Foreign Affairs and/or AusAid to participate in
    the Secretaries Group on Indigenous Affairs to ensure greater consistency
    between international and domestic processes.

    Further, there is a clear scepticism or even unwillingness from senior
    bureaucrats with OIPC to implement Australia’s human rights obligations.
    In a recent meeting, a senior bureaucrat described obligations relating to
    effective participation and obtaining consent (in relation to 99 year leasing
    – an issue that has the potential to impact significantly on generations
    of Indigenous communities) as ‘touchy feely’ stuff. The clear
    impression was that it was unimportant and a distraction. He went so far as to
    say that what Indigenous peoples need is for governments to come in and
    ‘shock them’ into action through extreme (punitive and
    non-participatory) measures as they have done in Balgo (WA) and Wadeye (NT).

    While this view is patently absurd, it reflects a broader problem within
    government. This is that human rights are seen as a prescriptive framework that
    is focused on what you can’t do and on a compliance mentality. The
    limited efforts to engage with human rights principles are at the most crude and
    basic level, such as crafting measures so that they can avoid or limit
    accusations of racial discriminatory treatment.

    Clearly this is an essential component of the human rights system. But it is
    much more than this. It is also a system for States to encourage the adoption of
    proactive measures to create an enabling framework for active participation and
    engagement of all citizens, and particularly for those who are disadvantaged or
    powerless.

    Human rights as an enabling framework promotes active engagement through
    partnerships, shared decision making and ultimately shared responsibility for
    outcomes. This is emphasised by a motto for the Second International Decade;
    ‘partnership for action’.

    By comparison, the current approach of the federal government pre-determines
    the priorities without engagement of Indigenous peoples, and therefore provides
    a passive system for service delivery and policy design. The irony of
    this approach is that it is a system which constantly attacks Indigenous peoples
    for being passive recipients, and yet it is in itself, resistant to any form of
    active engagement.

    Ultimately, this domestic view of human rights is increasingly out of step
    with international developments on human rights standards. It is an increasingly
    untenable approach and will continue to be the subject of international scrutiny
    and concern.

    We can, for example, expect that Australia will continue to be subject to
    concerns of non-compliance with human rights obligations by various treaty
    committees. Such scrutiny will intensify as human rights standards relating to
    Indigenous peoples become more widely accepted and common practice through
    international cooperation.

    We can also expect that over time it will become a source of scrutiny through
    the universal periodic review mechanisms of the Human Rights Council – at
    which point it should be clear to the government that the concerns are
    objectively based and applied equally to all countries.

    Indigenous peoples in Australia are in a particularly invidious position.
    Unlike other settler states such as Canada, New Zealand and the USA, who entered
    into treaties with Indigenous peoples, we have no formalised basis for
    engagement with Indigenous peoples. This makes the situation in Australia
    particularly disadvantageous towards Indigenous peoples and automatically
    creates a gap between principles of international law and domestic legal
    practice.

    But Indigenous peoples in Australia are also disadvantaged because we exist
    in a so-called developed country – meaning that UN activity and
    international cooperation is directed outwards and not towards the existence of
    substantial inequality and poverty within our borders.

    When we examine the developments in UN policies and programs we see that most
    are directed towards developing nations, with less scrutiny of the inequality
    and absence of a rights based approach to development within developed nations.
    This makes building on the widespread reforms in UN practice difficult; as there
    is no UN presence within Australia through which to operationalise a rights
    based approach to development, to focus on the implementation of the MDGs, or to
    implement the Second International Decade’s Programme of Action.

    This is not to say that the principles don’t apply – clearly they
    do. And they are intended to apply. But it places increased emphasis on
    the role of government and leaves it less susceptible to alternative approaches
    through international cooperation.

    • Bridging the ‘protection gap’ – the role of NGOs and
      the Indigenous community sector.

    Somehow we need to break this ‘protection gap’ by
    holding the government to implementing its obligations in good faith. But we can
    also break the ‘protection gap’ by focusing the efforts of civil
    society, the non-government and Indigenous community sectors, on adopting a
    rights based approach and learning from best practice frameworks, such as those
    that we export or experience through our international development work.

    I am convinced that a primary barrier to achieving this is the existence of
    an information gap within civil society on human rights. There is a lack of
    understanding about human rights by Indigenous peoples and of how to apply them
    in advocacy and policy.

    This is difficult to redress when government has closed off options for
    Indigenous participation in policy making processes and for representative
    structures. Government currently provides only limited support to Indigenous
    communities to build their capacity to understand and advocate for their rights.
    This limitation exists based on the misguided and fundamentally flawed view
    expressed to me by senior bureaucrats that if this information is provided it
    would empower Indigenous individuals and communities and see them challenge
    approaches adopted (often unilaterally) by government.

    This places greater responsibilities on Indigenous organisations and
    non-government organisations to facilitate access to information and capacity
    building for Indigenous communities if Indigenous peoples are to have the
    capacity to be truly self-determining.

    The Second International Decade provides us with an opportunity and the
    framework to focus our efforts to address this issue.

    As noted earlier in the chapter, the Program of Action for the Second Decade
    establishes a series of objectives to be met through adopting partnerships
    between governments, civil society and Indigenous peoples. It also
    recommends:

    • The adoption by governments and Indigenous peoples of plans of concrete
      activities with specific benchmarks to implement the goal, objectives and
      programme of action of the Second Decade;
    • The establishment of Committees of Indigenous peoples at the national and
      local level to monitor the implementation of the programme of action
      domestically;
    • The establishment of national focal points on indigenous issues and on the
      Second Decade within government departments, with improved coordination at all
      levels of government; and
    • The establishment of tri-partite committees at the country level composed of
      governments, indigenous peoples and United Nations country offices to promote
      implementation of the objectives of the Second Decade.

    Clearly, the government should designate a central focal point to
    coordinate governmental activities on the Second Decade. This focal point should
    be utilised to increase awareness of Indigenous rights and to bridge the gap
    between commitment and implementation that currently exists. This focal point
    should also consult with Indigenous organisations on proposed activities for the
    Second Decade, consistent with the requirements for full and effective
    participation that are outlined in the Program of Action for the Second Decade.

    However, we should not wait for government. To do so would not demonstrate
    the active participation of Indigenous peoples.

    There is much to be gained through partnerships between Indigenous
    organisations, research institutes and universities, Indigenous legal and
    medical services and the broader non-government sector (for example through
    those development, aid and human rights organisations who are members of the
    Australian Council For International
    Development).[168]

    HREOC has commenced with a process to build such partnerships, through the
    re-convening of what used to be known in ATSIC as the Indigenous Peoples
    Organisations Network (IPO Network).

