Article 19 of The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

The need for community consultation is also part of the authorisation processes pursuant to the Native Title Act 1993 (Cth) and other State-based legislative processes that relate to Aboriginal heritage (see, for example, Aboriginal Heritage Act 1988 (SA) s. 13).

What this means is that community consultation and participation in decision making form vital components of obtaining free, prior and informed consent, or a decision under the Native Title Act 1993 (Cth), before any agreement is made with community.  

MPS Law spoke with Margarita Escartin, the Managing Director of Red Cliff Project Consultants, and international expert on community consultation to share ideas on effective community consultation with Indigenous Peoples.

We have developed three key tips that lead to effective community consultation. 

1.      Involve people from the outset

Community consultation needs to start early and involve community members from the outset. 

“Effective community consultation involves community representatives in the consultation design.  This requires identifying key people that are important to the decision-making process and engaging with them in the design and implementation phases”, says Margarita.  “That way there is ownership in the process and the outcome – people become invested as it is participatory and about them.”  

If people feel included in the consultation design they are more likely to respond positively to consultation and actively participate in decision-making from the earliest stage.  Early consultation with community also facilitates the development of long-term relationships built on trust and mutual understanding. 

Margarita further highlights the need to acknowledge that participation is not mandatory but that the consultation process needs to be ongoing and always remain open.  Margarita recalls explaining to community members on previous projects that, “You don’t have to participate, that’s your choice, but we will continue to do what we are doing.  The door is always open, so feel free to come to meetings, ask questions if you decide you want to be a part of this again later on down the track”.  This confirms that consultation is open to all at any time and mitigates risks of future arguments that people were excluded from the process.

2.      Communicate

Be clear in what you are consulting about and use plain English.

In addition, be creative and original in the way you present your information.  This could include, for example, using icons, graphics and animations to explain complex issues.  

Be mindful that effective communication requires listening, acknowledging concerns, re-framing those concerns to a constructive action, summarising what you are being told, and, asking relevant questions at key times to better understand what you are being told.

Margarita explains “I always measured the effectiveness of community consultation by the way it organically grew in numbers and how a consultation meeting played out.  If the questions about a project were limited, in my experience this meant that we had provided the level of detail and information that was understood by the people.”

3.      Evaluate success on process and not the outcome

Remember, effective community consultation is a process and it takes time. 

It is important to focus on the process – what is being done and how is it is being done – rather than the outcome.  The process should be one that is meaningful.  A ‘yes’ or ‘no’ answer does not mean that community consultation has worked or that it hasn’t worked.  The outcome isn’t a measure of success or failure. 

Community consultation is something that should not be rushed and is more than just a ‘check box’ to legalising agreements with Indigenous Peoples.  Adequate time-frames, human resources and funding need to be built into the community consultation process.  This is important for relationship building and ensuing that the community are not pressured into making decisions in a short amount of time. 

“Equally, however, there has to be momentum as a decision point will come, a loosely defined timeline, worked up with community members, gives people certainty – and in my experience community responds well to that.”, says Margarita.

For more information about community consultation, contact Margarita Escartin at margarita@redcliffpc.com.au or Michael Pagsanjan at michael@mpslaw.com.au