Draft consultation policy

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					New South Wales Aboriginal Land Council Strategic Planning and Policy Unit



Phil Duncan Manager SPPU NSW ALC

Emma Lee Policy Research Officer SPPU NSW ALC

Level 9, 33 Argyle Street Parramatta NSW 2150 PO BOX 1125 Parramatta NSW 2124 Ph: 9689 4444 Fax: 9687 1234



Introduction Agency/Vision Statement Objectives Principles Consultation Protocols Consultation Procedures


INTRODUCTION Consultation with Aboriginal communities is a relatively new process that has yet to be formalised within many government agency policy and legislative frameworks. Consultation should be regarded as a progressive understanding of Aboriginal cultures and the recognition of the rights which Aboriginal peoples and communities have within. Undertaking culturally appropriate consultation conveys an understanding and respect for Aboriginal peoples and communities. Government agencies set agendas and develop policies and laws, which impact on the greater public. Aboriginal cultures for example, work in reverse. It is at the community or grassroots level that Aboriginal cultures are most active; making decisions, and proposals, and setting agendas which permeate up through the community. Consultation allow communities to have a real influence in the decision making process. It overcomes problems of trying to simplify issues by seeking only the views of a minority of outspoken individuals. Given the diversity and number of Aboriginal groups, a minority cannot speak on behalf of all. An analogy would be to ask people in Western Australia to make decisions on behalf of people in New South Wales. This would be unsatisfactory for people in New South Wales, so to for Aboriginal peoples and communities. This consultation policy is to be used as a guide and reference document. Consultation is flexible and each situation is different, although the skills used to consult do not change. The process of consultation is highly rewarding for the participants - the friendships, working relationships and agreements that result can be lasting and enjoyable for all concerned.


AGENCY STATEMENT The agency will undertake consultation in a culturally appropriate manner and will aim to achieve effective, efficient and satisfying results for all parties.

VISION STATEMENT The agency will undertake to improve working relationships with Aboriginal communities, and encourage long-term partnerships that evolve into a greater understanding of the issues and dynamics of consultation.


OBJECTIVES The agency will achieve the following objectives when consulting with Aboriginal communities. 1. The consultation policy aims to create Confidence, Commitment and Attention for Aboriginal peoples and communities and the agency within the policy framework. This is achieved by promoting effective and culturally appropriate consultation procedures and protocols. 2. To facilitate the consultation process using fair and equitable dealings and promoting the dual exchange of information. 3. To acknowledge the rights Aboriginal peoples have in particular selfdetermination within the consultation process. These include: 3.1 the necessity to acknowledge Aboriginal peoples as the rightful custodians and guardians of their culture. 3.2 the rights to control intellectual and cultural property, including language and the arts, traditional knowledge of the environment, its biological diversity and resources, culture and heritage. 3.3 the rights to determine culturally appropriate protection and conservation of nominated places, resources and culture and heritage items. 4. To ensure the policy framework is flexible to allow objectives to be achieved in tandem with the agency's legislative requirements, policies and guidelines. 5. To aim for continuous working relationships with Aboriginal communities, whereby consultation is the process that allows for partnerships and agreements on a range of issues.


PRINCIPLES The principles of consultation are listed to aid in the process of attaining equity, honesty and the improvement of working relationships between the agency and Aboriginal peoples. 1. Recognition by the agency that Aboriginal cultures are fluid, dynamic and unique, which is partnered by the acknowledgement that consultation needs to occur across all issues that may affect Aboriginal peoples and places. 2. The right to choose the appropriate people and place to conduct consultation.  Participants will be treated with respect and dignity and the rights of participants to be heard and to speak will be valued.  The full purpose and process for the consultation will be clearly articulated to participants prior to actual consultations being undertaken.  Participants will receive feedback from the consultations in a timely manner.  All views expressed in the consultation process will be considered.  Agreements sought during consultations will be reached by consensus. Where they're significant dissenting views, these will be clearly identified in the consultation documentation. 3. That consultation is conducted with a range of organisations and individuals within that community. All people have the right to be consulted with, if the issues affect the place that person or community lives in. Consultation cannot be selective for just Local Aboriginal Land Councils, but must include Native Title Claimants and holders, Traditional Owners and Elders, other Aboriginal corporations and organisations. 4. The context for undertaking consultation within communities must include the components of: 4.1 Inclusiveness – the need to include all Aboriginal peoples within the process, as well as agency staff, consultants and relevant organisations. 4.2 Accessibility – all documentation must be in plain English and have a clear explanation of technical details. Staff conducting the consultation are to be accessible to individuals and communities throughout the process, as well as providing information that will assist decision-making. 4.3 Respect – acknowledging the varying roles, responsibilities, obligations and rights of Aboriginal peoples and communities. To be respectful of culture and people is the first step in the process of developing working relationships.


