Indigenous Children's Right to Participate in Law and Policy Development

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Indigenous Children's Right to Participate in Law and Policy Development

By: Holly Doel-Mackaway

Video Interview

Holly Doel-Mackaway and Natasha Blanchet-Cohen discuss Doel-Mackaway's book, Indigenous Children’s Right to Participate in Law and Policy Development. Watch https://www.youtube.com/watch?v=hO1UaPgAsvU&feature=youtu.behere on the SHCY Youtube Channel, or listen to the conversation as a podcast. Other episodes of the SHCY podcast are available at our podcast website, or you can subscribe on Google Podcasts, Apple Podcasts, Spotify, and wherever you get your podcasts.

Holly Doel-Mackaway is a human rights lawyer and Senior Lecturer at the Macquarie Law School. Natasha Blanchet-Cohen is Professor of Applied Human Sciences at Concordia University in Montreal.

This review was originally published in the International Journal of Children's Rights 30, (2022), 605-609:

Holly Doel-Mackaway.

Indigenous Children’s Right to Participate in Law and Policy Development.

Routledge, 2022.

Thirty years on from the adoption of the UN Convention on the Rights of the Child (UNCRC), there is growing recognition that implementing child rights to participation requires a renewal in approach (McMellon and Tisdall, 2020). Holly Doel-Mackaway’s Indigenous Children’s Right to Participate in Law and Policy Development is thus welcome, providing fresh ideas on why and how Indigenous children can be involved in policy making. Indeed, while the UNCRC was the first international human rights treaty specifically to protect the rights of Indigenous children, the rampant violation of their rights persists globally. Current statistics on every indicator – child protection, health and prisons, for example – point to disparities between Indigenous and non-Indigenous children, highlighting that there is something desperately wrong with the current situation (“Continuing Need”, The Lancet Global Health, 2021). Yet Article 30 of the UNCRC ensures the cultural, religious and language rights of Indigenous children, and since 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides for basic human rights, as well as the right to self-determination of Indigenous people, including children.

The context for the book is the Australian government’s Northern Territory National Emergency Response (NTER) Act, established in 2007, and its replacement in 2012 with the Stronger Futures legislation which remains in effect as of this writing (referred to as the Intervention). The Northern Territory represents the third largest federal division in the country and is predominantly populated by Aboriginal people. Positioned by the government as a way of addressing issues faced by communities in the territory (i.e., unemployment, alcohol abuse and child protection), the Intervention permits a portion of welfare payments to Aboriginal communities in the territory to be given via a BasicsCard that is restricted to purchasing basic goods. Furthermore, the law sets out strict alcohol regulations that include placing blue and white warning signs at the road entrance to the 73 communities. Finally, changes to established practices of land tenure are permitted. The law, implemented without consultation with the Aboriginal peoples, undermines self-determination by overriding the territory’s self-government provisions. Evaluations on the measures have demonstrated their ineffectiveness in meeting their intended objectives, highlighting the discriminatory undertones and paternalistic approach.

Doel-Mackaway contends that the Intervention exemplifies the desolate persistence of a welfare-based approach, entirely at odds with children’s rights to participation and to human rights in general. Based on her doctoral work, in the first three chapters of the book Doel-Mackaway situates this argument in the context of current bodies of knowledge on children’s rights, child participation and childhood studies. Extensive footnotes and frequent presentation of key points make the book easily accessible for students or those less familiar with the child rights and participation literature, though at times the read can be a little repetitive. A core component of the book is a child rights-based approach informed by Indigenous methodologies used in the field research carried out with 10- to 17-year-old Aboriginal children from a school in the Northern Territory. The research, following relationship-building with the community, indicated that children experienced the effects of two measures – the BasicCard and the alcohol regulations – as increasing racism and shaming the community.

A key takeaway from this volume is the discussion in one of the later chapters on how children can play a key role in the design of legislation and policy in ways that combine a child-rights approach with Indigenous research methodologies. Highly sensitive to the potential misuse of legal instruments to impose a new form of colonialism, Doel-Mackaway proposes a model for participation that is ethical and culturally appropriate. Informed by Indigenous scholars Nakata and Ray, she convincingly contends that Indigenous research methodologies align with child rights in ways that ensure a relational ethic. While I would avoid considering the model a “template” (229), given the need to remain highly sensitive to the incredible diversity of Indigenous communities globally and for local and context-specific processes, her five elements can contribute meaningfully to informing governments on how to consult with Indigenous communities and children. Doel-Mackaway elaborates on the space component in Lundy’s (2007) model of participation, pointing to the importance of respect for community protocols, building relationships prior to seeking consent, as well as using methods that are both child-friendly and culturally appropriate, including yarning and play. This way, consultation processes can create an opening for Indigenous peoples to become part of shaping how participation and consent are translated into practice, using methods that are more Indigenous-driven.

