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CRU Intern, MICHAEL STARKEY, has contributed the following post:

The delay of the referendum on indigenous recognition until at least after the 2016 federal election has created an important opportunity: to consider including in the final proposal for change an obligation on government known in international law as ‘the duty to consult.’ In legal speak, the idea is that governments should, in good faith, consult with indigenous peoples in order to obtain their free, prior and informed consent before adopting any measure that specially affects them. In the words of Noel Pearson, it is that indigenous peoples ‘get a fair say in laws and policies made about [them].’

While the normative content of the duty to consult is expressed most clearly by international law (particularly by Article 19 of the UN Declaration on the Rights of Indigenous Peoples and Article 6 of ILO Convention 169), in seeking practical guidance on how to implement it, Australia should turn to two foreign jurisdictions. The first, Canada, is a likely comparator. The second, Bolivia, less so. But by drawing on the jurisprudence developed in the former, and appropriating the constitutional provision of the latter, Australia could effectively entrench the duty to consult to the enduring benefit of our nation as a whole.

In 1982, the Canadian Constitution was amended to recognise, inter alia, the rights of indigenous Canadians. Section 35(1) of the newly entrenched Constitution Act provided: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ Following this amendment, a comprehensive body of Canadian case law has confirmed that the Crown has a duty to consult indigenous Canadians before taking actions which might affect their ‘aboriginal rights.’ This development cannot be explained by the constitutional amendment alone, however, because, as its wording suggests, section 35(1) conferred no new rights on indigenous Canadians. What it did do, though, was constitutionally protect the common law of Canada’s conception of the relationship between indigenous Canadians and the Crown as fiduciary in certain circumstances. That relationship, when it arises, requires Canadian governments to consult with indigenous peoples to ensure the Crown’s power is exercised in their best interests. In Mabo, the High Court (with the exception of Toohey J) refused to characterise the relationship between the Crown and indigenous Australians as fiduciary. Because of this, simply transplanting section 35(1) of the Canadian Constitution Act into our own would not entrench a duty to consult. However, if we could import the duty by other means, Canadian jurisprudence would provide a rich resource to be drawn on by our courts in fleshing out its local requirements.

Canadian courts have held that both federal and provincial governments must consult with indigenous Canadians and accommodate their established or asserted rights prior to making decisions which might affect them. It is important to note that the Canadian duty is not a duty to agree. Rather, it is about good faith negotiation and the balancing of interests. A breach of the duty becomes relevant when it is alleged that a government measure infringes an ‘aboriginal right’ protected by section 35(1) of the Constitution Act. Such infringement will not pass the required test of ‘justification’ unless the procedural duty to consult has been fulfilled. Where consultation has been inadequate, the purported decision can be suspended or quashed. In numerous cases, administrative decisions have been overturned as a consequence of the duty’s breach (see, e.g., R v Sparrow [1990] 1 SCR 1075; Haida Nation v British Colombia (Minister of Forests) [2004] 3 SCR 511; Tsilhqot’in Nation v British Columbia [2014] SCC 44). While in theory the duty also applies to legislative decision-making, there appear to have been no cases in which legislation has been struck down on the basis of inadequate consultation. However, legislation has been held to have no effect with respect to particular indigenous individuals if it infringes their rights for no good reason (see R v Powley [2003] 2 SCR 207).

If Australia were to adopt a duty to consult, drawing on this jurisprudence would continue the established tradition of our courts referring explicitly to Canadian decisions in indigenous rights cases. The question remains though, how might we effectively frame the duty to consult in the Australian context? The answer, it is proposed, lies in the Bolivian Constitution, Article 30 of which provides: ‘…indigenous peoples enjoy [the right]… to be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them.’ Since its adoption in 2009, this provision has been used to challenge a major government works project involving the building of a highway through the TIPNIS, a national park home to 12,000 indigenous Bolivians. While the consultations mandated by Bolivia’s Plurinational Constitutional Tribunal as a result of that challenge were criticised as being neither free nor informed, it is clear that the duty to consult is forcing a change in the way the Bolivian Government interacts with the 62 per cent of Bolivia’s population who identify as indigenous.

Appropriating the directness of the Bolivian duty’s wording, an Australian duty to consult might affirm: ‘The Commonwealth, a State or a Territory shall consult indigenous peoples, through their representatives, before taking legislative or executive measures that may be seen to specially affect their interests.’ It would be the familiar role of Australian courts to interpret this provision, and it is here that Canadian jurisprudence on that country’s duty to consult would play an invaluable role.

The merits of this proposal are numerous. Adopting a duty to consult will guarantee that indigenous voices continue to be heard once the current process of constitutional recognition is over. It will help generate the climate of confidence, currently lacking, between Australia’s indigenous peoples and its governments. And importantly, the duty to consult addresses the practical need to resolve the recent, dangerous emergence of partisanship in the recognition debate. While the Australian Labor Party seems intent on including an anti-discrimination provision in the final recognition proposal, the Coalition Government appears to be moving to quell expectations of anything more than symbolic recognition. A duty to consult provision arguably paves a middle road between these two extremes. If there is one thing that the history of referenda in Australia tells us, it is that bipartisanship is essential for success, and not since 1967 has success been as important as it is now.

SUGGESTED CITATION: Michael Starkey, 'Indigenous Constitutional Recognition - A Duty to Consult?', Constitutional Critique, 26 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).