Social Justice Report 2011

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Chapter 3: A human rights-based approach to lateral violence

• Chapter 1: The Year in Review
• Chapter 2: Lateral violence in Aboriginal and Torres Strait Islander communities
• Chapter 3: A human rights-based approach to lateral violence
  • 3.1 Introduction
  • 3.2 Human rights and lateral violence
    • (a) The Declaration
    • (b) Applying the principles of the Declaration
    • (c) The Declaration to guide practical actions to address lateral violence
  • 3.3 Conclusion

Chapter 3: A human rights-based approach to lateral violence

3.1 Introduction

When we look at the many issues that face Aboriginal and Torres Strait Islander communities, it is easy to get paralysed by their complexity, entrenched nature and the sheer size of the challenge. But as an optimist, I believe that there is a lot that we can do to address these problems. There are many different tools available to suit the varying circumstances that face our diverse communities. Lateral violence is no different.

The most promising overarching response to lateral violence in my view is a human rights-based framework based on the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). I think the Declaration offers excellent guidance for the development of strong and healthy relationships within our communities and organisations.

This Chapter outlines how lateral violence is a human rights issue and how human rights standards, particularly those contained in the Declaration, can provide a useful framework to address lateral violence. I argue that by applying these human rights standards, the problems associated with lateral violence can be tackled through an ‘assertion of Indigenous agency and responsibility’.^[1]

While this might sound abstract, the purpose of this Chapter is to use these ideas to begin generating practical solutions. Human rights standards are the first step in empowering communities. This in turn will help us address the causes and consequences of lateral violence. Human rights also place obligations on governments and other third parties to ensure that their actions do not contribute to lateral violence.

Using the language of human rights also gives us another way to talk about lateral violence. As I’ve said in Chapter 2, this is a tough conversation. However, I believe that if we frame our conversations in terms of human rights, that is the internationally recognised standards that governments have already committed to, we have a less confrontational and potentially more transformative way to talk about lateral violence.

3.2 Human rights and lateral violence

Lateral violence is a human rights issue. Put simply, everyone has the right to be respected and safe.^[2] The weapons of lateral violence such as harassment and bullying are violations of this human right. Text Box 3.1 examines how lateral violence can negatively impact on a number of human rights.

The above Text Box demonstrates that lateral violence is clearly a human rights issue. In Chapter 2 I outlined at length how powerlessness is a key driver of lateral violence. For example Gregory Phillips described it as trying to ‘feel powerful in a powerless situation’.^[18] A human rights framework offers an alternative to using lateral violence to feel powerful. Peter Bailey explains how human rights are linked with power:

In its naked form, power is neutral. But the unregulated exercise of power, in whomever’s hands, is the primary threat to human rights. Rightly exercised power... can be a potent vehicle in the promotion and protection of human rights. Unconstrained power leads almost inevitably to tyranny and the restriction, or elimination, of the rights of the less powerful...

The reverse of the concern about those who hold power is the capacity human rights have to empower those who have little or no power. Empowering the powerless and regulating the powerful are associated with the revolutionary aspects of human rights...

The quintessential concern of the human rights enterprise is to raise to a status of dignity and equality each powerless person – persons who for reasons such as law, poverty, race, religion or gender are unable to achieve dignity, fairness, basic equality and justice...

Human rights set standards to guide the exercise of power into positive and advantaging, rather than destructive and disadvantaging, courses.^[19]

It is precisely because human rights standards can empower the powerless whilst regulating the damaging exercises of power that I believe they offer practical guidance in developing responses to lateral violence. In particular I believe that a human rights-based response is effective because:

• It provides governments and communities with a set of minimum and objective standards which can be used to establish a framework for a society based on dignity and equality.^[20]
• Addressing lateral violence and building stronger and deeper relationships within our communities is something that we as Aboriginal and Torres Strait Islanders must address. A human rights-based response places Aboriginal and Torres Strait Islander peoples as key actors in addressing lateral violence.^[21]
• Human rights incorporate responsibilities – all people are entitled to enjoy all human rights but they also have responsibilities to respect others rights.^[22] Consequently, Aboriginal and Torres Strait Islander peoples have responsibilities to each other and to their communities to eradicate lateral violence.

Since coming into the position of Social Justice Commissioner I have advocated that human rights have practical power, that they provide a practical framework or roadmap for creating a fair and just society.^[23] Developing responses to lateral violence requires this sort of framework. In the next section of this Chapter I will examine how the human rights standards contained in the Declaration can help develop our responses.

