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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
06/07/2018
Matters relating to constitutional change

de VILLIERS, Professor Bertus, Adjunct Professor, Curtin Law School

Committee met at 09:00

Evidence was taken via teleconference—

CHAIR ( Senator Dodson ): I declare open this hearing of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. I acknowledge that we are on the country of the Noongar people. I respect their laws and customs as they apply to these lands, and I acknowledge their leaders. With me this morning is the co-chair, Mr Leeser. There are other members of our committee, but unfortunately they are not present today and so there is just the two of us.

The committee was established by the Australian parliament to progress the notion of recognition of Aboriginal and Torres Strait Islander peoples. Our work is informed by the regional dialogues undertaken by the Referendum Council last year, which culminated in the Uluru Statement from the Heart. As you would be aware, the Uluru statement recommended a First Nations voice to advise the Australian parliament. Our work is also informed by the earlier works of the 2015 parliamentary committee and the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians. We are also, in our terms of reference, looking at the effectiveness of consultations in terms of organisations' capacities to have greater self-determination and to achieve economic self-sufficiency.

This hearing will be broadcast on the parliament's website and a transcript of the proceedings will be made available. Those present here today are advised that filming and recording are permitted during the hearings. I also remind members of the media who may also be present or listening on the web of the need to fairly and accurately report the proceedings of the committee.

I now welcome Professor Bertus de Villiers to give evidence today via teleconference. I've just got to read out a little section and then we can take your introductory statement, if that's okay. Although the committee does not require you to give evidence under oath, I should advise that this hearing is a legal proceeding of the parliament and, therefore, has the same standing as proceedings of respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussions.

Prof. de Villiers : Good morning, Chair, and thank you very much for the invitation to give evidence to the committee. It is an honour for me to be part of this process and I thank you for the invitation. By way of introduction, I will make five separate points, each with a bit of an explanation in order to then perhaps serve as a contour for further discussions. Firstly, I will ask whether a consultative body is the only option available to Indigenous people. Secondly, there is the question of whether the Constitution should be amended to create such a consultative body, or whether there is a statutory option as well. Thirdly, there is the question of how the consultative body should be elected. Fourthly, what powers should the consultative body have? And, finally, some questions that I believe require further discussion.

I will start off with the first question: whether the consultative body is the only option for Indigenous people. The answer to that, from a constitutional comparative law point of view, is no. There are other options available. I respect the choice that Indigenous people made at Uluru, but I think it is important for me, as a comparative constitutional expert, to briefly refer to some of the other options that indigenous people internationally have used in order to give them a voice in self-government and parliamentary processes.

There are eight examples that I'll point you to very briefly. Firstly, there are the reserved seats that are provided for indigenous people in New Zealand and India. Secondly, in some instances, such as Mauritius, there is a quota in the electoral system that requires minority communities to be included in the party lists to ensure that candidates are elected. Thirdly, in the case of South Africa, for example, there is a separate chamber of parliament, both at the state and the national level, in which traditional leaders are represented: in other words as part of parliament, not as an advisory body. Fourthly, there are examples of autonomy arrangements where indigenous people are given the power to govern themselves with regard to their culture, their traditions, their laws, their customs. This we find in places such as Finland and Canada and the United States.

Fifthly, there are examples of indigenous people forming part of the executive of countries. For example, in some of the states in Indonesia indigenous people form part of the monarchy. Sixthly, the European Charter provides for certain minority rights to be granted to minority communities, and that gives them special individual rights and special community rights as a collective entity. Seventhly, a constitution can allow courts to take into account the traditional laws and customs of indigenous people. The constitution of South Africa is an example of that. And then, finally, there can be arrangements for special educational facilities for indigenous people where their cultures, laws and customs are promoted, such as in South Tyrol in the north of Italy.

In the first question, my answer is that a consultative body is not the only option available to Indigenous people. There is a raft of other options available, but I respect that in the case of Uluru they have opted for a consultative body. I will just briefly refer you then to four consultative bodies that the committee may take note of in these discussions. One is that of the Sami in Finland and in Norway. The second is the Kosovo consultative committee, which was recently established in that war-torn country. There's a council for minorities in Singapore. And there's a minority advisory council in Germany. So when one does a review or an overview of these consultative bodies, one would see that there are several successful consultative bodies in the world that one can draw on.