4.4 Accountability – acknowledging the responsibility to adequately consider the rights and needs of Aboriginal individuals and groups. Those parties to the consultation will be accountable for the decisions made in the consultation process. 5. The government agency will undertake to be transparent in all decisions that affect Aboriginal peoples and places.


CONSULTATION PROTOCOLS The following protocols are to be adhered to when conducting consultation with Aboriginal peoples and communities. Consultation protocols have been divided into 3 main stages of design, implementation (initial contact/meetings) and feedback.

1. Consultation Design The following protocols are to be included in the consultation design. 1.1 Adequate notice of the pending consultation. 1.2 Notices regarding the consultation and pending meetings provided and placed, with or in, relevant locations/organisations. Notices must include reason for and nature of consultation, agency(ies) involved and interim boundaries of consultation. 1.3 Flexibility, in regards to time-frames, locations and objectives. 1.4 Funding: ensuring a realistic and adequate budget that also accounts for extraordinary events. 1.5 Provide information about the consultation, including the issue(s), identify information flows between agency and Aboriginal communities, outcomes the agency and Aboriginal communities wants to achieve, and the resources available to Aboriginal peoples throughout the consultation process. 1.6 Information relating to the consultation to be provided to individuals and groups prior to and at the relevant meetings. 1.7 Plain English communication: do not use jargon, use diagrams where possible and explain technical aspects and all potential ramifications. 1.8 Research community dynamics where consultation is to be conducted i.e. the role, position and relationships between traditional owners, land councils and individuals. 1.9 Provide a gender balance of agency staff and appropriate level of staff seniority at all consultation meetings. Aboriginal men and women hold different knowledge that is not always appropriate to share with the opposite sex or young people. 1.10 Ensure transparency at an individual and agency level.


1.11 Understand the limitations of consultation input and outcomes. Plan for the next project to cover the gaps or expand or implement the initial outcomes. 1.12 Be neutral. Do not align with one individual or group over the other, one issue over the other. Represent the agency professionally. 1.13 Ensure confidentiality and the protection of peoples' cultural and intellectual property rights.

2. Implementing Consultation (Initial Contact/Meetings) The following protocols are to be included when implementing consultation.  The issue to be consulted on will be clearly articulated and recorded in writing in plain English. Such recordings will include background information outlining the existing situation, the proposed changes or advice being sought and the rationale for change/advice.  The methodology for the consultation will be clearly articulated. Consultation must occur at least with: 1. NSWALC Council and members 2. Regional Land Councils 3. Local Aboriginal Land Councils members  Consultations can occur with other groups (such as individuals, families, communities, organisations) as required. However, reasons for consultations with other than Land Council organisations must be recorded.  Where information/issues is presented in writing, verbal presentations must be made available where requested.  The consultation methodology must provide for written and verbal submissions. Time frames for consultation must cater for this. 2.1 Adequate notice of meetings - at least one-month prior to the meeting date, and follow up to ensure no other events conflict with date, time and venue of meeting. 2.2 One-on-One vs. Group Meetings with several different Aboriginal groups together in one room can be highly unproductive, even damaging, to the consultation process. Most meetings of this nature are unproductive because Aboriginal peoples do not feel comfortable expressing their concerns, particularly if other groups are present, for example, a particular Local Aboriginal Land Council and a particular Native Title Claimant. No one benefits from such meetings. Keep usual points of Aboriginal business out of agency documents. In the long term, having one-on-one meetings is the most productive and encouraging format for understanding community concerns.