(a) The Declaration

Lateral violence is grounded in the historical oppression and colonisation that continues to thrive in our current environment because it feeds on powerlessness, identity conflict, negative stereotypes and trauma. The Special Rapporteur on the rights of indigenous peoples argues that the Indigenous human rights movement is underpinned by the acknowledgement that:

[H]istorical phenomena grounded in racially-discriminatory attitudes are not just blemishes of the past but rather translate into current inequities.^[24]

With this in mind it is useful to view the Declaration as a remedial instrument – created in response to discrimination and denial of human rights – and it can be used to address the contemporary effects of oppression and colonisation.^[25] The Declaration also catalogues in one place all human rights contained in international law and interprets them as they apply to the unique historical, cultural and social circumstances of Indigenous peoples. As a consequence the Declaration guides my exploration of responses to lateral violence.

I believe that Aboriginal and Torres Strait Islander peoples can use the Declaration in developing healthy, respectful and inclusive relationships, be they within their community, organisations or families. For example we can ask, are our representative organisations obtaining our free, prior and informed consent or how are they ensuring people participate in decisions that affect them?

The Declaration should also guide our relationships with governments and other third parties. It is, after all, an instrument of reconciliation.^[26] Therefore the way governments and others engage with us should be informed by the Declaration. Doing so can help ensure that these engagements strengthen rather than divide our communities.

Applying the Declaration as a standard would require our internal relationships, and those with governments and other third parties, to be conducted within, and contribute to creating, communities where each member feels secure in their identity and role within that community. This is a culturally safe and secure environment.

(b) Applying the principles of the Declaration

As discussed in Chapter 1 the Declaration contains a number of key principles that underpin all of the rights contained within it, including:

• self-determination
• participation in decision-making and free, prior and informed consent
• non-discrimination and equality
• respect for and protection of culture.

These key principles will assist in exploring responses to lateral violence.

(i) Self-determination

In Chapter 2 I outlined how the human needs theory provides insight into lateral violence – in circumstances where human needs are unmet there will continue to be conflict and lateral violence.

The source of this conflict can be addressed by enabling self-determination because it creates a process for the satisfaction of human needs. Importantly, these are the needs as determined by the people exercising the right, not the needs imposed by outside forces. In this context human needs extends to include concepts of distributive justice, identity and cultural security.^[27]

Historically Indigenous peoples have not been able to exercise the right to self-determination through a combination of cultural repression and imposed control stemming from colonisation.^[28] Disempowerment is magnified when we adopt imposed classifications of identity and negative stereotypes. Rather than attack the system that is imposing its will upon us, our communities attack each other.

What is meant by self-determination?

Self-determination, when realised, creates a community-wide agency that stifles the toxicity of victimhood and powerlessness. Michael Wehmeyer poignantly states that:

[S]elf-determined people are causal agents; they make things happen in their lives. They are goal oriented and apply problem-solving and decision-making skills to guide their actions. They know what they do well and where they need assistance. Self-determined people are actors in their own lives instead of being acted upon by others.^[29]

To achieve this right Aboriginal and Torres Strait Islander peoples should be able to exercise control over:

• identifying community priorities
• how their communities operate
• how decisions about their community are made
• what processes are used to make decisions
• how disputes are resolved.^[30]

Creating self-determining communities could have a significant impact on the wellbeing of our communities. The Growing them strong, together: Promoting the Safety and Wellbeing of Northern Territory’s Children, the report of the Board of Inquiry into the Child Protection System in the Northern Territory argues:

The sense of having control over one’s own life as an individual is a strong correlate of personal wellbeing. The significance of a people or ethnic group having control over their own collective lives is an extrapolation of this. There is powerful evidence in the international literature that both personal and political self-control correlate highly with health and wellbeing outcomes. Factors which are seen to mediate this include psychological stressors, socioeconomic status, freedom from racism, access to care, and so on.^[31]

A sense of control is transformative. This is precisely why it improves wellbeing. It can transform an individual or a community from the passivity of victimhood into pride, action and responsibility. A participant at an Australian Institute of Aboriginal and Torres Strait Islander Studies workshop on identity suggested:

The challenge is, without white people in the equation, we have choices. We can choose to collude with victim status, or collude with ‘blaming the victim’. Or we can choose to go ‘beyond the victim and just reject the whole stereotype.^[32]

As I have already highlighted rights incorporate responsibilities. This is particularly relevant for self-determination because it is not a right to ‘selfish-determination’.^[33] A clear example of this responsibility emerges from a discussion paper on Indigenous self-determination prepared for the Victorian Equal Opportunity and Human Rights Commission, which asked a range of Victorian Aboriginal people what self-determination means to them. One significant response recognised:

We need to demonstrate the maturity needed to be self-determining. Self-determination is not just warm and fuzzy and is not just about cultural revival, important as that is. It is about taking responsibility for the big challenges and engaging with the big issues.^[34]

A self-determining community not only exerts control but it also self-regulates. It decides how disputes are resolved, how decisions are made, what protocols for behaviour are acceptable, and it takes responsibility to ensure the well-being of the entire community.