The second item that I briefly want to highlight is the question of whether the Constitution should be amended to include a consultative body. My recommendation would be that the body should not be included in the Constitution, and I say so for seven reasons. Firstly, we know the process to amend the Constitution is very complex and time consuming.

Secondly, before an amendment can be called on the Constitution, all detail regarding the consultative body would have to be worked out, otherwise people wouldn't know what they are voting for, and that can take considerable time.

Thirdly, as we've seen internationally and also in Australia, people find many reasons to vote no in referendums. I mean everybody would have expected the republic referendum to get a resounding yes, and we know it got a no. This happens with referendums, that if there's a singular question, for a wide variety of reasons people may vote no.

Fourthly, the international embarrassment that would be visited upon Australia if a referendum is negative would be enormous. For a country that is known internationally as a lighthouse of democratic standards to reject by referendum a proposal for an advisory council for Indigenous people would be embarrassing, to say the least.

Fifthly, the Constitution, especially the Constitution of Australia, is not a flexible instrument. It's not a flexible document, which means if an advisory council is included in the Constitution and over time there's a need to adjust it, such an adjustment process would be very complex and even impossible.

Sixthly, internationally one could say that advisory councils are usually not created by constitutions. They are usually created either by statute or by executive action.

Finally, the seventh point is that recently we have seen very poor examples of what happens in referenda internationally. We've seen what happened with Brexit. We have seen what happened with the republican referendum in Australia. Most importantly—

Mr LEESER: I have to stop you there, Professor de Villiers, because I think that was a good result with the republic referendum in Australia. I'm just interposing; I don't want to stop your flow.

CHAIR: He was on the other side of the campaign.

Prof. de Villiers : Thank you, I take note of that. Finally, a very important example is that of Canada. Canada in the late 1990s had two efforts for major constitutional reform, and both got a no vote for quite disparate reasons. That is the risk of a referendum process.

So my conclusion with regard to the second question is that if one balances the cost-benefit processes and outcomes, I think an advisory body by statute is recommendable with the possibility of a constitutional amendment in the future.

The third question is: how should the consultative body be elected? I will make six short points. The first is that I would recommend that it be elected on a ward basis of regions that are smaller than states. Since the connection of Aboriginal people to their land is so important, I do not think a system of proportional representation would be adequate.

Secondly, there should not be a separate voters' role for Aboriginal people; that would have resemblances of apartheid. I think the electoral process should be free of association, where people can turn up at a voting booth and they can vote, and there is no testing of their Aboriginality.

Thirdly, there should be no disqualifications to vote in other elections. So if one has voted in the advisory council election, one should not be disqualified from voting in other elections, of course, at the local, state and federal levels.

Fourthly, I would suggest that elections for the council take place on the same day as state elections to ensure there is a higher turnout than we had previously with ATSIC.

Fifthly, it's important to ensure that candidates for such an election are indeed accepted by the Aboriginal community as being part of them. Therefore, there can be a short period after people have nominated for objections to be lodged against the acceptance of their nomination.

Finally, ideally the process of elections should be not party political. That is as far as the election of the advisory body is concerned.

The second-last point deals with what powers the consultative body should have, and there I make six points. The first is that the body should give advice with regard to matters that affect Aboriginal laws, customs and traditions. The challenge here is, however, that if the powers are too wide, the body may compete with parliament. On the other hand, if the powers are too narrow, the consultative body may lack credibility and legitimacy. So this is a fine balance to maintain.

The second point is: what would the advisory functions be about? Would it be with regard to narrow issues, such as Aboriginal law, culture and land, or would it be wider, including national issues, social issues, et cetera?

Thirdly, the word advisory body sounds innocent, but—as in an article that I've submitted to you—there is a risk of it becoming a 'toy telephone', as I call it, where people make advices but those advices are not listened to. And that will lead to great frustration in the entire society's mind, but also particularly in the mind of Aboriginal people.

I refer to four examples of advisory councils that may be worthwhile to look at. The first is out of South Africa, where there are traditional houses for Indigenous people: parliament remains sovereign, but these houses are formally elected. For all practical purposes, they are part of the legislative process, but parliament remains sovereign; the advice given is not binding. Secondly, there is the example of the Sami parliament, which can comment on legislation but which also has governance functions when it comes to the culture and traditions of the Sami people, this is specifically in Finland. Thirdly, there is the Minority Council in Germany. The Minority Council is an appointed body, but it gives advice and gives evidence to committees of parliament regarding relationships with minority communities. And then, finally, there is the minority council in Kosovo, which can actually exercise a veto on any matter that affects the minority communities. The core of this question—and I conclude with it—is: what is the status of the advice of such a proposed advisory body? Must the advice be sought by parliament? Must the advice be considered in good faith by parliament? Can the legislative process be delayed or interrupted as a result of the advice received or awaited? And, most importantly, can courts review the validity of legislation if consultation has not occurred? I think those are the essential questions that require further discussion.