This method may seem costly in terms of time; it is not. By taking a personal interest in consultation, Aboriginal communities will understand you are serious about achieving results, and should be impressed by the personal contact and understanding of culturally appropriate procedures and protocols. 2.3 Location: local/regional considerations of a venue should be both agreeable to participants and easily accessible. The location of meetings is vital to consultation; office environments are not always conducive to open discussion. Be conscious of the impact environment will have on the meeting and its outcomes. 2.4 Make people feel comfortable – the role of food and drink and a comfortable atmosphere is important as a sign of commitment to the consultation process. 2.5 As an individual, state who you are, your qualifications, the nature and role of your position/department/agency in the consultation process. 2.6 When greeting people, particularly Elders, use Mr and Mrs, conveys respect and people will soon let you know if they want you to address them differently. 2.7 Only promise what you can provide. 2.8 Facilitate discussion. 2.9 Seek points of agreement. 2.10 Seek resolution in areas of disagreement or articulation of disagreement (resolution is not always possible and compensation may be considered). 2.11 Seek cooperation from all parties to the process and protocols of undertaking consultation. 2.12 Seek gains for all parties concerned. 2.13 Seek the best option for communities, as jointly decided between agency and community. 2.14 Respect the views of all parties. 2.15 Seek equity in the consultation process. 2.16 Allow frustration to be vented, but do not accept personal abuse.


2.17 Dress appropriately for the circumstances: casual, neat, practical, plainly.

3. Consultation Feedback The following protocols are to be included when providing feedback of the consultation process. 3.1 Feedback to include protocols as outlined above. Feedback should reflect achievement of objectives and satisfaction of protocols. 3.2 Provide feedback on the consultation process to organisations and individuals involved, including how their input has been utilised. 3.3 Ensure feedback is available to all organisations and individuals involved in the consultation process. 3.4 Feedback format: All in plain English. Feedback documentation includes minutes of meetings, reports prepared, maps, diagrams produced. 3.5 Maintaining friendly contact with people and place increases the opportunity for further productive consultation for the agency and others.

Confidentiality: Confidentiality of participants must be respected. Participants must be informed that their information will be treated in confidence unless participants indicate otherwise. Identifying information will be withheld from reports, both verbal and written. Where participants request a confidential environment to disclose or input information, officers conducting the consultation will make every effort to provide such an environment (and where ever possible at a place nominated by the participants) Participants must be informed of information being disclosed under court order or subpoena (eg. Exceptional circumstances). Venue: All consultations will be undertaken at venues owned or controlled by Aboriginal people.







Feedback Project/Issue Requires Consultation

Design Consultation

Implementation letters phone calls meetings

To be used in-conjunction with the section on consultation protocols.



9:0 Consultation and review of existing LALC relationships and models for involving Aboriginal people and communities.
The consultation section has been left until last, as some aspects are critical for setting the context for Stage 2 analysis and recommendations.


Definitions of Consultation

Consultation can be defined as the formal process of discussion between two or more parties. On a simple nature, consultation is usually about one party needing information, an opinion or reflection, consent or approval from another party. Formal consultation with Aboriginal communities is a relatively new process for most government and private agencies, where the LALCs have been the major bodies to promote consultation procedures and protocols due to their direct association with, for example, project planners. Agencies have been slow to react to the needs and wants of Aboriginal communities. The majority of the consulting burden is placed on the Aboriginal community, such as travelling long distances to meetings, having to read large technical documents in short time and having the expertise, or funds to contract experts, to explain those documents to community people. There is a range of bodies that have a Code of Practice of Code of Ethics relating to consultation with Aboriginal communities. Some of these bodies are agencies such as the Australian Heritage Commission (AHC) and the NPWS, research institutes, such as the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), and the Australian Archaeological Association (AAA). The guidelines used relate to ethical principle and practice, based on obtaining informed consent from the Aboriginal community to conduct research or development. The principles for AIATSIS guidelines rest on consultation, negotiation and mutual understanding (May 2000). For AAA informed consent from the appropriate community representatives, presentation of plain English reports to communities for comment and the unauthorised interference with human remains or articles/place of cultural significance are highlighted (December, 1991). For the section Rules to Adhere to, No. 8 states that “members shall endeavour to