The right to self-determination is accompanied by the responsibility to ensure that all people within the community are actively engaged. For instance, a community with unchecked family feuds that use decision-making processes as a platform for these feuds is not self-determining.

Solutions to lateral violence must be developed from within our communities and they must be owned by those communities. The role of governments is to foster the choice, participation and control of our communities. In other words it’s all about empowerment. Government interventions that impose solutions to fix our internal relationships are inconsistent with self-determination.

Empowerment is important because historical and continuing disempowerment breeds lateral violence. Carmen Lawrence has argued that disempowerment breeds ‘learned helplessness’:

[W]hen people repeatedly experience unpleasant events over which they have no control, they will not only experience trauma, but will come to act as if they believe that it is not possible to exercise control over any situation and that whatever they do is largely futile. As a result, they will be passive even in the face of harmful or damaging circumstances which it is actually possible to change.

Coming to accept that others control your life, and that nothing you can do will really make much difference is already a crippling combination of attitudes. Add to it the well known effect of the ‘self-fulfilling prophecy’ and you have a recipe for the social disorder evident in varying degrees in many Indigenous communities.^[35]

Averting this ‘recipe for social disorder’ requires strengths-based models, underpinned by the belief that our communities have the resources and the ability to address the challenges, like lateral violence, that confront us.

We need to be empowered to become the agents of our own change. The Department of Finance’s Strategic Review of Indigenous Expenditure informatively argued:

[E]vidence points to the benefits flowing from a genuine partnership with Indigenous communities, adopting a ‘strengths based’ approach, and building on the inherent leadership and wisdom within communities to create a new spirit for change and the embracing of essential reforms to personal behaviour.^[36]

Let me briefly recap, the solutions to lateral violence must come from within our own communities as they exercise their right to self-determination. The role of governments is to remove the obstacles that prevent us from taking control and also to build capacity within our communities so that we can take on these responsibilities.

(ii) Participation in decision-making and free, prior and informed consent

When a community is forced to live with an unequal power dynamic their internal processes for making decisions and resolving conflicts break down. When these community norms deteriorate lateral violence can flourish. Actively participating in decision-making can help restore and rebuild these positive community norms.

Internal participation in decision-making

Internal decision-making describes the processes that our communities or organisations use to make their decisions. Aboriginal and Torres Strait Islander peoples have the right to develop and maintain their own decision-making authorities and institutions – and this should be encouraged and respected by governments.^[37] This includes being able to determine who within the community makes decisions and what protocols need to be followed to guide this decision-making.

Unfortunately, our internal decision-making processes have been undermined since colonisation. Text Box 3.2 outlines how this erosion is common place for Indigenous communities across the globe.

When our decision-making structures have broken down and rules, protocols and democratic principles are ignored or devalued, these circumstances become opportunities for lateral violence. Personal or family gain can be had at the expense of others within a community. This breakdown is magnified when identity issues are being played out in these decision-making environments.

Evidence suggests that mainstream dispute and conflict management services are under-utilised and often ineffective in Aboriginal and Torres Strait Islander communities.^[39] This further compounds these caustic environments. Without the necessary protocols and structures to ensure disputes are resolved respectfully, conflicts divide the community and the cycle of lateral violence is further entrenched.

The ability to effectively exercise internal decision-making rights remains an elusive challenge for many of our communities and organisations. It is something that must be nurtured. As noted in Overcoming Indigenous Disadvantage 2011:

Good governing institutions do not just spontaneously arise. They are the result of often lengthy processes of developing capacity and leadership, and ongoing training and development. Good governing institutions support ‘board and staff training and development ... [and] compulsory governance training for board members’. The institutions of governance can be actively built, and building these institutions creates a strong internal governance culture, providing a strong foundation for sustained good governance.^[40]

I believe the success of our efforts to reinvigorate internal decision-making processes through strengthening our institutions of governance can advance efforts to confront lateral violence. The report of the National Alternative Dispute Resolution Advisory Council, Solid Work you Mob are Doing suggests:

The ability of Indigenous communities to deal with conflict in ways that reflect their local practice and reinforce local community authority not only help make communities safer and more enjoyable places to live, they also go some way to addressing the sources of dysfunctional and systemic conflict.^[41]

The development of Aboriginal and Torres Strait Islander communities’ capacity to make decisions, and resolve conflicts and disputes are fundamental components of building the capacity of internal participation in decision-making. Effective internal decision-making processes are respectful, build group cohesion, have democratic legitimacy and inbuilt dispute resolution mechanisms.

External participation in decision-making

External parties (governments, NGOs or industry), have obligations to ensure that Aboriginal and Torres Strait Islander peoples actively participate in decisions and processes that affect their rights.^[42]

When engaging with us, conflict and disagreement within our communities is not something that can simply be ignored in the hope it will go away. It won’t. These conflicts are often ingrained and external engagement will become another avenue to play out these feuds. Similarly, community disputes should not be used by external parties as an excuse for saying ‘it’s all too hard’. The presence of community disputes does not absolve external parties of their obligations to ensure we actively participate in decision-making that affects us.