    In 2006, the federal government confirmed the receipt of limited funding for
    HREOC to administer for ‘the purpose of funding Indigenous participation
    in relevant international deliberations’, and which could include
    ‘educative and capacity building
    initiatives’.[169] The
    funding is administered by the Aboriginal and Torres Strait Islander Social
    Justice Commissioner.[170]

    In accepting the funding, which is of such a limited amount that it is not
    possible to replicate the level of engagement and support previously provided by
    ATSIC, I noted that:

    I see a need for any project on international engagement by Indigenous
    peoples to create a stronger connection between activities at the international
    level and engagement with Indigenous communities domestically. This includes
    through facilitating domestic consultations to inform international participants
    and to engage with government prior to international dialogues taking place, as
    well as providing mechanisms for feedback and disseminating information on the
    outcomes of international deliberations back to Indigenous organisations and
    communities.

    Accordingly, I place much importance on conducting educative and capacity
    building initiatives domestically as part of any process for international
    engagement. I will seek to ensure this balance between domestic engagement and
    international participation is met through the funding
    available.[171]

    I also noted that:

    ... in addition to seeking further funding being transferred on an ongoing
    basis (by the government)... HREOC will also (seek) to build partnerships with
    NGOs and discuss funding on an ad-hoc basis with the relevant departments which
    now have ongoing responsibility for various international processes through the
    new service delivery arrangements for Indigenous affairs at the federal
    level.[172]

    The government responded by stating that they ‘agree with you that a
    balance must be struck between Indigenous engagement in international events,
    and the domestic educational and capacity building measures necessary to make
    this engagement
    effective’.[173]

    They also noted that ‘under the new arrangements... the departments
    with policy responsibility for international events will be responsible for
    providing the necessary assistance to facilitate appropriate Indigenous
    attendance at international events.’ In other words, that responsibility
    for funding Indigenous participation lies with the relevant department who was
    allocated the relevant program previously administered by ATSIC.

    At the same time as providing this funding, the Government also made a
    contribution to the United Nations Voluntary Fund for Indigenous Populations to
    assist the participation of Indigenous peoples fro the Pacific region in UN
    fora. The contribution was a one off payment of $5,000.

    In the first year of this funding to HREOC, I decided to provide funding
    contributions towards attendance at the UN Permanent Forum on Indigenous Issues
    and to convene the IPO Network for consultations prior to that meeting. It is
    the intention that the IPO would then meet twice annually, with occasional
    meetings on specific, urgent issues.

    Accordingly, I am seeking to undertake a facilitation and coordination role
    to link international engagement and domestic processes. Over time, I intend
    to:

    • Demonstrate that international engagement is of mutual benefit for the
      government, with the consequence that increased funding is contributed by the
      government to a more appropriate and sustainable level. The IPO Network would
      meet prior to major international events, and so provide an opportunity for
      government engagement with Indigenous groups prior to them attending meetings.
      This will provide the opportunity to engage with Indigenous peoples and
      understand Indigenous positions on particular issues, and where there are
      differences in position, to create a space for dialogue and the realisation of
      common ground. There is not a culture of this type of engagement and so this
      will take time.
    • Identify the responsible line agencies for funding within government and to
      make these channels known to Indigenous organisations so that government does
      not avoid its funding responsibilities by having no clear process or mechanism
      in place for considering funding applications.
    • Build an Indigenous network based on partnership to engage in Indigenous
      rights issues and developments, and to disseminate this information through
      their networks.
    • Seek an active partnership, including financial, with the non-government and
      corporate sectors for international participation.
    • Build a strategic alliance with the NGO sector. There is an extensive range
      of human rights NGOs who are interested in Indigenous issues and who would
      welcome input from Indigenous organisations as to priorities and approaches to
      Indigenous human rights issues.
    • Utilise these mechanisms to disseminate information to improve the linkages
      between the international and domestic arenas. Already, my office maintains a
      detailed website which is updated semi-regularly with international developments
      on Indigenous rights as a resource.

    The IPO Network process is in a formative stage. It is hoped that
    over time it will provide an effective forum for the dissemination of
    information about international developments, as well as an opportunity for
    direct participation of Indigenous organisations in advocating for their rights
    and promoting implementation of their rights within Australia.

    Conclusion and recommendations

    We have much to learn from international experience and a distance still to
    travel to ensure that our domestic policy frameworks are consistent with our
    human rights obligations. The Second International decade for the World’s
    Indigenous People provides a pathway for advancing discussions on these issues
    and also to map a way forward to ensure that the ‘protection gap’
    that presently exists within Australia can be eliminated.

    To advance the issues raised in this chapter, I make the following
    recommendations for action. I have included reference to which departments and
    agencies should take the lead in the implementation of these recommendations.

    Recommendation 1: Directed to the Office of Indigenous Policy
    Coordination

    That the federal government identify a focal point to coordinate, on a
    whole of government basis, its Program for the Second Decade of the
    World’s Indigenous Peoples. The focal point should consult with Indigenous
    organisations in determining the activities to be undertaken for the Decade, in
    accordance with the goal, objectives and Program of Action for the Decade. The
    Government’s Program should specifically respond to the items identified
    in the Program of Action for the Second Decade, rather than being a general
    thematic response. The Program should also be operational within this financial
    year.

    Further, that the government allocate specific funding for the conduct of
    activities for the Second Decade, as determined through the consultations with
    Indigenous peoples.

    Recommendation 2: Directed to the Office of Indigenous Policy
    Coordination and Department of Foreign Affairs and Trade

    That the federal government specify the process for consideration of
    funding for engagement in international deliberations and identify focal points
    within each federal department or agency (for example, the relevant contact
    point within the Department of the Environment and Heritage for engagement on
    issues relating to the Convention on Biological Diversity).

    Recommendation 3: Directed to the Indigenous Peoples Organisations
    Network and Australian Council for International Development

    That the non-government sector, led by members of the Australian Council
    for International Development as appropriate, engage with Indigenous
    organisations and the IPO Network to build partnerships for the implementation
    of the Second International Decade (as well as highlighting the relevance of the
    Millennium Development Goals to the situation of Indigenous peoples in
    Australia).

    Recommendation 4: Directed to the Department of Foreign Affairs
    and Trade, AusAid and Office of Indigenous Policy Coordination

    That the Department of Foreign Affairs, in conjunction with the Social
    Justice Commissioner, conduct regular briefings for all agency heads on
    developments on the rights of Indigenous peoples, including the right to
    development (including the human rights based approach to development),
    Millennium Development Goals and Second International Decade for the
    World’s Indigenous People. The Secretaries Group on Indigenous Affairs
    would be the appropriate body to receive these briefings.

    Further, that AusAid be invited to contribute to the Secretaries Group on
    Indigenous Affairs to identify lessons that can be learned from
    Australia’s international development activities for policy-making on
    Indigenous issues within Australia.


    Endnotes

    [1] From time to time the Aboriginal and Torres Strait Islander Social Justice
    Commissioner has included a review of international developments within the
    annual Social Justice Report. This chapter updates developments
    since the previous review, which was included as Chapter 6 of the Social
    Justice Report 2002
    . The Social Justice Commissioner also maintains an
    international developments website, available online at:
    www.humanrights.gov.au/social_justice/internat_develop.html.
    [2] The term ‘indigenous peoples’ is used in this report when referring
    generically to indigenous peoples at the international level. The term
    ‘Indigenous peoples’ (capitalised) is used when specifically
    referring to a particular grouping, such as the Indigenous peoples of Australia.
    See further the note on terminology contained at the front of this report for
    details on the use of the term ‘indigenous’ as opposed to Aboriginal
    or Torres Strait Islander.