involve indigenous peoples in all stages of their projects”. This point will be referred to later. The NSW NPWS Aboriginal Cultural Heritage Standards & Guidelines Kit (1997) contains a section “Partnership with Aboriginal Communities” which outlines the principles and implications for archaeologists. The four principles are based on the recognition of Aboriginal living culture and the rights of Aboriginal people as owners of culture heritage, the commitment by NPWS to active partnerships for advocating legal and institutional change and the transparency by staff in all decision-making. The implications for archaeologists from the NPWS guidelines are the expanded involvement by Aboriginal people in all field-based assessments, even conducted by Aboriginal professionals and consultants, the Aboriginal community directly coordinating with a developer, and the need for archaeologists to develop skills to undertake oral history and cultural value assessments. One of the most informed policies relating to the practice of consultation comes from the Australian Heritage Commission. One excerpt from the Draft Code of Ethics is reprinted in full, as the spirit by which consultation should be conducted is at the forefront.

Excerpt from the Australian Heritage Commission Draft Code on the Ethics of Co-Existence in Conserving Significant Places (1994) Ethical Practices In assessing or managing a place of significance to different cultural groups, the practitioner shall: Article 8. adopt a coordinated, multi-disciplinary approach to ensure an open attitude to cultural diversity and the availability of all necessary professional skills; identify and acknowledge each associated cultural group and its values, while accepting the cultural right of groups to withhold certain information; enable each cultural group to gain access to pertinent information and facilitate the exchange of information among groups; enable each cultural group to gain access to the decision-making processes which affect the place; apply a decision-making process which is appropriate to the principles of this Code;

Article 9.

Article 10. Article 11. Article 12.


  

This will include: co-responsibility among cultural groups for the assessment and management of the cultural significance of the place; accepted dispute settlement practices at each stage at which they are required; and adequate time to confer with all parties, including the least outspoken and may require the amendments of existing procedures in conservation practice. whilst seeking to identify issues and associated cultural groups at the beginning of the process, accept new issues and groups if they emerge and accommodate evolving positions and values; where appropriate, seek co-existence of differing perceptions of cultural significance rather than resolution; and accept compensation as a possible element in managing irreconcilable cultural difference.

Article 13.

Article 14. Article 15.

The emphasis on this draft Code of Ethics is that consultation with a wide range of stakeholders takes time and effort, but that rewards are great. The constant expansion of what is considered heritage and the techniques on how to preserve it can only benefit out society. The draft Code recognises that consultation is not a one-off procedure, but is based on the continual input of new ideas from new and old members of both the Aboriginal community and the consulting professionals. Other consultation policies and protocols, if they exist, are not as easily sourced for each individual government agency. Some agencies do have them, some are in the process of creating them, and others try to implement them where possible. The varying knowledge about what constitutes consultation and how to undertake it can have a negative affect on Aboriginal communities, the agency and the success of the project. For example, the NPWS Aboriginal Heritage Division staff are familiar with the processes of consultation and practice it, however, the general staff of many other divisions with NPWS is not. This can affect, and has done in the past, a range of issues, such as the use, or non-use, of fire to „clean up country‟ or the planning for access within the National Parks. This type of problem is found within many government agencies and not just NPWS.

:7 Organisations for Aboriginal heritage custodianship and consultation issues
3:7:1 Local Aboriginal Land Councils Over the last 16 years the primary Aboriginal organisations that have been consulted with are Local Aboriginal Land Councils (LALC). The creation of the 15

Aboriginal Land Rights Act (1983) in NSW saw the first LALCs being established soon after, mainly in the Sydney region. The NSW Aboriginal Land Council is the centralised body which provides support, advice, administration and funding to the LALCs. LALCs across NSW have varying levels of administration and other activities depending on their location and population, access to funding and trained staff, and the resource management needs. There are 5 LALCs in the Sydney region (Map A & B) and 117 in total across NSW. The LALCs of the Sydney Basin are the:      Tharawal LALC, with their office at Buxton Gandangarra LALC, with their office at Liverpool Deerubbin LALC, with their office at Mt Druitt Metropolitan LALC, with their office at Sydney City, and La Perouse LALC, with their office at Yarra Bay.

With the exception of Deerubbin LALC, all other LALCs have a portion of the Georges River Foreshore within their boundaries.