External consultation and engagement processes need to be adequately established so that our internal decision-making, and if necessary dispute resolution processes, can operate effectively without pressure. This might take time and require space for the resolution of difficult issues. Making decisions and resolving disputes should occur on our timetable, not that of an interested third party. It is also essential to identify who within the community has decision-making authority whilst also ensuring there is a mechanism for all community members to participate.

External processes should build cohesion, not divide our communities. To achieve this they should strengthen our internal decision-making processes, this requires effective engagement.^[43]

Free, prior and informed consent

The principle of free, prior and informed consent can be used to develop decision-making processes that address lateral violence. It is one of the most important principles to protect the right to participate in decision-making and ensure it is expressed in a way that builds community cohesion.^[44] Text Box 3.3 provides a brief overview of free, prior and informed consent.

The principle of free, prior and informed consent should guide both the internal and external culture of decision-making.

It should be used by Aboriginal and Torres Strait Islander peoples to improve their own internal decision-making processes so that they are representative, inclusive and conducted without using the weapons of lateral violence like coercion and pressure. Processes should not be used as an opportunity to play out family disputes or to exclude dissenting voices. Disputes and disagreements should be resolved in a neutral, negotiated and safe environment without external pressure.

Free, prior and informed consent should also be used by governments and other parties to guide their engagements with our communities and to inform subsequent monitoring and evaluation of these processes.

The informed component of free, prior and informed consent, places obligations on the organisation seeking consent to ensure that the people giving consent are fully informed. That is, we must be told the good, the bad and the ugly of any decision that we may be asked to make. This means that affected Aboriginal and Torres Strait Islander community are to be informed of all the relevant information. If information is provided to a community in an ad hoc manner, weapons of lateral violence like rumours and innuendo can fill the void.

To minimise power imbalances, consultations should be conducted in the nature of negotiations and on an equal playing field.

External processes that are guided by free, prior and informed consent will increase the capacity of governments to engage with Aboriginal and Torres Strait Islander communities and reduce the possibility for such processes to be hijacked by internal disputes.

(iii) Non-discrimination and equality

Discrimination and inequality impacts on lateral violence for three main reasons.

Firstly, racial discrimination reinforces negative stereotypes about Aboriginal and Torres Strait Islander peoples. Over time these stereotypes can become internalised and lead to lateral violence.

Secondly, as already noted lateral violence thrives in environments where human needs are not met. Whilst Aboriginal and Torres Strait Islander peoples continue to live in unequal conditions, our communities’ human needs will not be met. For example, the Solid Work you Mob are Doing report highlighted that conflict within Aboriginal and Torres Strait Islander communities can be fuelled by overcrowded and inappropriate housing.^[47]

Finally, it is important to remember that equality requires an acknowledgement of cultural difference and recognition that historical discrimination has continuing negative impacts. Accommodating and accounting for this difference can create true equality. This is reflected in the second preambular paragraph of the Decalration which states:

Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such.

For me this means that when governments develop systems, be they education, health or any in other area, they have a duty to design such systems so that they accommodate difference, whether the people affected are Aboriginal or Torres Strait Islander, refugees, have a disability or are gender different. It should not be up to people who are different to navigate their way through systems that does not take into account their particular needs and circumstances.

In order to achieve circumstances of equality the structures of society must be reoriented to account for Aboriginal and Torres Strait Islander peoples difference. Again, governments cannot simply say ‘it’s all too hard’. Rather than requiring Aboriginal and Torres Strait Islander peoples to fit in with mainstream services and institutions, the onus is placed on governments and other third parties to accommodate the priorities of Aboriginal and Torres Strait Islander peoples and incorporate their internal decision-making processes. This requires the development of cultural competency which will be discussed in Chapter 4.

(iv) Respect for and protection of culture

Our cultural identities are an important source of strength for Aboriginal and Torres Strait Islander peoples. Mick Dodson powerfully captures this:

Alongside the colonial discourses in Australia, we have always had our own Aboriginal discourses in which we have continued to create our own representations, and to re-create identities which escaped the policing of the authorised versions. They are Aboriginalities that arise from our experience of ourselves and our communities. They draw creatively from the past, including the experience of colonisation and false representation. But they are embedded in our entire history, a history which goes back a long time before colonisation was even an issue.

Those Aboriginalities have been, and continue to be, a private source of spiritual sustenance in the face of others' attempts to control us.^[48]

However when cultural identity is perverted by issues of authenticity it generates conflict and lateral violence.

Culture as resilience

Aboriginal and Torres Strait Islander peoples are the holders of the longest known surviving continuous culture. We also have many cultural warriors and heroes. This is a source of strength and should instil pride in our communities. It can be used as a shield against the negative stereotypes that bombard us.