Having worked as an ally in the area of Indigenous children’s rights for the past 25 years, I share Doel-Mackaway’s contention that the UNCRC provides a valuable opportunity to advocate for the well-being of Indigenous children in ways that can align with Indigenous worldviews (Blanchet-Cohen, 2015). As evoked in Doel-Mackaway’s study, Indigenous children are acutely aware of living under two systems of laws, and they seek ways of bridging the two systems, as reflected, for example, in the Mi’kmaw concept of “two-eyed seeing” (Marshall et al., 2018). General Comment No. 11 on the rights of Indigenous children UNCRC, (2009) recognises this by identifying, for instance, that Indigenous children’s best interests include both individual and collective rights. The UNCRC is a powerful tool, but it also needs to be reclaimed by Indigenous communities and children in ways that are consistent with Indigenous tradition and values.

Opportunities to uphold Indigenous children’s rights are interconnected to the spaces and provisions for Indigenous peoples’ rights. In reading the book, one is left with the critical question, what now? As presented by Blackstock et al. (2020), Canada and Australia have similarities in terms of colonial history and Indigenous ontologies, but the latter remains ‘significantly behind’ (6) in fulfilling its obligations under the UNCRC and international human rights instruments.

In Canada, for instance, the 2015 Truth and Reconciliation Commission’s (TRC) 94 calls to action is paving the way for reconfiguring the relationship between Indigenous and non-Indigenous peoples in ways that could make it possible for Indigenous children to participate. Another noteworthy case is the 2016 landmark Canadian Human Rights Tribunal decision, spearheaded by an Indigenous NGO, the First Nations Child and Family Caring Society, in which the systemic discrimination in Canada’s child welfare system was acknowledged. Children were part of taking action for change (King et al., 2016), demonstrating Doel-Mackaway’s point that children’s involvement is not only meaningful but should become the norm. These are positive signs that provide inspiration and that can be enhanced by both global dialogues and an increased understanding of the interconnectedness of rights – attending to all human rights will further children’s rights (Collins et al., 2020). As Ojibway Commissioner Justice Murray Sinclair stated at the release of the report of the Canadian TRC: ‘We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing’.

Indigenous children’s engagement is even more critical given their high proportion of young people compared to non-Indigenous counterparts in Australia and worldwide. In moving forward, I am galvanised by the words of Aboriginal and Torres Island children in the 2019 Imagination Declaration, referenced by Doel-Mackaway in her book: ‘Don’t define us through the lens of disadvantage or label us as limited ... [E]xpect us to continue carrying the custodianship of imagination, entrepreneurial spirit and genius. Expect us to be complex. And then let us spread our wings, and soar higher than before’.

About Holly Doel-Mackaway

Dr Holly Doel-Mackaway has been working in the children’s rights field for over 25 years as a social worker, lawyer and academic. She is an academic at the Macquarie University Law School in Sydney and her research focuses on international children’s rights law, in particular, children’s participation and protection rights, juvenile justice, girls’ rights, and Indigenous children’s rights. She co-leads the Macquarie University Children’s Research Network and is working on several grant projects spanning five continents. Holly collaborates with a range of human rights NGOs and regularly comments on child law matters in the media. She also plays an active role with the legal profession across the Asia-Pacific region in her role as the Expert Counsellor for Children, Indigenous people and Gender for the LAWASIA Human Rights Committee. She teaches Child Law and Constitutional Law and in 2021 was recognised as an educator of impact winning the Macquarie University student-nominated Vice-Chancellor's Learning and Teaching Award for her teaching excellence.

Before becoming an academic Holly worked as a social worker with women and children who had experienced domestic violence and sexual abuse and then pursued a career as a lawyer working across the Asia-Pacific region for the United Nations and various international NGOs advising on international children’s rights law. She has held senior positions with a range of child focussed agencies including UNICEF, Save the Children and the New South Wales Department of Community Services. Holly also operated a child rights consulting practice providing children's rights research, training, legislative and policy advice nationally and internationally on matters relating to child protection, girls’ rights, the commercial sexual exploitation of children, children engaged in armed conflict and child rights-based approaches to research and development.

This post is part of the SHCY Featured Books series, which provides conversations about important contributions to the history of childhood and youth.