From Required Participation to Protected and Compensated Participation: A Community-Governed Human Rights Pathway for Aboriginal and Torres Strait Islander Knowledge, Consultation, Authority and Redress

Australian legislation and public administration increasingly require or materially rely upon Aboriginal and Torres Strait Islander participation in decisions concerning culture, heritage, children, land, water, language, environment, education, health and public policy. Many of the instruments creating or relying upon that participation do not establish a corresponding enforceable entitlement to remuneration, institutional resourcing, control of Indigenous Cultural and Intellectual Property, or redress for past use. This article examines the resulting participation-remuneration gap and proposes a community-governed human rights pathway for correction. It distinguishes payment for labour from rights and interests in cultural knowledge, Indigenous Cultural and Intellectual Property, data, cultural authority, representation, organisational capacity and institutional or commercial benefit. The proposed framework includes a protected right to voluntary and fairly resourced Indigenous participation, a rebuttable presumption of compensation for targeted participation, a no-substitution rule, funded participation plans, minimum remuneration standards, Indigenous data and cultural knowledge controls, independent enforcement and a retrospective redress process. The proposal is presented for consideration, modification, rejection or replacement through properly funded Aboriginal and Torres Strait Islander-led deliberation. It does not claim to speak for Aboriginal or Torres Strait Islander peoples, communities, organisations, Traditional Owners, Elders, knowledge holders or cultural authorities.