Aboriginal and Torres Strait Islander Social Justice Commissioner

Participation in decision-making, EMRIP – 11 July 2011

Participation in decision-making

…………………………
Aboriginal and Torres Strait Islander Social Justice Commissioner’s Submission to the Expert Mechanism on the Rights of Indigenous Peoples, 4th session.

11 July 2011

Table of Contents

1Introduction

2Summary

2.1Recommendations

3Participation in decision-making

4Lateral violence and participation in decision-making

5Good practices in participation in decision-making

6Appendix

1Introduction

The Aboriginal and Torres Strait Islander Social Justice Commissioner (Social Justice Commissioner makes this submission to the Expert Mechanism on the Rights of Indigenous Peoples in relation to Agenda Item 4:Participation in decision-making. The Social Justice Commissioner is a member of the Australian Human Rights Commission (Commission).
The Commission is Australia’s National Human Rights Commission (NHRI) and proud history of advocating for the protection of the rights of Aboriginal and Torres Strait Islander peoples (the Indigenous peoples of Australia).
The Social Justice Commissioner is an identified office which has specific functions to monitor the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.
The Special Rapporteur on the Rights of Indigenous Peoples has acknowledged that this position is an ‘exceptional model for advancing the recognition and protection of rights of indigenous peoples’.[1]
This dedicated Commissioner provides for a focus on Indigenous issues, within the Commission, at all times. The Social Justice Commissioner’s functions include:
to submit a report (Social Justice Report) to the federal Parliament annually regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders, and including recommendations as to the action that should be taken to ensure the enjoyment and exercise of human rights by those persons
to submit a report (Native Title Report) to the federal Attorney-General on an annual basis on the effect of native title laws on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders
to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders
to undertake research and educational programs, and other programs, for the purpose of promoting respect for the human rights of Aboriginal persons and Torres Strait Islanders and promoting the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders
to examine enactments, and proposed enactments, for the purpose of ascertaining whether they recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders, and to report to the Minister the results of any such examination.

The Social Justice Commissioner is supported by a small team of policy staff in the Social Justice Unit of the Commission.

2Summary

The Social Justice Commissioner welcomes the final study on indigenous peoples and the right to participate in decision-making and Expert Mechanism advice No. 2.
The Close the Gap Campaign for Indigenous Health Equality (Close the Gap)is an example of the role that NHRIs can play in bringing together parties to promote the participation of Indigenous peoples in matters that affect them.
NHRIs can identify and raise the profile of good practices of Indigenous peoples’ participation in decision-making.
Despite increased guidance at the international level, it appears that governments do not have a clear understanding of what the principles of free, prior and informed consent and self-determination mean in a practical sense.
Lateral violence is exacerbated where there is a breakdown of Indigenous peoples internal decision-making structures and processes. To prevent this it is important that indigenous peoples’ internal decision-making processes are respected and supported by governments and other parties.
Effective engagement with indigenous peoples is essential to ensure that external decision-making supports internal decision-making processes of indigenous peoples.
The Social Justice Commissioner’sSocial Justice Report 2010showcases the Aboriginal communities in the Fitzroy Valley which are taking control of issues that affect them, through:
Community-led alcohol restrictions
The creation of an innovative governance structure
The development of a community-led collaborative project to address Fetal Alcohol Spectrum Disorders.

2.1Recommendations

The Expert Mechanism and the Human Rights Council urge all States to enter formal dialogues with Indigenous peoples and their representatives at the domestic level to develop agreed understandings on the principles of free, prior, and informed consent, and self-determination; and negotiate appropriate mechanisms to realise them.
The Expert Mechanism and the Human Rights Council urge all States to commit to working with Indigenous peoples, and their National Human Rights Institutions to:
identify and address the systemic barriers to the effective engagement and participation of Indigenous peoples in decision-making; and
draw on best practice to assist them in improving engagement with Indigenous peoples.
The Expert Mechanism conduct a study on the effects of Lateral Violence on the full realisation of the rights of Indigenous peoples, particularly their right to participate and to give their free, prior and informed consent in decisions that affect them, and the right of self-determination.
The Expert Mechanism addend the effective engagement and consultation Frameworkoutlined in the Native Title Report 2010(Appendix A), to the Expert Mechanism advice No. 2 as a recommended international standard of engagement for States and relevant stakeholders entering negotiations with Indigenous peoples.
That the Expert Mechanism work with the Human Rights Council to include in the Universal Periodic Review a framework to assess whether the engagement practices of States and relevant stakeholders are consistent with the Declaration; and that the participation of Indigenous peoples in decisions that affect them is being progressively realised.