    [3] The process of reforming the United Nations has been underway for some time,
    with recent reforms having their genesis in the mid-1990s. For background and
    further detail see:
    www.un.org/reform/.
    [4] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, available
    online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [5] The Millennium Development Goals are discussed in detail in the next section of
    this
    chapter.

    [6] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, paras
    1-2, available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [7] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, para 16,
    available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [8] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, para 17,
    available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [9] The Commission on Human Rights was a functional Commission that reported to the
    Economic and Social Council (which in turn reports to the General Assembly of
    the UN). By replacing this with a Human Rights Council, human rights would be
    elevated within the UN structure as the Council would report directly to the
    General Assembly and exist at an equal level to that of the Economic and Social
    Council.

    [10] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, para 1.
    The creation of the Council would also seek to address growing criticisms of the
    ineffectiveness of the Commission on Human Rights, such as the politicization of
    human rights issues and lack of genuine scrutiny of rights abuses by States
    (governments).

    [11] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, paras
    129-130, available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [12] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, para 113,
    available online at:
    www.un.org/largerfreedom/ accessed 21 February 2007. Emphasis added.
    [13] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, para 72,
    available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [14] 2005 World Summit Outcome: Resolution adopted by the General Assembly, UN
    Doc: A/Res/60/1, 24 October 2005. This is not to say that the Summit process and
    outcomes were not without controversy. Not all proposals for reform put forth by
    the Secretary-General were successful and the process and subsequent
    implementation of the decisions on reforms to the human rights system that took
    place after the Summit were extremely fraught, time consuming and full of
    controversy.

    [15] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, paras 123
    and 126, available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [16] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, para 169,
    available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [17] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, paras
    157-160, available online at:
    www.un.org/largerfreedom/ accessed 21 February 2007. The Summit also agreed to strengthen the Office of
    the High Commissioner for Human Rights through doubling its regular budget over
    the next five years (para 124) and to continue to improve the human rights
    treaty committee system (para
    125).

    [18] Human Rights Council: Resolution adopted by the General Assembly, UN Doc:
    A/RES/60/251, 3 April
    2006.

    [19] Human Rights Council: Resolution adopted by the General Assembly, UN Doc:
    A/RES/60/251, 3 April 2006. ‘Indivisibility’ means there is no
    hierarchy of human rights – all rights are of equal importance and should
    be protected
    equally.

    [20] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    UN Doc: A/59/2005, 21 March 2005, para 5,
    available online at:
    www.un.org/largerfreedom/ accessed 21 February
    2007.

    [21] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, para
    6.

    [22] As an example of a State to State complaint procedure see Article 41,
    International Covenant of Civil and Political
    Rights.

    [23] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, para
    6.

    [24] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, para
    7.

    [25] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, para
    7.

    [26] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, paras
    7-8. Emphasis added.

    [27] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General, Addendum - Human Rights Council, Explanatory
    note by the Secretary-General
    , UN Doc: A/59/2005/Add.1, 23 May 2005, para
    8.

    [28] Human Rights Council: Resolution adopted by the General Assembly, UN Doc:
    A/RES/60/251, 3 April 2006, para 9. The members ‘shall be elected directly
    and individually by secret ballot by the majority of the members of the General
    Assembly; the membership shall be based on equitable geographical distribution,
    and seats shall be distributed as follows among regional groups: Group of
    African States, thirteen; Group of Asian States, thirteen; Group of Eastern
    European States, six; Group of Latin American and Caribbean States, eight; and
    Group of Western European and other States, seven; the members of the Council
    shall serve for a period of three years and shall not be eligible for immediate
    re-election after two consecutive terms’: Human Rights Council:
    Resolution adopted by the General Assembly
    , UN Doc: A/RES/60/251, 3 April
    2006, para
    7.

    [29] Human Rights Council: Resolution adopted by the General Assembly, UN Doc:
    A/RES/60/251, 3 April 2006, para
    8.

    [30] For up to date details on the operation of the Human Rights Council visit: www.ohchr.org/english/bodies/hrcouncil/.
    [31] This will particularly be the case once the Declaration on the Rights of
    Indigenous Peoples has been approved by the General Assembly of the UN, as the
    Declaration would appropriately be considered as identifying ‘obligations
    and responsibilities to promote and protect’ human rights arising under
    the Charter of the
    UN.

    [32] Australia falls within the Western Europe and Other States regional grouping for
    the purposes of membership. Traditionally, Australia, the United States of
    America, New Zealand and Canada form part of the ‘Other States’
    group and rotate membership. Canada is confirmed as a member of the Council
    until 2009, and the CANZ group has decided that New Zealand will be the
    candidate for the following two terms (ie, 6 years from 2009).

    [33] For information on the role and activities of the Special Rapporteur see
    further:
    www.ohchr.org/english/issues/indigenous/rapporteur/.
    [34] For information on the role and activities of the Sub-Commission see further: www.ohchr.org/english/bodies/subcom/index.htm.
    [35] For information on the role and activities of the Working Group see: www.ohchr.org/english/issues/indigenous/groups/groups-01.htm.
    For an overview of the achievements of the WGIP over its 24 sessions, see: Information on achievements of the Working Group, UN Doc:
    E/CN.4/Sub.2/AC.4/2006/CRP.1, 30 June 2006, and Report
    of the Working Group on Indigenous Populations on its twenty-fourth session
    (Geneva, 31 July-4 August 2006)
    , UN Doc: A/HRC/Sub.1/58/22, 14 August 2006,
    Annex
    3.

    [36] An intergovernmental working group was established in June 2006 to conduct this
    review. See further Resolutions A/HRC/1/L.6 and
    A/HRC/1/L.14.

    [37] Human Rights Council: Resolution adopted by the General Assembly, UN Doc:
    A/RES/60/251, 3 April 2006, para 6. These processes are variously referred to as
    ‘mandates, mechanisms, functions and
    responsibilities’.

    [38] This was in accordance with paragraph 8 of ECOSOC Resolution 2000/22. This
    required a review of existing mechanisms across the UN within 2 years of the
    creation of the Permanent Forum on Indigenous Issues. See: Economic and Social
    Council, Information concerning indigenous issues requested by the Economic
    and Social Council – Report of the Secretary-General
    , UN Doc:
    E/2004/85, 6 July 2004 and Economic and Social Council, Information
    concerning indigenous issues requested by the Economic and Social Council
    – Report of the Secretary-General
    , UN Doc: E/2003/72, 23 June
    2003.

    [39] See in particular Annex A in Economic and Social Council, Information
    concerning indigenous issues requested by the Economic and Social Council
    – Report of the Secretary-General
    , UN Doc: E/2003/72, 23 June
    2003.

    [40] Economic and Social Council, Information concerning indigenous issues
    requested by the Economic and Social Council – Report of the
    Secretary-General
    , UN Doc: E/2004/85, 6 July 2004, para
    41.

