Rights in action – Representative bodies

There are many Aboriginal and Torres Strait Islander organisations that represent our interests across the country. For example there are over 2700 Indigenous corporations registered with the Office of the Registrar of Indigenous Corporations.^[52]

The National Congress of Australia’s First Peoples (the Congress) was established to facilitate our right to participate in decision-making at the national level across all areas of policy. Through the Congress, our peoples will be able to have a national voice.

As well as the Congress, there are a number of different types of representative bodies that we can participate in, including:

• local government and community councils
• community controlled health or housing services and Aboriginal and Torres Strait Islander legal services
• prescribed bodies corporate.

These bodies could all adopt the Declaration in their constitutions to strengthen their ability to enable our peoples to participate in their decision-making processes.

Using your rights – Participation in decision-making

The Australian Government has committed to resetting the relationship with our peoples. Active participation in decision-making that affects our peoples is a key part of resetting the relationship.

In practice, our participation in decision-making is limited. To meet human rights standards we should be involved in all major decisions affecting us, including on issues around land, development, culture, housing, health, education, employment, child welfare, social services and criminal justice.

Active participation in decision-making through our own institutions is reflected in the Declaration and we can lobby the government at all levels to establish a system to ensure this happens.

Talking Rights – Consultation and good governance

The Special Rapporteur has noted that involving us in decision-making creates better projects and programs:

Without the buy-in of indigenous peoples, through consultation, at the earliest stages of the development of Government initiatives, the effectiveness of Government programmes, even those that are intended to specifically benefit indigenous peoples, can be crippled at the outset. Invariably, it appears that a lack of adequate consultation leads to conflictive situations, with indigenous expressions of anger and mistrust, which, in some cases, have spiralled into violence.^[53]

Know your rights – Development

Exercising our rights to development would mean we are actively involved in the design, development, implementation, monitoring and evaluation of all areas of policy that affects us. Our involvement acknowledges that we are the best people to decide how to address the issues faced by our communities.^[54]

Know your rights – Economic development and our priorities

The non-Indigenous idea of development is often focused on economic advancement and ‘modernisation’. Across the world this has led to the destruction of many Indigenous peoples’ cultural, political, economic and social structures.^[55]

The Declaration is clear that as part of our right to self-determination we have the right to determine our own development priorities. This includes the development of political, social and cultural programs as well as economic development.

In developing economic opportunities we have the right to choose what economic activities to undertake. For example, we are able to engage in the contemporary market economy whilst fostering our culture through contracting out services in areas such as cultural heritage, cultural awareness training and land and sea management activities.

Development as set out in the Declaration is broader than creating individual wealth and economic markets. It is about empowering a group of people to be free to decide how to develop, including creating culturally appropriate economic activities.

Rights in Action – Commercial fishing rights

Gunditjmara people have been farming eels for food and trade for almost 8000 years in the far southwest of Victoria.

In 2007, the Gunditjmara people and the Victorian Government agreed to a native title consent determination which included the Gunditjmara’s right to use the natural resources of their country, including the use of fish and eels. The only limitation in the use of these resources is that it is done so consistently with Australian law.^[56]

The Gunditjmara people have the opportunity to develop economic industries that are consistent with their traditional rights and ownership.

Importantly, this economic development is chosen by the Gunditjmara people. The Gunditjmara have started to develop these economic opportunities through tourism and fishing industries.

This is an example of how economic development can reinforce the cultural identity of an Aboriginal or Torres Strait Islander clan or nation. This economic development also facilitates the Gunditjmara’s ability to undertake their cultural responsibilities to their country.^[57]

Know your rights – Special measures

A special measure is an action that gives members of a disadvantaged group access to a benefit that is intended to promote equality. Some groups do not enjoy human rights equally with others. Special measures allow such groups to be treated differently for the purpose of their advancement.^[58]

To be a special measure under the International Convention on the Elimination of All Forms of Racial Discrimination an action must meet all of the following criteria. It must:

1. provide a benefit to some or all of the members of a group of people
2. have the sole purpose of helping that group of people enjoy their rights without discrimination
3. be necessary to achieve the purpose
4. stop as soon as the purpose has been achieved.^[59]

If a special measure is rights limiting it should be consistent with the principle of free prior and informed consent.^[60]

Many of our peoples live in disadvantaged conditions. Governments have obligations to take special measures to address this disadvantage. If the actions by governments do not meet the criteria set out above they cannot be a special measure.

Alcohol restrictions can be a special measure. To do so, they must meet the above criteria and be designed on a case-by-case basis considering the wishes and needs of the relevant community. Blanket alcohol bans across a state or territory would not be considered a special measure^[61]

Know your rights – Discrimination and the protection of women and children

Violence against our women and children is an issue of concern to Aboriginal and Torres Strait Islander communities.

Governments have obligations to take actions to prevent and protect our women and children from violence and discrimination.

Laws and policies developed to protect women and children should not at the same time discriminate against Aboriginal and Torres Strait Islander peoples. That is why governments must work with us in meeting these obligations.

Using your rights – Health and the homelands

Many homeland communities do not have access to adequate health care services. However, research shows that living on homeland communities can result in better health outcomes for our people as a result of:

• increased physical activity
• better diet and reduced availability of alcohol
• connection to culture and country
• being in control of life through self-determination practices.^[62]

Research in the homeland community of Utopia has shown significant health benefits for these residents compared to other Aboriginal people in Central Australia living in centralised communities. These benefits include having lower mortality rates and lower incidents of diabetes, heart disease and hospitalisation.^[63]

Our homelands need government investment in basic infrastructure like housing, electricity, water, sanitation and health services. The health benefits from living on our homelands are being undermined by a lack of investment in these facilities.

We have the right to the same level of health care and health infrastructure as other people in Australia regardless of where we live. Health care should build upon the benefits associated with living on homelands. We can lobby the government to provide adequate investment into our homelands as part of our right to health.^[64]

Rights in action – Close The Gap^[65]

In 2005, the Aboriginal and Torres Strait Islander Social Justice Commissioner’s Social Justice Report called on Australian governments to commit to achieving health and life expectation equality between our people and non-Indigenous Australians within a generation. This was based on our right to health and our right to enjoy the same opportunities to be as healthy as other Australians.^[66]

This led to the formation of a coalition of more than 40 Aboriginal and Torres Strait Islander and non-Indigenous peak health bodies and non-government organisations to progress what became known as the Close the Gap Campaign for Indigenous health equality. This was the first time these organisations have worked together to achieve Aboriginal and Torres Strait Islander health equality. The work of this coalition involves setting health equality targets, raising awareness and lobbying government to achieve that end.

In 2008, the Australian Government, the federal opposition, the main Indigenous and non-Indigenous peak health bodies and the Social Justice Commissioner signed the ‘Close the Gap Statement of Intent’ which committed all parties to a national plan for achieving health equality by 2030 supported by a partnership between Australian governments and our peoples.

This was the first time the Australian Government had made a commitment to achieve health equality for our people in a specified time frame. It also committed the parties to ensuring our peoples could fully participate in all aspects of their health needs. The Prime Minister committed to reporting to Parliament on the Australian Government’s progress against these commitments each year.

The Close the Gap campaign is a great example of how a human rights-based approach to a problem can influence government policy. However, work still needs to be done. The challenge is to build on this commitment and develop a national plan for our health that is developed in partnership with our peoples and ultimately to achieve health equality within the set timeframe.^[67]