International research indicates that strength of culture in Indigenous communities creates resilience.^[49] For example a 2006 study in Canada found that the greater the cultural continuity in an Indigenous community the lower the rate of youth suicide.^[50] Figure 3.1 provides a short overview of this research.

Figure 3.1: Cultural continuity creating resilience[51]

Lateral violence breeds unhealthy cultural norms – bullying, engrained violence and intimidation to name a few. It undermines the strength we can, as communities and individuals, draw from our cultural identities and turns them into weapons to use against each other on the battleground. This impedes on our rights to culture because it undermines our right to feel safe in our cultural environment and identities.

Culture is dynamic

Culture and identity are not static. The Declaration characterises culture as dynamic – that it can and does change over time. It also recognises that undertaking cultural activities and maintaining cultural institutions does not exclude us from also participating in mainstream society.^[52] It is of fundamental importance to the wellbeing of our communities that this point is grasped – Aboriginal and Torres Strait Islanders have the right to maintain a cultural identity whilst also participating in the mainstream. The two are not mutually exclusive. We call it walking in two worlds.

In Chapter 2 I discussed the damage that issues relating to authenticity in identity are doing in our communities. Historical and contemporary government classifications and categorisations have been psychologically damaging, have undermined our cultural resilience and have acted as a trigger for lateral violence.

This categorisation of who is or is not authentically Indigenous based on location (urban/remote), language retention, cultural knowledge, educational status, kin-group and colour has led to conflict and social exclusion within Aboriginal and Torres Strait Islander communities.^[53]

For instance, an Aboriginal and Torres Strait Islander person who works in mainstream employment or in a government department does not hand in his or her identity as an Indigenous person upon employment. Yet we attack these people with derogatory language such as ‘coconuts’ to undermine their identity. This is also occurring at schools and within communities. It is lateral violence and it perverts cultural identity.^[54] It has its roots in the classificatory systems imposed on us, measuring the extent to which we had become ‘civilised’ or remained ‘tribal’.^[55] These historical characterisations now manifest in issues around who has an authentic Indigenous voice and false distinctions of who is ‘community’ or who is not. If we are to address lateral violence we must confront this within our communities.

Addressing the problems of authenticity does not only reside with us. Government processes can perpetuate conflict involving authenticity of identity. In the Native Title Report 2011 I examine how this is being played out in the way the native title system currently operates.

An often forgotten aspect of the right to culture that can help guide our communities and governments in addressing these concerns is that it includes a right to revitalise it.^[56] Our cultures are dynamic, where it has been significantly impacted it can be nurtured and where it is being undermined by lateral violence it can be revitalised and strengthened.

Difference and diversity

Any understanding of culture must recognise the diversity within Aboriginal and Torres Strait Islander communities. As it currently stands, much of the political and media landscape that impacts on Indigenous Australia fails to reflect this diversity. As discussed in Chapter 2, any difference in opinion, even with contentious and personal views like politics or ideology, is portrayed as dysfunction.^[57] Meanwhile, difference in opinion is accepted as the norm for mainstream Australia. Michael Mansell reflects on this false homogeny:

We are no different from any other people anywhere in the world. We have different lifestyles and different communities. We have different political attitudes and we have different aspirations. Even though there are many common threads which run throughout the Aboriginal [and Torres Strait Islander] communities in Australia, we tend to encourage the differences because they are healthy. The worst aspect of political life that can be imposed on Aboriginal people [and Torres Strait Islanders] is that we must all speak with one voice and say exactly the same thing.^[58]

This feeds into the ineffectual one-size-fits-all approach to Indigenous policy design and implementation.^[59] This inhibits government engagements from being able to accommodate differences within Aboriginal and Torres Strait Islander communities.

Further when we are not afforded the ability to disagree, we cannot develop responses to disputes that arise within our communities and more broadly within the Indigenous sector. Recognition and respect for diversity within Aboriginal and Torres Strait Islander communities is an essential platform for developing effective dispute resolution processes.

(c) The Declaration to guide practical actions to address lateral violence

The insights into lateral violence provided by the Declaration offer clear guidance that can be transformed into practical actions. Responses to lateral violence need to be designed to:

• empower us to take control of our community and community aspirations
• promote and develop our community decision-making and dispute resolution protocols
• address discrimination and negative stereotypes by promoting equality that recognises difference
• build culture as a form of resilience and strength that promotes healthy cultural norms and recognises differences and diversity.

Table 3.1 demonstrates that actions based on this guidance would seek to remedy the historical and contemporary drivers of lateral violence.

In the next Chapter I explore the concepts of cultural safety and security as providing responses to lateral violence that are guided by the Declaration.