    [41] Economic and Social Council, Information concerning indigenous issues
    requested by the Economic and Social Council – Report of the
    Secretary-General
    , UN Doc: E/2004/85, 6 July 2004, para
    43.

    [42] Economic and Social Council, Information concerning indigenous issues
    requested by the Economic and Social Council – Report of the
    Secretary-General
    , UN Doc: E/2004/85, 6 July 2004, para
    42.

    [43] See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC Sydney 2002,
    pp215-216.

    [44] Economic and Social Council, Information concerning indigenous issues
    requested by the Economic and Social Council – Report of the
    Secretary-General
    , UN Doc: E/2004/85, 6 July 2004, para
    44.

    [45] Economic and Social Council, Information concerning indigenous issues
    requested by the Economic and Social Council – Report of the
    Secretary-General
    , UN Doc: E/2004/85, 6 July 2004, para 45.

    [46] Economic and Social Council, Information concerning indigenous issues
    requested by the Economic and Social Council – Report of the
    Secretary-General
    , UN Doc: E/2004/85, 6 July 2004, para
    50.

    [47] 2005 World Summit Outcome: Resolution adopted by the General Assembly, UN
    Doc: A/Res/60/1, 24 October 2005, para 127. Italics added. Note: the use of the
    phrase ‘Indigenous peoples’ in the Summit Outcome Document
    represents a significant shift in the recognition provided to Indigenous peoples
    by the UN. The phrase ‘peoples’ (as opposed to ‘people’)
    denotes acceptance of a collective status for Indigenous nations, and hence the
    applicability of the principle of self-determination. This had also been
    recognised in the Programme of Action for the Second International Decade of the
    World’s Indigenous People. The usage of ‘peoples’ was not an
    oversight –the implication of using the phrase ‘peoples’ and
    whether to include it had been debated in the General Assembly in relation to
    the Program of Action for the Second International
    Decade.

    [48] This commitment is also clear in the General Assembly’s resolutions
    establishing the Second International Decade of the World’s Indigenous
    People and the Programme of Action for the Second Decade. These are discussed
    further in the next section of this
    report.

    [49] Extracted from: Communication Of the Indigenous Peoples’ Caucus to the
    President of the Human Rights Council on future United Nations mechanisms to
    protect and promote the human rights of Indigenous Peoples
    , Annex 4 in Report of the Working Group on Indigenous Populations on its twenty-fourth
    session (Geneva, 31 July-4 August 2006)
    , UN Doc: A/HRC/Sub.1/58/22, 14
    August 2006.

    [50] See further: Report of the Working Group on Indigenous Populations on its
    twenty-fourth session (Geneva, 31 July-4 August 2006),
    UN Doc:
    A/HRC/Sub.1/58/22, 14 August 2006, Annex 3 and Annex
    4.

    [51] Report of the Working Group on Indigenous Populations on its twenty-fourth
    session (Geneva, 31 July-4 August 2006),
    UN Doc: A/HRC/Sub.1/58/22, 14
    August 2006, Annex 3 and Annex
    4.

    [52] As examples of standard setting work that could be undertaken to support the
    implementation of the Declaration on the Rights of Indigenous peoples (once
    adopted by the General Assembly) see the ‘Minority Profile and
    Matrix’ implementation tool: Economic and Social Council, Reviewing the
    promotion and practical realization of the Declaration on the Rights of persons
    belonging to national or ethnic, religious and linguistic minorities
    , UN
    Doc: E/CN.4/Sub.2/2006/3, 23 June 2006.

    [53] Recommendations of the Working Group on Indigenous Populations with regard to
    the two documents which the Human Rights Council asked the Sub-Commission on the
    Promotion and Protection of Human Rights to submit, contained in Report of
    the Working Group on Indigenous Populations on its twenty-fourth session
    (Geneva, 31 July-4 August 2006),
    UN Doc: A/HRC/Sub.1/58/22, 14 August 2006,
    Annex 3 and Annex
    4.

    [54] Recommendations of the Working Group on Indigenous Populations with regard to
    the two documents which the Human Rights Council asked the Sub-Commission on the
    Promotion and Protection of Human Rights to submit, contained in Report of
    the Working Group on Indigenous Populations on its twenty-fourth session
    (Geneva, 31 July-4 August 2006),
    UN Doc: A/HRC/Sub.1/58/22, 14 August 2006,
    Annex 3 and Annex
    4.

    [55] Human Rights Council, Intersessional open-ended intergovernmental Working
    Group on the
    implementation of operative paragraph 6 of General Assembly
    resolution 60/251established pursuant to Human Rights Council decision 1/104
    Summary of the discussion on expert advice, UN Doc:
    A/HRC/3/CRP. 4, 30 November 2006, available online at:
    www.docip.org/Human%20Rights%20Council/Session3/5.Summary-Expert%20advice.pdf.
    [56] See for example, Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Native Title Report 2003, HREOC Sydney 2003, Chapter 3;
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
    Title Report 2005
    , HREOC Sydney 2005, Chapter 4; Aboriginal and Torres
    Strait Islander Social Justice Commissioner, Social Justice Report 2005,
    HREOC Sydney 2005, pp51-52. See also the discussion of the Common Understanding
    in Chapter 2 of this
    Report.

    [57] For a detailed discussion applying these principles within the Australian
    context see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2003, HREOC Sydney 2003, Chapter 1. See also: ME
    Salomon and A Sengupta, The Right to Development: Obligations of States and
    the Rights of Minorities and Indigenous Peoples
    , Issues Paper, Minority
    Rights Group International,
    2003.

    [58] The Common Understanding is discussed in detail in Chapter 2 of this
    report.

    [59] See for example, Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Social Justice Report 2000, HREOC Sydney 2000, Chapters 3
    and 4; Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC, Sydney, 2002, Chapter 2 and
    p188.

    [60] See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC, Sydney, 2002,
    pp13-19.

    [61] For an overview of the Human Rights Committee's jurisprudence on Article 27 see
    Jonas, W, The recognition of distinct cultural rights in international
    law
    , Speech, Lanzhou China 17 June 2000, Available online at:
    www.humanrights.gov.au/speeches/social_justice/recognition_of_cultural_rights.html,
    accessed 21 February 2007.

    [62] Lansman et al v Finland No. 2, (25 November 1996) CCPR/C/58/D/671/1995,
    para
    10.7.

    [63] Committee on the Elimination of Racial Discrimination, General Recommendation
    XXIII - Indigenous Peoples
    , UN Doc CERD/C/51/Misc.13/Rev.4, 18 August 1997,
    para 4. Emphasis
    added.

    [64] See for example, Committee on the Elimination of Racial Discrimination (CERD), Decision 2(54) on Australia - Concluding observations / comments, UN Doc:
    CERD/C/54/Misc.40/Rev.2, 19/3/1999; CERD, Concluding observations -
    Australia
    , UN Doc: CERD/C/304/Add.101,
    19/4/2000.

