5 A human rights-based approach to native title reform Article 19 of the Declaration articulates a positive duty on states regarding consultation: ‘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.’ Articles 31(2) and 32(2) and (3) specifically apply this positive duty on states to areas of cultural rights and land rights. As part of the right to free prior and informed consent, governments are under a duty to consult ‘whenever a State decision may affect indigenous peoples in ways not felt by others in society’, even if our rights have not been recognised in domestic law.26 Significant work has been done on what ‘consultation’ needs to look like in order for it to meet the requirements of the right to free, prior and informed consent.27 Moreover, back in 1997, the Bringing them Home Report set out that the right to self‑determination requires more than consultation. Self‑determination requires more than consultation because consultation alone does not confer any decision-making authority or control over outcomes. Self‑determination also requires more than participation in service delivery because in a participation model the nature of the service and the ways in which the service is provided have not been determined by Indigenous peoples. Inherent in the right of self‑determination is Indigenous decision-making carried through into implementation.28 Meaningful consultation and co‑design In a 2009 study on the duty to consult, the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People considered that the objective of consultations ‘should be to obtain the consent or agreement of the indigenous peoples concerned’.29 In 2009, then Social Justice Commissioner, Tom Calma, identified principles for effective consultation and engagement, drawing on existing work.30 In 2010, then Social Justice Commissioner, Mick Gooda, used existing international and domestic work on free, prior and informed consent to develop a set of principles for meaningful and effective consultation. Commissioner Gooda reviewed the consultation processes regarding two law reform initiatives and found them wanting in a number of respects, including that ‘the Government did not appear to approach the consultations … with the objective of obtaining the free, prior and informed consent of the people affected,’ and ‘had a predetermined outcome in mind in entering into the consultations’ (regarding the NTER measures).31 In Wiyi Yani U Thangani I noted that the term ‘consultation’ had lost any currency it might have once had in our communities, because despite numerous and extensive consultations by government, women and girls feel that they have not been listened to and have lost faith in ‘consultation processes’. They view consultation processes as tokenistic and a waste of their time; participation in consultations does not appear to them to deliver meaningful participation in decision-making.32 In Wiyi Yani U Thangani I noted that the term ‘co‑design’ is a more appropriate descriptor for what is required to uphold our rights to self‑determination and free, prior and informed consent. Australian Human Rights Commission 23