3.3 Conclusion

This Chapter has clearly shown the connections between lateral violence and human rights. On one hand, we can see that lateral violence is a violation of individual and/or community rights. On the other hand, we can also see how a human rights-based framework as captured in the Declaration, offers the practical strategies to remedy the injustices that have created lateral violence. Human rights also give us ways to improve relationships within our own communities and also between governments and other third parties and our communities.

However, this is still quite a high level discussion. In the next Chapter I will extend the human rights-based framework that I have outlined, to provide even more practical responses based on the creation of cultural safety and security. I will draw on some inspiring case studies of community and government action to tackle lateral violence.

^[1] S Gorringe, J Ross and C Fforde, ‘Will the Real Aborigine Please Stand Up’: Strategies for breaking the stereotypes and changing the conversation, AIATSIS Research Discussion Paper 28 (2011), p 8. At www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 23 September 2011).

^[2] Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 5. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, articles 7, 9. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Convention on the Rights of the Child, 1989, articles 2, 19. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[3] For example see United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 7, 22(2). At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011); Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 5. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, article 7. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Convention on the Rights of the Child, 1989, article 19. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Committee on the Elimination of Discrimination Against Women, General Recommendation 12: Violence against women, UN Doc A/44/38 at 76 (1990). At http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom12 (viewed 23 September 2011); Committee on the Rights of the Child, General Comment 13: The right of the child to freedom from all forms of violence, UN Doc CRC/C/GC/13 (2011). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[4] International Covenant on Civil and Political Rights, 1966, articles 6, 7, 9. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, articles 1, 2. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 20 September 2011).

^[5] See C Tatz, Aboriginal Suicide is Different: Aboriginal youth suicide in New South Wales, the Australian Capital Territory and New Zealand: towards a model of explanation and alleviation, Criminology Research Grants (1999). At http://www.criminologyresearchcouncil.gov.au/reports/tatz/ (viewed 23 September 2011).

^[6] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 24. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011), Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 25. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011), International Covenant on Economic, Social and Cultural Rights, 1966, article 12. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Convention on the Rights of the Child, 1989, article 24. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[7] International Covenant on Civil and Political Rights, 1966, article 19. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 19. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011).

^[8] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 5, 13(2), 18, 19, 20(1), 23, 27, 30(2), 32, 36, 38. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 20 September 2011); International Covenant on Civil and Political Rights, 1966, article 25. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); Human Rights Committee, General Comment 25: The Right to Participate in Public Affairs, Voting and the Right of Equal Access to Public Service (art 25), UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 5. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d0b7f023e8d6d9898025651e004bc0eb?Opendocument (viewed 23 September 2011).

^[9] The Native Title Report 2011 examines how it is not uncommon for Aboriginal and Torres Strait Islander people to withdraw from participating in their native title claim to avoid the conflict, grief and trauma it causes.

^[10] Working Group on Indigenous Populations, Standard-setting: Legal commentary on the concept of free, prior and informed consent. Expanded working paper submitted by Mrs. Antoanella-Iulia Motoc and the Tebtebba Foundation offering guidelines to govern the practice of Implementation of the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources, UN Doc E/CN.4/Sub.2/AC.4/2005/WP.1 (2005), para 56.

^[11] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 17. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011); Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), article 23. At http://www.un.org/en/documents/udhr/ (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, articles 6, 7. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[12] See Australian Human Rights Commission, Information for Employers, At http://www.humanrights.gov.au/info_for_employers/ (viewed 23 September 2011).

^[13] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 14. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011); Convention on the Rights of the Child, 1989, article 28, 29. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); International Covenant on Economic, Social and Cultural Rights, 1966, article 13. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[14] Australian Bureau of Statistics (ABS), The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, Catalogue No. 4704.0 (2008). At http://www.abs.gov.au/ausstats/abs@.nsf/mf/4704.0/ (viewed 23 September 2011).

^[15] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 11-13. https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011); International Covenant on Civil and Political Rights, 1966, article 27. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011); International Covenant on Economic, Social and Cultural Rights, 1966, article 15. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[16] Convention on the Rights of the Child, 1989, article 6. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[17] Committee on the Rights of the Child, General Comment 5: General measures of implementation for the Convention on the Rights of the Child, UN Doc CRC/GC/2003/5 (2003), para 12. At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 23 September 2011).

^[18] G Phillips, Healing Identity in contemporary Australia: what is a real/traditional/grassroots Aborigine (Australian Institute of Aboriginal and Torres Strait Islander Studies Seminar Series, Canberra, 18 May 2009). At http://www.vimeo.com/moogaloop.swf?clip_id=9173079 (viewed 23 September 2011).

^[19] P Bailey, The Human Rights Enterprise in Australia and Internationally (2009), p 5.

^[20] See M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, The practical power of human rights (Speech delivered at Queensland University of Technology Faculty of Law Public Lecture Series, Brisbane, 19 May 2010. At http://www.humanrights.gov.au/about/media/speeches/social_justice/2010/20100519_practical_power.html (viewed 23 September 2011).