3:7:2 Native Title Groups The Australian High Court in 1992 made an historic decision with the Meriam/Mabo case, which recognised that Native Title was held by Aboriginal people. In some cases, such as Mabo, Native Title still holds. While the Native Title Act 1993 has been through several amendments, this has not prevented Native Title Claimant groups from persevering and lodging applications. As at the 11th December, 2000, there are eight Native Title Claims lodged with the National Native Title Tribunal that affect the Georges River Study Area. Another claim has since passed the registration test, this being the Darug Tribal Aboriginal Corporation‟s claim. In no particular order, the Native Title applicants that have lodged claims (Appendix A) that cover the Georges River are:     Gundungurra Tribal Council Aboriginal Corporation Darug Tribal Aboriginal Corporation Cubbitch Barta Clan of the Dharawal People; and Elouera People.

The National Native Title Tribunal lodgements change constantly, and the consultant must be vigilant in updating their records regarding Native Title claimant groups. There are several Native Title claimant groups that have not yet registered, or are in the process of updating the registration, that are not listed. Some of these groups may be registered with the Office of the Registrar,


Aboriginal Land Rights Act at DAA, who are in the process of collating a Traditional Owners registration for the management of National Parks that are returned to Aboriginal communities, such as Mootwindji near Broken Hill. The Native Title Unit in the NSW Aboriginal Land Council also has a register of claimant groups.

3:7:3 Community Organisations and Agency Positions Culture and heritage is a large umbrella for Aboriginal interests. For example, the conservation of a particular plant can help in the health of Aboriginal people, or the recording of an oral history story can be translated into dance by a local youth group. Therefore, it is necessary to broaden the range of usual Aboriginal stakeholder organisations, such as the Aboriginal Heritage Division of NSW National Parks and Wildlife Service (NPWS), DAA or the Australian Heritage Commission. The Sydney City and surrounds, such as Redfern, Waterloo and Alexandria, has established service centres and networks, such as the Gadigal Information Service and Koori Radio, Aboriginal Childrens Service, Medical Service and Legal Service. These organisations can help consultants to ensure that they have covered a wide range of opinions and views. Other organisations, such as government agencies, have specific Aboriginal Liaison positions. The Aboriginal Education Officer at the Royal Botanic Gardens can assist landscape designers, flora consultants, historians, etc. as the link between plant foods, knowledge and people is crucial to the overall Aboriginal culture. Some Local Government Councils have Aboriginal Liaison, Development or Heritage positions, although they are generally located within the Community Services division of Councils. The Aboriginal non-profit group Lumbu is a recently established group whose primary interest is independent community development by promoting wider business and philanthropic interest in long term projects. Aboriginal professional networks, such as the Australian Indigenous Scientists, Engineers and Architects Networks Limited (AISEAN) and Aboriginal Doctors Association (ADA), are also being established to ensure that Aboriginal communities and the wider general public have access to culturally appropriate information and services and to lobby for wider support and funds for Aboriginal community projects.

3:7:4 Educational Institutions The Aboriginal Education Consultative Group (AECG) has worked with the Department of Education for over 10 years to ensure that Aboriginal Studies is core subject for primary and high schools, and that the information is appropriate.


The Groups are found in regional and local areas, and can provide advice on how to present information for the general public. Representatives for the AECG, particularly in primary schools or pre-schools, have great access to community members who may not be associated with a Land Council or Native Title claimant group. These individuals constitute Elders, older people and younger working families who may not be part of an organisation for a variety of reasons, but are associated with their children‟s schools. For example, some older people and Elders do not wish to join organisations as they have memories of „mission days‟, when organisations where responsible for taking children or preventing language being spoken. Other younger people do not always have the time or transport to get to Land Council meetings, and so may get their information through school contacts. Universities generally have dedicated Aboriginal Support Services or Research departments or centres that are managed by an Aboriginal staff. Many lecturers in Aboriginal Studies, archaeology and anthropology have ties with the Aboriginal centres and are able to form community contacts through the staff and students. Most community Elders have had experience with consultants through Aboriginal centres at universities, and can be contacted through the centre directors‟ or support staff. Elders are asked to give Welcome to Country speeches for conference proceedings, participate in local research such as PhD theses and have children or grandchildren who attend or work in the centres. Approaching community people through Aboriginal centres follows the same conventions as any other consultation, such as giving advance warning and information about the project. An advantage to seeking community members through university institutes is that the support staff are usually able to guide or support the consultant with introductions and relevant background reading material. Other educational institutions, such as Tranby College and Eora Centre, can also help consultants create new ways of disseminating information.