    [65] Working Group on Indigenous Populations, A preliminary working paper on the
    principle of free, prior and informed consent of indigenous peoples in relation
    to development affecting their lands and natural resources that would serve as a
    framework for the drafting of a legal commentary by the Working Group on this
    concept
    . UN Doc E/CN.4/Sub.2/AC.4/2004/4, 8 July 2004, available online at
    http://www.ohchr.org/english/issues/indigenous/docs/wgip22/4.pdf,
    accessed 21 February
    2007.

    [66] 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, 17 February 2005, available online at
    www.humanrights.gov.au/social_justice/conference/engaging_communities/report_of_the_international_workshop_on_fpic.pdf,
    accessed 21 February
    2007.

    [67] Aboriginal and Torres Strait Islander Social Justice Commissioner, Partnerships between Indigenous Peoples, governments and civil
    society
    , United Nations Workshop on Engaging the Marginalised, 2005
    International Conference on Engaging Communities, Brisbane, Australia, 15 August
    2005. Conference proceedings are available online at
    www.humanrights.gov.au/social_justice/conference/engaging_communities/index.html#link1 accessed 21 February
    2007.

    [68] 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, 14 July 2005, available
    online at
    www.ohchr.org/english/issues/indigenous/docs/wgip24/2005-wp1.doc,
    accessed 21 November 2007.

    [69] Working Group on Indigenous Populations, Standard setting: future priorities
    for standard-setting activities. Review of the draft principles and guidelines
    on the heritage of indigenous peoples
    , UN Doc: E/CN.4/Sub.2/AC.4/2006/5, 16
    June 2006.

    [70] For an overview of the existing human rights obligations and jurisprudence
    relating to the principle of free, prior and informed consent see: 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, 14 July 2005, paras 10-27;
    and Commission on Human Rights, Working Group on Indigenous Populations, Standard-Setting, Legal Commentary on the Concept of Free, Prior and Informed
    Consent
    , UN Doc E/CN.4/Sub.2/AC.42005/WP.1, 14 July 2005, available online
    at
    www.ohchr.org/english/issues/indigenous/docs/wgip24/2005-wp1.doc,
    accessed 21 February 2007.
    [ ]
    www.biodiv.org/doc/publications/akwe-brochure-en.pdf,
    accessed 21 February 2007.

    [72] Article 6 refers to the principle of free and informed consent in the context of
    establishing mechanisms for free participation at all levels of decision-making
    in “elective institutions and administrative bodies responsible for
    policies and programmes which concern (indigenous peoples)”. The article
    also refers to consultations through representative institutions whenever
    consideration is being given to legislative or administrative measures which may
    directly affect indigenous peoples. Article 7 provides: “The peoples
    concerned shall have the right to decide their own priorities for the process of
    development as it affects their lives, beliefs, institutions, and spiritual
    well-being and the lands they occupy or otherwise use, and to exercise control,
    to the fullest extent possible ,over their own economic, social and cultural
    development. In addition they shall participate in the formulation,
    implementation and evaluation of plans and programs for national and regional
    development, which may affect them directly...Governments shall ensure that
    whenever appropriate, studies are carried out, in cooperation with the peoples
    concerned, to assess the social, spiritual, cultural and environmental impact on
    them of planned development activities. The results of these studies shall be
    considered as fundamental criteria for the implementation of these
    activities”.

    [73] Secretariat of the Permanent Forum on Indigenous Issues, Engaging
    Indigenous Peoples in governance processes: International legal and policy
    frameworks for engagement,
    Background Paper submitted for
    United Nations Workshop on Engaging the Marginalised, 2005 International
    Conference on Engaging Communities, Brisbane, Australia, 15 August 2005, p4.
    Available online at:
    www.humanrights.gov.au/social_justice/conference/engaging_communities/unpan021100.pdf.
    [74] Extracted from: 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, 14 July 2005, paras 56-58,
    p15.

    [75] 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, 17 February 2005, para
    45.

    [76] 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, 17 February 2005, paras 46 -
    48.

    [77] United Nations, General Assembly, Programme of Action for the Second
    International Decade of the World’s Indigenous Peoples
    , UN Doc
    A/60/270, 18 August 2005, para 9, available online at
    www.un.org/esa/socdev/unpfii/en/second_programme_of_action.htm,
    accessed 22 November
    2006.

    [78] Canada, Australia, New Zealand and the United States of America, for example,
    have raised their opposition to this principle and identified this as one of the
    principle reasons for opposing the adoption of the Declaration on the Rights of
    Indigenous Peoples. See for example, the joint statement by Australia, New
    Zealand and the USA on free, prior and informed consent, delivered at the
    5th session of the Permanent Forum on Indigenous Issues, 22 May 2006,
    available online at
    www.docip.org/Permanent%20Forum/pfii5_185.PDF,
    accessed 22 November 2006; and Statement by Ambassador Paul Meyer (Canada) to
    the 1st session of the Human Rights Council, 29 June 2006, available
    online at
    www.docip.org/Human%20Rights%20Council/Session1/Intervention%20avant%20le%20vote/5.Canada.pdf,
    accessed 22 November
    2006.

    [79] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    21 March 2005, UN Doc: A/59/2005, paras
    129-130, available online at
    www.un.org/largerfreedom/,
    accessed 21 February
    2007.

    [80] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    21 March 2005, UN Doc: A/59/2005, para 139,
    available online at
    www.un.org/largerfreedom/,
    accessed 21 February
    2007.

    [81] In larger freedom: towards development, security and human rights for all,
    Report of the Secretary-General,
    21 March 2005, UN Doc: A/59/2005, para 72,
    available online at
    www.un.org/largerfreedom/,
    accessed 21 February
    2007.

    [82] United Nations, General Assembly, Draft Programme of Action for the Second
    International Decade of the World’s Indigenous Peoples
    , 18 August
    2005, UN Doc A/60/270, preamble, available online at
    http://www.tebtebba.org/tebtebba_files/unpf/pf5/N0546496-PoA%20of%202nd%20Decade.pdf,
    accessed 22 February
    2007.

    [83] United Nations General Assembly, United Nations Millennium Declaration,
    UN Doc: A/RES/55/2, 18 September 2000, available online at
    http://unstats.un.org/unsd/mdg/Resources/Static/Products/GAResolutions/55_2/a_res55_2e.pdf,
    accessed 22 February 2007. The goals were proposed by the Secretary-General of
    the UN, Kofi Annan, in his report We the peoples: The role of the United
    Nations in the twenty-first century,
    UN Doc: A/54/2000, 27 March 2000. For
    general background see: United Nations, Fact sheet: The Millennium
    Development Goals
    , United Nations Department of Public Information, New
    York, October 2002, available online at
    www.un.org/millenniumgoals/MDGs-FACTSHEET1.pdf,
    accessed 22 February 2007.

    [84] United Nations General Assembly, United Nations Millennium Declaration,
    UN Doc: A/RES/55/2, 18 September 2000, para
    11.

    [85] United Nations General Assembly, United Nations Millennium Declaration,
    UN Doc: A/RES/55/2, 18 September 2000, para
    6.