^[21] United Nations Development Group, The Human Rights Based Approach to Development Cooperation Towards a Common Understanding among UN Agencies (2003). At http://www.undg.org/index.cfm?P=221 (viewed 8 September 2011).

^[22] See Australian Human Rights Commission, Cyberbullying, human rights and bystanders, http://humanrights.gov.au/bullying/cyberbullying/index.html (viewed 7 September 2011).

^[23] See M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, The practical power of human rights (Speech delivered to Queensland University of Technology Faculty of Law Public Lecture Series, Brisbane, 19 May 2010). At http://www.humanrights.gov.au/about/media/speeches/social_justice/2010/20100519_practical_power.html (viewed 23 September 2011).

^[24] S J Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’ in C Charters and R Stavenhagen (eds), Making the Declaration Work (2009) 184, p 191.

^[25] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 6. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011).

^[26] The Declaration states that ‘recognition of the rights of indigenous peoples in this Declaration will enhance the harmonious and cooperative relations between the State and indigenous peoples’: United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 18. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011).

^[27] H Kok, ‘Reducing Violence: Applying the Human Needs Theory to the Conflict in Chechnya’ (2007) 3(11) Review of International Law and Politics 89, p 90.

^[28] See S J Anaya, Why There Should Not Have to Be a Declaration on the Rights of Indigenous Peoples (Speech delivered at the 52d Congress of Americanists, Seville, July 2006) in S J Anaya, International Human Rights and Indigenous Peoples (2009) 58.

^[29] M Wehmeyer, Self-Determination and the Education of Students with Disabilities, ERIC Clearinghouse on Disabilities and Gifted Education Digest No E632 (2002). At http://www.hoagiesgifted.org/eric/e632.html (viewed 23 September 2011).

^[30] See UNESCO, ‘Conclusions and recommendations of the conferences’ in M van Walt van Praag (ed) The implementation of the right to self-determination as a contribution to conflict prevention (1999), p 19; S J Anaya, Indigenous Peoples in International Law (2^nd ed, 2004), Chapter 3.

^[31] M Bamblett, H Bath and R Roseby, Growing them strong, together: Promoting the Safety and Wellbeing of the Northern Territory’s Children, Report of the Board of Inquiry into the Child Protection System in the North Territory (2010), p 116. At http://www.childprotectioninquiry.nt.gov.au/report_of_the_board_of_inquiry (viewed 23 September 2011).

^[32] S Gorringe, J Ross and C Fforde, ‘Will the Real Aborigine Please Stand Up’: Strategies for breaking the stereotypes and changing the conversation, AIATSIS Research Discussion Paper 28 (2011), p 11. At www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 23 September 2011).

^[33] Indigenous Governance Awards, Celebrating Indigenous Governance: Success stories of the Indigenous Governance Awards, Reconciliation Australia and BHP Billiton (2006), p 4.

^[34] L Behrendt and A Vivian, Indigenous Self-determination and the Charter of Human Rights and Responsibilities – A Framework for Discussion, Occasional Paper prepared for Victorian Equal Opportunity & Human Rights Commission (2010), p 19. At http://www.humanrightscommission.vic.gov.au/index.php?option=com_k2&view=item&task=download&id=502&Itemid=690 (viewed 23 September 2011).

^[35] C Lawrence, Us and Them: Breaking Down the Barriers (Paper presented at Fulbright Conference: Healthy People Prosperous Country, 11 July 2008).

^[36] Department of Finance and Deregulation, Strategic Review of Indigenous Expenditure (2010), p 248. At http://www.finance.gov.au/foi/disclosure-log/2011/docs/foi_10-27_strategic_review_indigenous_expenditure.pdf (viewed 23 September 2011).

^[37] Expert Mechanism on the Rights of Indigenous Peoples, Progress Report on the study on indigenous peoples and the right to participate in decision-making, Report to the Human Rights Council, 15th session, UN Doc A/HRC/15/35 (2010), para 3.

^[38] Expert Mechanism on the Rights of Indigenous Peoples, Progress Report on the study on indigenous peoples and the right to participate in decision-making, Report to the Human Rights Council, 15th session, UN Doc A/HRC/15/35 (2010), paras 49-50.

^[39] National Alternative Dispute Resolution Advisory Council, Indigenous Dispute Resolution and Conflict Management (2006), p 1. At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_IndigenousDisputeResolutionandConflictManagement (viewed 23 September 2011).

^[40] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission (2011), p 11.8. At http://www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 23 September 2011). Note: In text reference removed.

^[41] Federal Court of Australia’s Indigenous Dispute Resolution & Conflict Management Case Study Project, Solid Work you Mob are Doing: Case studies in Indigenous Dispute Resolution & Conflict Management in Australia, Report to the National Alternative Dispute Resolution Advisory Council (2009), p 101. At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_SolidWorkyouMobaredoingReport (viewed 23 September 2011).

