Dithering Between Consultation and Consensus – Whereto with Advisory Bodies for Indigenous Peoples?

Abstract

The establishment of permanent, national consultative bodies for Indigenous Peoples is rare, but insight can be gained from comparative experiences such as the Sámi Parliament of Finland, previous advisory bodies for Aboriginal People in Australia, and more recently progress by the Khoisan in South Africa. Advisory bodies for Indigenous Peoples at the national level are often the victim of competing expectations. Governments tend to approach advisory bodies as fora for consultation on terms that are, in essence, dictated by government with the outcome being little more than non-binding recommendations, whilst Indigenous Peoples seek a form of co-government arrangement whereby there is some legal or policy requirement for their advice to be actively sought and sincerely considered, even if such advice is not legally binding. Four questions are the subject of this article: (1) how should an advisory body be composed; (2) what should be the policy or functional areas on which consultation must take place; (3) what is meant by an obligation to consult or to negotiate; and (4) can laws or policies be judicially challenged if there was a failure to consult, or if there is a failure to give effect to the advice received from the advisory body? The conclusion is reached that the enforceability of good faith negotiation or consultation obligations is principally found in the conduct and goodwill of governments, rather than by way of judicial review and oversight. Courts are unlikely to evaluate the substance of negotiations whereby the merit or reasonableness of proposals and counter-proposals become a matter for judicial consideration. Courts have, however, shown a greater willingness to consider procedural aspects of consultation such as the actions, behaviour, and conduct of the parties during the course of consultation, but with acknowledgment that at law good faith consultation does not necessarily imply a veto; it does not legally mandate an agreement; and it does not preclude a party standing firm in its position. It is noted that even in those cases where courts have enforced consultation obligations, actual consultation is usually directed at local projects that involve access to traditional lands, and not to general consultative rights or duties at a national level about national socio-economic policies.