    [86] Permanent Forum on Indigenous Issues, Indigenous Peoples and the Millennium
    Development Goals,
    Website, available online at:
    www.un.org/esa/socdev/unpfii/en/mdgs.html.
    [87] Extracted from: Indigenous Peoples’ Organisations of Australia Human
    Rights Network, Report of consultations on the 5th session of the
    Permanent Forum on Indigenous Issues: 27-28 April 2006
    , HREOC Sydney
    2006.

    [88] Economic and Social Council, Report of the Inter-Agency Support Group on
    Indigenous Issues on its 2004 session
    , UN Doc: E/C.19/2005/2, 14 February
    2005, Annex 2, paras 4-6, available online at:
    http://daccessdds.un.org/doc/UNDOC/GEN/N05/237/10/PDF/N0523710.pdf?Open….

    [89] Permanent Forum on Indigenous Issues, Indigenous Peoples and the Millennium
    Development Goals,
    Website, available online at:
    www.un.org/esa/socdev/unpfii/en/mdgs.html.
    [90] See in particular the joint intervention by over 100 hundred Indigenous
    organisations submitted to the Permanent Forum on Indigenous Issues: Joint
    statement on the Draft UN Declaration on the Rights of Indigenous Peoples and
    Millennium Development Goals: Importance of a human rights-based approach
    ,
    22 May 2006.

    [91] Mililani Trask, Comments on behalf of the Global Indigenous Peoples’
    Caucus at the launch of the Second International Decade of the World’s
    Indigenous People
    , United Nations General Assembly, 12 May 2006, available
    online at:
    www.docip.org/Permanent%20Forum/pfii5_8.PDF.
    [92] Mililani Trask, Comments on behalf of the Global Indigenous Peoples’
    Caucus at the launch of the Second International Decade of the World’s
    Indigenous People
    , United Nations General Assembly, 12 May 2006, available
    online at:
    www.docip.org/Permanent%20Forum/pfii5_8.PDF.
    [93] Permanent Forum on Indigenous Issues, Report on the fifth session (15-26 May
    2006)
    , UN Doc: E/2006/43, para
    4.

    [94] Permanent Forum on Indigenous Issues, Report on the fifth session (15-26 May
    2006),
    UN Doc: E/2006/43, para
    11.

    [95] See further:
    www.un.org/esa/socdev/unpfii/en/workshops.html.

    [96] See further:
    www.un.org/esa/socdev/unpfii/en/workshops.html.

    [97] Permanent Forum on Indigenous Issues, Report of the meeting on Indigenous
    peoples and indicators of well-being
    , UN Doc: E/C.19/2006/CRP.3, 20 April
    2006, Available online at
    www.un.org/esa/socdev/unpfii/documents/workshop_indic_report.doc,
    accessed 26 February 2007.

    [98] Permanent Forum on Indigenous Issues, Report of the meeting on Indigenous
    peoples and indicators of well-being
    , UN Doc: E/C.19/2006/CRP.3, 20 April
    2006, paras
    9-20.

    [99] Permanent Forum on Indigenous Issues, Report of the meeting on Indigenous
    peoples and indicators of well-being
    , UN Doc: E/C.19/2006/CRP.3, 20 April
    2006, para
    33.

    [100] Permanent Forum on Indigenous Issues, Report of the meeting on Indigenous
    peoples and indicators of well-being
    , UN Doc: E/C.19/2006/CRP.3, 20 April
    2006, para
    34.

    [101] Permanent Forum on Indigenous Issues, Report of the meeting on Indigenous
    peoples and indicators of well-being
    , UN Doc: E/C.19/2006/CRP.3, 20 April
    2006, pp 10-14.

    [102] See further: www.pc.gov.au/gsp/indigenous/index.html,
    and Social Justice Report 2005, HREOC, Sydney, 2005, Chapter
    3.

    [103] Steering Committee for the Review of Government Service Provision, Overcoming
    Indigenous disadvantage: Key indicators, Request for comment – March
    2006
    , Productivity Commission, Melbourne 2006, p3, available online at:
    www.pc.gov.au/gsp/indigenous/consultation2006/consultationpaper.pdf.
    [104] Steering Committee for the Review of Government Service Provision, Overcoming
    Indigenous disadvantage: Key indicators, Questionnaire – March 2006
    ,
    Productivity Commission, Melbourne 2006, pp 3-10, available online at:
    www.pc.gov.au/gsp/indigenous/consultation2006/consultationquestionnaire.pdf.
    [105] For an overview of the concerns of Indigenous Peoples Organisations see:
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
    Justice Report 2002
    , HREOC, Sydney, 2002,
    pp193-200.

    [106] United Nations General Assembly, Resolution - Second International Decade of
    the World’s Indigenous People
    , UN Doc: A/RES/59/174, 20 December 2004,
    available online at:
    www.un.org/esa/socdev/unpfii/en/second.html.
    [107] United Nations, General Assembly, Programme of Action for the Second
    International Decade of the World’s Indigenous Peoples
    , UN Doc
    A/60/270, 18 August 2005, para
    4.

    [108] This included an open invitation to all Governments as well as Indigenous
    organisations to submit proposals for inclusion in the Program in February 2005;
    discussion on this theme at the Permanent Forum in May 2005 and the Working
    Group on Indigenous Populations in July 2005; the circulation of a draft program
    for further comment to all governments as well as Indigenous organisations in
    May 2005; the revision of this following the Permanent Forum meeting in May 2005
    and posting of a revised program on the internet, with further comments sought
    from all governments as well as Indigenous organisations. See further: United
    Nations, General Assembly, Programme of Action for the Second International
    Decade of the World’s Indigenous Peoples
    , UN Doc A/60/270, 18 August
    2005, paras
    5-7.

    [109] United Nations, General Assembly, Programme of Action for the Second
    International Decade of the World’s Indigenous Peoples
    , UN Doc
    A/60/270, 18 August 2005, paras 1,
    8-10.

    [110] United Nations General Assembly, Summary record of the 45th meeting: 3rd Committee, held at United Nations Headquarters, New
    York, on Monday, 21 November 2005, General Assembly, 60th session, UN
    Doc: A/C.3/60/SR.45, 8 December 2005, available online at: 
    http://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/611/94/doc/N0561194.DOC?OpenElement.
    Emphasis
    added.

    [111] United Nations, General Assembly, Programme of Action for the Second
    International Decade of the World’s Indigenous Peoples
    , UN Doc
    A/60/270, 18 August 2005, paras 21 –
    90.

    [112] United Nations, General Assembly, Programme of Action for the Second
    International Decade of the World’s Indigenous Peoples
    , UN Doc
    A/60/270, 18 August 2005, paras
    91-99.

    [113] Note that there is a dynamic interchange between these objectives. For example,
    the standard-setting processes of the Declaration on the Rights of Indigenous
    Peoples and the elaboration of indigenous specific rights in the WGIP and
    Permanent Forum have had an impact on the interpretation of existing human
    rights standards, with a resultant broadening in the coverage of those
    provisions. This broadened coverage might not, however, have occurred without this emphasis on developing Indigenous specific
    rights.

    [114] Eide, A and Daes, E, Working paper on the relationship and distinction
    between the rights of persons belonging to minorities and those of indigenous
    peoples
    , UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para
    2.