3Participation in decision-making

The Social Justice Commissioner welcomes the final study on indigenous peoples and the right to participate in decision-making and Expert Mechanism advice No. 2. When read together, the Progress Report and the Final Study provide a solid framework and extensive guidance on improving state based mechanisms for increasing Indigenous peoples participation in decision making; including:
the recognition, integration, and application of Indigenous determined decision-making practices into such mechanisms
that the right to participate in decision-making does not just mean telling Indigenous peoples what you are going to do to us – but that we are assured an active role in determining not only the policy but the desired the outcomes
the need for consultations and negotiations with Indigenous peoples to comply with the human rights standards set out in the Declaration on the Rights of Indigenous Peoples.
In particular the Social Justice Commissioner supports the Expert Mechanism’s statement that NHRIs can ‘play an important role in bringing together representatives of Government and indigenous peoples, thus promoting the participation of indigenous peoples in discussions and decisions on issues that concern them’.[2]
The Social Justice Commissioner is of the view that the Close the Gap provides an example of good practice in this role that NHRIs can play.[3] The Close the Gap Campaign was founded in March 2006 by the then Social Justice Commissioner Dr Tom Calma. It continues under the current Social Justice Commissioner, Mick Gooda, with both acting as Co-chairs of a campaign steering committee comprising all national-level Aboriginal and Torres Strait Islander health and heath-professional peak bodies, and the majority of non-Indigenous health professional peak bodies.
The Commission, and the Social Justice Commissioner in particular, was uniquely place to forge this grouping – which the Commission believes is to be unique in the history of Indigenous health in Australia. It did so in the following ways:
First, by providing an approach the would-be campaign committee could gather around. This was an authoritative articulation of the right to health of Aboriginal and Torres Strait Islander peoples as it operated in relation to their health inequality, and –most importantly – rights based solutions to closing the many ‘opportunity gaps’ in relation to their access to health services and so forth. This articulation was, in effect, ‘politically neutral’ in that it was based on a logical extrapolation of the right to health.[4] The solutions proposed were also highly pragmatic and rhymed with approaches many would-be Committee members were already adopting, albeit without the informing of the human rights framework. For example, the Aboriginal Community Controlled Health Services had been operational since the late 1960s, prior to a detailed understanding of what the right to health meant, yet its services developed in alignment with what would later be understood to be key elements of the right to health. In short, the articulation of the human rights framework to both analyse the problem of Indigenous health inequality and provide a solution was a way forward the Committee membership could gather around.
This articulation placed empowerment and control of Aboriginal and Torres Strait Islander peoples and their (health) representatives at the centre of any approach to address health inequality. Once clearly understood, the human rights approach required that these bodies begin to work together to a common end.
Finally, the Commissioner’s role is also politically neutral in the sense that they stand outside of the health sector and are able to – in that position – bring together parties that have traditionally been in conflict and competed for resources (for example: doctors and nurses; Aboriginal and Torres Strait Islander health services and GPs/ mainstream practitioners). In this capacity they were trusted not only with a leadership role, but also with the governance of a small, part-time campaign secretariat that operates from the Commission.
In addition to this NHRIs can raise the identify and raise the profile of good practices of Indigenous peoples’ participation in decision-making. Section 5is an example of how the Social Justice Commissioner has showcased the good practices that have occurred in the Fitzroy Valley in Western Australia.
NHRIs can also advocate for the establishment of representative bodies for Indigenous peoples. In 2007 the Social Justice Commissioner commenced research on options for a national representative body for Aboriginal and Torres Strait Islander peoples. This research was published in 2008 and instigated a national consultation process convened by the Social Justice Commissioner.[5] These processes have culminated in the establishment of the National Congress of Australia’s First Peoples.[6]
However, despite increased guidance at the international level, the Social Justice Commissioner is concerned that governments do not have a clear understanding of what the principles of free, prior and informed consent and self-determination mean in a practical sense to Indigenous communities, or how to effectively and appropriately integrate them into their processes, policies and programs.
The Australian Government is currently undertaking consultations with Aboriginal people in the Northern Territory on the post Northern Territory Emergency Response policy framework.[7] The Australian Government have faced significant criticism both domestically and internationally about this policy generally, but in particular on their exclusion of those Aboriginal people effected in the design and implementation of the policy to date. The Social Justice Commissioner’s office will monitor and provide advice to government about its processes of engagement and assess it against the standards of the Declaration, although the Social Justice Commissioner is concerned that the Government is not using the Declaration to assess their consultation processes, despite arguing that its engagement is consistent with the Declaration.