^[42] Expert Mechanism on the Rights of Indigenous Peoples, Progress Report on the study on indigenous peoples and the right to participate in decision-making, Report to the Human Rights Council, 15th session, UN Doc A/HRC/15/35 (2010), para 4.

^[43] For more details see: M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), Chapter 3, Appendix 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 23 September 2011).

^[44] Expert Mechanism on the Rights of Indigenous Peoples, Progress Report on the study on indigenous peoples and the right to participate in decision-making, Report to the Human Rights Council, 15th session, UN Doc A/HRC/15/35 (2010), para 34.

^[45] C Hill, S Lillywhite and M Simon, Guide to Free, Prior and Informed Consent, Oxfam Australia (2010), p 9. At http://www.oxfam.org.au/resources/filestore/originals/OAUs-GuideToFreePriorInformedConsent-0610.pdf (viewed 11 October 2011).

^[46] See Australian Human Rights Commission, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (2010), p 25. At https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/native-title-report-2011 (viewed 23 September 2011); Working Group on Indigenous Populations, Standard-setting: Legal commentary on the concept of free, prior and informed consent. Expanded working paper submitted by Mrs. Antoanella-Iulia Motoc and the Tebtebba Foundation offering guidelines to govern the practice of Implementation of the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources, UN Doc E/CN.4/Sub.2/AC.4/2005/WP.1 (2005), para 56.

^[47] Federal Court of Australia’s Indigenous Dispute Resolution & Conflict Management Case Study Project, Solid Work you Mob are Doing: Case studies in Indigenous Dispute Resolution & Conflict Management in Australia, Report to the National Alternative Dispute Resolution Advisory Council (2009), p 100. At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_SolidWorkyouMobaredoingReport (viewed 8 September 2011).

^[48] M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, The End in the Beginning: Re(de)fining Aboriginality (Speech delivered at Wentworth Lecture, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994). At http://www.humanrights.gov.au/about/media/speeches/social_justice/end_in_the_beginning.html (viewed 8 September 2011).

^[49] See R Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever Business: A Framework for Maintaining and Restoring Cultural Safety in Aboriginal Victoria, Victorian Aboriginal Child Acre Agency (2010), pp 29-30.

^[50] M Chandler and T Proulx, ‘Changing selves in changing worlds: Youth suicide on the fault lines of colliding cultures’ (2006) 10 Archives of Suicide Research 125.

^[51] In R Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever Business: A Framework for Maintaining and Restoring Cultural Safety in Aboriginal Victoria, Victorian Aboriginal Child Acre Agency (2010), p 30.

^[52] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), articles 5, 11. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011).

^[53] S Gorringe, J Ross and C Fforde, ‘Will the Real Aborigine Please Stand Up’: Strategies for breaking the stereotypes and changing the conversation, AIATSIS Research Discussion Paper 28 (2011), p 5. At www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 23 September 2011); Y Paradies, ‘Beyond the black and white essentialism, hybridity and indigeneity’ (2006) 38(4) Journal of Sociology 355.

^[54] S Gorringe, J Ross and C Fforde, ‘Will the Real Aborigine Please Stand Up’: Strategies for breaking the stereotypes and changing the conversation, AIATSIS Research Discussion Paper 28 (2011), p 7. At www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 21 September 2011).

^[55] S Maddison, ‘Voice and Diversity in Indigenous Politics’ (2009) 7(11) Indigenous Law Bulletin 19. At http://www.austlii.edu.au/au/journals/IndigLawB/2009/14.html (viewed 23 September 2011); M Goot and T Rowse, Divided Nation? Indigenous Affairs and the Imagined Public (2007), p 31.

^[56] ‘Indigenous peoples have the right to... revitalize their cultural traditions and customs’: United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), article 11. At https://www.un.org/development/desa/indigenouspeoples/ (viewed 23 September 2011).

^[57] S Maddison, ‘Voice and Diversity in Indigenous Politics’ (2009) 7(11) Indigenous Law Bulletin 19. At http://www.austlii.edu.au/au/journals/IndigLawB/2009/14.html (viewed 23 September 2011).

^[58] M Mansell quoted in F Brennan, One Land, One Nation: Mabo — Towards 2001 (1995), 73; S Maddison, ‘Voice and Diversity in Indigenous Politics’ (2009) 7(11) Indigenous Law Bulletin 19, pp 19-20. At http://www.austlii.edu.au/au/journals/IndigLawB/2009/14.html (viewed 23 September 2011).

^[59] See for example Northern Territory Emergency Response Review Board, Report of the Northern Territory Review Board, Attorney-General’s Department (2008). At http://www.nterreview.gov.au/docs/report_nter_review/default.htm (viewed 23 September 2011).