    [115] Eide, A and Daes, E, Working paper on the relationship and distinction
    between the rights of persons belonging to minorities and those of indigenous
    peoples
    , UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para
    18.

    [116] Eide, A and Daes, E, Working paper on the relationship and distinction
    between the rights of persons belonging to minorities and those of indigenous
    peoples
    , UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para
    2.

    [117] Eide, A and Daes, E, Working paper on the relationship and distinction
    between the rights of persons belonging to minorities and those of indigenous
    peoples
    , UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para
    19.

    [118] Eide, A and Daes, E, Working paper on the relationship and distinction
    between the rights of persons belonging to minorities and those of indigenous
    peoples
    , UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para
    2.

    [119] Eide, A and Daes, E, Working paper on the relationship and distinction
    between the rights of persons belonging to minorities and those of indigenous
    peoples
    , UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para
    21.

    [120] International Council on Human Rights Policy, Human rights standards –
    learning from experience
    , International Council on Human Rights Policy,
    Versoix, Switzerland 2006, pp7-9, available online at:
    www.ichrp.org/public/publications.php?id_projet=19&lang=AN.
    [121] As noted in section 1 of this chapter, there have been some positive
    developments in providing this recognition through the various human rights
    treaty committees in the past decade. These Committees have provided recognition
    to the rights of indigenous peoples to effective participation in
    decision-making that affects them. The treaty committees have recognised that
    the protection of the rights to land and resources of indigenous peoples is an
    integral component of obligations to ensure equality before the law and
    non-discrimination, as well as to protect the cultures of minority groups. The
    Committee on the Elimination of Racial Discrimination (CERD) has issued a
    General Recommendation on Indigenous People which emphasises in paragraph 4(a)
    that the International Convention on the Elimination of All Forms of Racial
    Discrimination (ICERD) places obligations on States to ‘recognise and
    respect indigenous peoples distinct culture, history, language and way of life
    as an enrichment of the State's cultural identity and to promote its
    preservation’. This recognition through the existing human rights treaties
    is extremely important. It is not, however, sufficient to address the scope of
    the normative protection gap that currently exists for indigenous peoples,
    particularly due to the individual nature of existing human rights protections
    and also the requirement that a country has ratified the relevant treaty for
    these obligations to be enlivened (and therefore the protections available to
    apply universally to indigenous peoples).

    [122] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
    Justice Report 2002
    , HREOC Sydney 2002,
    pp185-189.

    [123] Preamble, United Nations Declaration on the Rights of Indigenous Peoples,
    as adopted by the UN Human Rights Council on 29 June 2006, UN Doc: A/HRC/1/L.3,
    23 June 2006, Annex, available online at:
    www.ohchr.org/english/issues/indigenous/docs/wgdd2006/18-rev1.doc.
    [124] Preamble, United Nations Declaration on the Rights of Indigenous Peoples, as
    adopted by the UN Human Rights Council on 29 June 2006, UN Doc: A/HRC/1/L.3, 23
    June
    2006.

    [125] The Declaration, as approved by the Human Rights Council, is available online
    at:
    www.ohchr.org/english/issues/indigenous/docs/declaration.doc.
    [126] For a detailed description of the Declaration’s structure (prior to the
    changes accepted by the Human Rights Council) see: Pritchard, S., An analysis
    of the United Nations Draft Declaration on the Rights of Indigenous Peoples
    ,
    ATSIC Canberra 1999. See also: Charters, C, ‘The rights of Indigenous
    peoples’, New Zealand Law Journal, October 2006, pp
    335-337.

    [127] This Text Box is adapted (with some additions) from Global Indigenous Peoples
    Caucus, Fact sheet – The Declaration on the Rights of Indigenous
    Peoples
    , Available online at:
    http://www.ipcaucus.net/IK_1.html.
    [128] For an overview of the history of the Declaration see: Aboriginal and Torres
    Strait Islander Social Justice Commissioner, Social Justice Report 2002,
    pp 11-19, 210-215. See also: Calma, T, Indigenous peoples and the right to
    self-determination
    , Speech, International Law Association (Australian
    Division) and HREOC workshop: Indigenous Peoples and Sovereignty - does
    sovereignty mean secession?,
    HREOC, Sydney, 10 November 2004, available
    online at:
    www.humanrights.gov.au/speeches/social_justice/sovereignty_seminar.html.
    [129] Human Rights Council, Resolution 2006/2 - Working group of the Commission on
    Human Rights to elaborate a draft Declaration in accordance with paragraph 5 of
    the General Assembly resolution 49/214 of 23 December 1994
    , UN Doc:
    A/HRC/1/L.3, 23 June 2006, available online at:
    www.ohchr.org/english/issues/indigenous/docs/declaration.doc.
    [130] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its tenth session
    , UN Doc: E/CN.4/2005/89, 28 February 2005, para 48,
    available online at:
    www.ohchr.org/english/issues/indigenous/groups/sessions-02.htm.
    [131] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its tenth session
    , UN Doc: E/CN.4/2005/89, 28 February 2005, para 59.

    [132] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, paras 11-26,
    available online at:
    www.ohchr.org/english/issues/indigenous/groups/groups-02.htm.
    [133] Note: the numbering of Articles and paragraphs refers to the existing ordering
    of the Declaration at the time of negotiations – these have varied
    slightly in the subsequent official version of the Declaration. The Articles are
    referred to in the thematic clusters in which they were considered.

    [134] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para 25. Note:
    Articles 5 and 43 were provisionally adopted in earlier sessions of the Working
    Group and can be added to this
    list.

    [135] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    25.

    [136] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    24.

    [137] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    21.

    [138] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    24.

    [139] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    19.

    [140] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    23.

    [141] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    20.

    [142] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    22.

    [143] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    24.

    [144] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    28.

    [145] Commission on Human Rights, Report of the working group established in
    accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on
    its eleventh session
    , UN Doc: E/CN.4/2006/79, 22 March 2006, para
    30.

    [146] Global Indigenous Peoples’ Caucus, Closing statement – Human
    Rights Council
    , 30 June 2006, available online at:
    www.humanrights.gov.au/social_justice/drip/closing.html.
    [147] Extracted from Mokhiber, C, Declaration a historic document, out of a
    historic process
    , Panel Presentation, New York, 4 November 2006, available
    online at:
    http://www.ipcaucus.net/Mokhiber.html.
    For further information on the panel discussion see;
    http://www.ipcaucus.net/Panel_061026.html.
    [148] Only the 47 elected members of the Human Rights Council can
    vote.

    [149] For further information see: Statement by Ambassador Paul Meyer (Canada) to the
    1st session of the Human Rights Council, 29 June 2006, available
    online at
    www.docip.org/Human%20Rights%20Council/Session1/Intervention%20avant%20le%20vote/5.Canada.pdf,
    accessed 22 November
    2006.

