Free Prior and participation in decision-making Informed Consent (Articles 10, 11, 19, 28, 29 and 32)
Development and economic and social rights: outlines how Indigenous peoples have rights to participate in decisions about their future, determine how they want to develop whilst having equal access to the services the broader community has access to (Articles 18, 19, 20, 21, 22, 23).
Indigenous peoples have the right to participate in decision-making in matters which affect our rights, through representatives we chose. As part of this, we have a right to maintain and develop our own decision-making institutions. In order to ensure effective participation in decision-making, three key elements must be met:
- the duty to consult;
- free, prior and informed consent; and
- good faith.
Governments have a duty to consult with Indigenous peoples ‘whenever a State decision may affect indigenous peoples in ways not felt by others in society’.
Governments must promote our right to participate in all levels of decision-making. This means ensuring that consultation processes are framed ‘to make every effort to build consensus on the part of all concerned’ and that contemporary forms our governance, including collective decision-making structures and practices, are respected.
Free, prior, and informed consent is fundamental to ensuring effective participation. It should underpin the development of all frameworks for engagement with Indigenous peoples. It requires that:
- there has been no coercion or manipulation used to gain our consent
- consent was sought well in advance of commencing an activity or implementing legislation
- all relevant information has been provided, in our local languages if required
- meaningful participation is provided in all aspects of assessment, planning, implementation, monitoring and closure of a project
- there is access to advisers, including legal counsel, if required.
A guide to free, prior and informed consent can be found here http://resources.oxfam.org.au/pages/view.php?ref=528&k=
The requirement to act in good faith ensures that decision-making processes are fair, cooperative and consistent with cultural practices. This means that all parties involved in the decision-making – Indigenous and non-indigenous –need to be respectful of each other’s needs and priorities, and be prepared to engage with the intent of reaching an agreed outcome.
However, the duty of good faith of itself does not in itself ensure that we are positioned to engage or negotiate on a footing that is equal. Therefore it must be applied in conjunction with the other two key elements of the right to participate; a duty to consult, and free, prior and informed consent. In all cases, governments should engage in a ‘good faith effort towards consensual decision-making’.