4Lateral violence and participation in decision-making

The Social Justice Commissioner has identified addressing lateral violence a key priority during his term.[8] Lateral violence occurs when oppressed people eventually internalise this oppression and turn on each other. It includes:

the organised, harmful behaviours that we do to each other collectively as part of an oppressed group; within our families, within our organisations and within our communities. Lateral violence is the expression of rage and anger, fear and terror that can only be safely vented upon those closest to us when we are being oppressed.[9]

Lateral violence festerswhere there is a breakdown of Indigenous peoples internal decision-making structures and processes.[10]

Active and effective participation in decision-making is an essential component of addressing lateral violence. In this regard, recognition that the right to decision-making as articulated in the Declaration has two distinct elements, internal and external, is particularly important.[11]
The Social Justice Commissioner believes that it is essential that the internal decision-making processes of Indigenous peoples are respected by external parties including governments. Where necessary it is important that the capacity of Indigenous peoples to develop and maintain effective internal decision-making processes is built.
The external element of the right to participate in decision-making requires governments and other third parties to facilitate the active involvement of Indigenous peoples in decisions that impact on their rights. This requires that governments and other players to recognise, include and treat Indigenous peoples as substantive players and major stakeholders in the development, design, implementation, monitoring and evaluation of all policy and legislation that impacts them.
For this to be achieved there must be effective engagement with Indigenous peoples. The Social Justice Commissioner has developed a number of principles which should underpin effective and meaningful engagement at Appendix A.[12] The Social Justice Commissioner recommends that these principles are addended to the Expert Mechanism advice No 2 as they provide guidance for States to effectively engage with Indigenous peoples and will mitigate against external decision-making processes from perpetuating lateral violence or intra-Indigenous disputes.
These identified features can guide the nature in which governments and others engage with Indigenous peoples and can ensure these interactions do not operate to divide and further disempower communities.
External consultation, engagement and participation processes need to be adequately structured to allow Indigenous peoples and communities internal decision-making, and if necessary dispute resolution, processes to occur without pressure. External processes should not become a platform for internal disputes to be played out. As such it is important that external processes operate to strengthen not weaken internal processes.

5Good practices in participation in decision-making

In the Social Justice Report 2010 the Social Justice Commissioner examined how the Indigenous peoples in the Fitzroy Valley of remote Western Australia are taking control of the issues that affect them.[13]In particular, three ways in which these communities have taken control are examined:
Community-led alcohol restrictions to address the damage caused by alcohol abuse. A significant portion of the community including local elders and community leadership supported and successfully lobbied for alcohol restrictions.
The creation of an innovative governance structure, the Fitzroy Futures Forum, which combines local voices with government voices. It has led to the development of trusting relationships and has built community capacity and decision-making power.
The development of a community-led collaborative project to address an issue identified by the community as one of concern, Fetal Alcohol Spectrum Disorders.
The Fitzroy Valley experience clearly shows the transformative potential of community empowerment, community control and genuine engagement in addressing social challenges confronting Indigenous peoples. When Indigenous peoples take control of the issues confronting their communities, and are appropriately supported by governments, better outcomes are achieved.
For detailed information on the actions taken by the communities of the Fitzroy Valley see Appendix B.

6Appendix

Appendix A:Principles for meaningful and effective engagement.
Appendix B: From community crisis to community control in the Fitzroy Valley.

APPENDIX A: Principles for meaningful and effective engagement

Features of a meaningful and effective consultation process[14]

The objective of consultations should be to obtain the consent or agreement of the Indigenous peoples affected by a proposed measure

In all cases, States should engage in ‘[a] good faith effort towards consensual decision-making’.[15] Consultation processes should therefore be framed ‘in order to make every effort to build consensus on the part of all concerned’.[16]

Consultation processes should be products of consensus.

The details of a specific consultation process should always take into account the nature of the proposed measure and the scope of its impact on Indigenous peoples. A consultation process should itself be the product of consensus. This can help ensure that the process is effective.

Consultations should be in the nature of negotiations

Governments need to do more than provide information about measures that they have developed on behalf of Indigenous peoples and without their input. Further, consultations should not be limited to a discussion about the minor details of a policy when the broad policy direction has already been set.

Governments need to be willing and flexible enough to accommodate the concerns of Indigenous peoples, and work with them in good faith to reach agreement. Governments need to be prepared to change their plans, or even abandon them, particularly when consultations reveal that a measure would have a significant impact on the rights of Indigenous peoples, and that the affected peoples do not agree to the measure.

Consultations need to begin early and should, where necessary, be ongoing

Indigenous peoples affected by a law, policy or development process should be able to meaningfully participate in all stages of its design, implementation and evaluation.

Indigenous peoples must have access to financial, technical and other assistance

The capacity of Indigenous communities to engage in consultative processes can be hindered by their lack of resources. Even the most well-intentioned consultation procedure will fail if Indigenous peoples are not resourced to participate effectively. Without adequate resources to attend meetings, take proposals back to their communities or access appropriate expert advice, Indigenous peoples cannot possibly be expected to consent to or comment on any proposal in a fully informed manner.