    [150] Human Rights Council, Statement to the Human Rights Council by the Canadian
    Delegation – Working Group on the Draft Declaration on the Rights of
    Indigenous Peoples
    , 27 June 2006, pp1-2, available online at:
    www.docip.org/Human%20Rights%20Council/Session1/cddh1_2.pdf.
    [151] While none of these countries have been elected as members of the Human Rights
    Council, they will be able to vote on the Declaration at the General
    Assembly.

    [152] Human Rights Council, Joint statement by Australia, New Zealand and the
    United States of America on the Chair’s text on the Declaration on the
    Rights of Indigenous Peoples
    , 27 June 2006, p1, available online at:
    www.docip.org/Human%20Rights%20Council/Session1/cddh1_22.pdf.

    [153] Human Rights Council, Joint statement by Australia, New Zealand and the
    United States of America on the Chair’s text on the Declaration on the
    Rights of Indigenous Peoples
    , 27 June 2006,
    p1.

    [154] Human Rights Council, Joint statement by Australia, New Zealand and the
    United States of America on the Chair’s text on the Declaration on the
    Rights of Indigenous Peoples
    , 27 June 2006,
    p2.

    [155] Human Rights Council, Joint statement by Australia, New Zealand and the
    United States of America on the Chair’s text on the Declaration on the
    Rights of Indigenous Peoples
    , 27 June 2006,
    p2.

    [156] Human Rights Council, Joint statement by Australia, New Zealand and the United
    States of America on the Chair’s text on the Declaration on the Rights of
    Indigenous Peoples, 27 June 2006, p2. See also the joint statement by Australia,
    New Zealand and the USA on free, prior and informed consent, delivered at the
    5th session of the Permanent Forum on Indigenous Issues, 22 May 2006,
    available online at
    www.docip.org/Permanent%20Forum/pfii5_185.PDF,
    accessed 22 November
    2006.

    [157] For a detailed analysis of this issue see further: Calma, T (Aboriginal and
    Torres Strait Islander Social Justice Commissioner), Indigenous peoples and
    the right to self-determination
    , Speech, International Law Association
    (Australian Division) and HREOC workshop: Indigenous Peoples and Sovereignty
    - does sovereignty mean secession?
    , HREOC, Sydney, 10 November 2004,
    available online at:
    www.humanrights.gov.au/speeches/social_justice/sovereignty_seminar.html.
    [158] For an overview of this debate see further: Commission on Human Rights, Conference Room Paper – 11th session of the Working Group on
    the Declaration on the Rights of Indigenous Peoples: International workshop on
    the draft United Nations Declaration on the Rights of Indigenous Peoples,
    Patzcuaro, Michoacán, Mexico, 26 – 30 September 2005
    , UN Doc:
    E/CN.4/2005/WG.15/CRP.1, 29 November 2005, pp4-5, available online at:
    www.ohchr.org/english/issues/indigenous/docs/wgdd2005/crp1.doc.
    [159] See further: Commission on Human Rights, Conference Room Paper –
    11th session of the Working Group on the Declaration on the Rights of
    Indigenous Peoples: International workshop on the draft United Nations
    Declaration on the Rights of Indigenous Peoples, Patzcuaro, Michoacán,
    Mexico, 26 – 30 September 2005
    , UN Doc: E/CN.4/2005/WG.15/CRP.1, 29
    November 2005,
    pp6-7.

    [160] Emphasis added. As quoted in Aboriginal and Torres Strait Islander Social
    Justice Commissioner, Social Justice Commissioner praises United Nations
    Human Rights Council for adopting the Declaration on the Rights of Indigenous
    Peoples,
    Statement, 30 June 2006, available online at:
    www.humanrights.gov.au/media_releases/2006/47_06.htm.
    [161] Joint intervention by numerous Indigenous organisations at the Permanent Forum
    on Indigenous Issues under Agenda item 4(b), The Draft U.N. Declaration on
    the Rights of Indigenous Peoples and Millennium Development Goals: Importance of
    a Human
    Rights-Based
    Approach
    , 22 May 2006, available online at http://www.hreoc.gov.au/social_justice/drip/joint_statement.html,
    accessed 6 March
    2007.

    [162] UN Doc: A/C.3/61/L.57/Rev.1, 21 November 2006, available online at: www.un.org/Docs/journal/asp/ws.asp?m=A/C.3/61/L.57/Rev.1.
    For an overview of the debate in the Third Committee see:
    www.un.org/News/Press/docs/2006/gashc3878.doc.htm.
    [163] Aboriginal and Torres Strait Islander Social Justice Commissioner, Statement
    on the Declaration on the Rights of Indigenous Peoples
    , 29 November 2006,
    available online at:
    www.humanrights.gov.au/media_releases/2006/97_06.htm.
    [164] Aboriginal and Torres Strait Islander Social Justice Commissioner, Statement
    on the Declaration on the Rights of Indigenous Peoples
    , 29 November 2006,
    p1.

    [165] General Assembly, The situation of human rights and fundamental freedoms of
    indigenous peoples – Report of the Special Rapporteur
    , UN Doc:
    A/59/258, 12 August 2004, para 66, available online at
    http://daccessdds.un.org/doc/UNDOC/GEN/N04/458/74/PDF/N0445874.pdf?OpenElement,
    accessed 6 March
    2007.

    [166] Commission on Human Rights, Human rights and indigenous issues – Report
    of the Special Rapporteur on the situation of human rights and fundamental
    freedoms of indigenous peoples
    , UN Doc: E/CN.4/2002/97, 4 February 2002,
    para 102, available online at
    http://www.unhchr.ch/Huridocda/Huridoca.nsf/e06a5300f90fa0238025668700518ca4/fef67856bf0a29aac1256ba000566817/$FILE/G0210629.pdf,
    accessed 6 March
    2007.

    [167] General Assembly, The situation of human rights and fundamental freedoms of
    indigenous peoples – Report of the Special Rapporteur
    , UN Doc:
    A/60/358, 16 September 2005, paras 69-70, available online at
    http://daccessdds.un.org/doc/UNDOC/GEN/N05/513/14/PDF/N0551314.pdf?OpenElement,
    accessed 6 March 2007.

    [168] Information available online at: www.acfid.asn.au/.
    [169] Attorney-General, Correspondence with Aboriginal and Torres Strait Islander
    Social Justice Commissioner - Funding for Indigenous Participation in
    International Deliberations
    , 6 December
    2005.

    [170] The activities to which funding is allocated is discussed annually in the Annual
    Report of the Human Rights and Equal Opportunity Commission, available online
    at:
    www.humanrights.gov.au/publications/index.html#annrep.
    [171] Aboriginal and Torres Strait Islander Social Justice Commissioner, Correspondence with Attorney-General on Indigenous Participation in
    International Deliberations,
    3 March 2006.

    [172] Aboriginal and Torres Strait Islander Social Justice Commissioner, Correspondence with Attorney-General on Indigenous Participation in
    International Deliberations,
    3 March
    2006.

    [173] Attorney General, Correspondence with Aboriginal and Torres Strait Islander
    Commissioner – Response to the Aboriginal and Torres Strait Islander
    Commissioner’s letter regarding Funding for Indigenous Participation in
    International Deliberations
    , 31 March 2006.