In conclusion then, there are five questions that I identify to be discussed; not between us, but that I myself want to apply my mind to and further research. The first is, what is the scope of advice to be sought and given? The second is, how are decisions to be made within the advisory council—will it be a normal vote, will it be a vote per state, how will voting occur? The third is, what is the weight, if any, to be accorded to such advices by parliament? The fourth is, what review mechanisms, if any, are available if advices are not considered or not heeded? And then fifthly, an issue which is very close to my heart—I worked for many years for Indigenous people in the goldfields—is how to ensure that there's a close interaction between these representatives and native- title-holding groups and prescribed body corporates on the ground level, so that conflicts do not arise between those who work and care for the land on a daily basis and those who make advices in Canberra regarding whatever topics are allocated to them? Thank you, Chair, that is as far as my introduction is concerned.

CHAIR: Can I thank you most sincerely, Professor, for the thought that you've put into this, and the attention that you're raising in terms of further questions. They are a part of the search that we as a committee are also turning our minds to, and we would be certainly open to further submissions from you in the next phase of our endeavours. We have an interim report due at the end of July, but then in November, all things being equal, we will have a final report. There's an opportunity, once you've grappled with those questions you've identified at the end there, and it may be useful for us to have some further discussion with you.

Prof. de Villiers : Certainly.

CHAIR: Have you focused on the question of where would be the best place for advice to be delivered to the parliament? We've had a number of people say, 'look, it should be as early as possible'. If you join a party, you have impact through platforms and policies; and if you're an outside entity, you may be able to put submissions to them—but this is meant to be more than that. So how would an advisory board or council be effective in their advice to the government of the day—because it normally produces the bills—and at what stages within the parliamentary process would they be able to retain some effectiveness? For example, would it be before a bill was enacted? I presume that's the end of their advice. But up until what point in that process should they have a nexus, either with the parliamentary process or with the executive—that is, the minister or the cabinet in some way shape or form?

Prof. de Villiers : Yes, it's a good question. I don't think there is a simple answer to that, so let me say how I would unpack it. The first is, it depends on the type of bill which is considered. There may be certain legislation that goes to the very heart of Aboriginal society, laws and customs; an area of land that is sacred, say, and with those, one would expect consultation at a policy level—much sooner rather than later. So then one would expect the relevant minister, the head of the department, to consult or to make Aboriginal people or the consultative body aware of a policy being considered. So that is the first element of the answer: it depends on the type of bill.

The second element of my answer is that the success of advisory bodies often depends on the style rather than substance of leaders. I think, as we have seen with the traditional houses in South Africa and the Sami in Finland, both those communities will complain either that their advices are not sought, or they don't have enough time to formulate advices or, once they've given the advice, the advice is not heeded, which means that the substance of the statutory regime is very impressive, but the style of government lets it down. So I think the second point that I'll make is that, if a government is sincere to accommodate to accommodate Indigenous people, then their views would be sought from a policy level through to the final, legislative level.

The third answer to the question is that the most important place, I would say, for inputs would be in the committee phases, because that is where legislation is fairly well-defined, where there is a public record of what is being said, and where one can make an input that is recorded, in the way that this discussion of ours now is recorded.

The challenge, however, for Indigenous people is how to keep abreast of policy developments and legal developments. I note that the Sami people were here last week. I'm not sure if you've spoken to some of them, but one of the challenges they face is they have a very small council, just more than 20 persons, and for them to keep up to date with new legislative amendments and bills—to study into it, to research it, and to consult and to make submissions, is sometimes just too much. It's like being an Independent in parliament. You battle to cope. And so, at a practical level, I think when Indigenous people make their inputs would depend very much on the style of government but also on the capacity they have to do their research, to make their consultations, and to make their inputs.

CHAIR: To your knowledge, is there anything within the Australian Constitution that prohibits the Australian parliament from having other houses?

Prof. de Villiers : As I would see it, the Constitution creates two houses of parliament which constitute parliament. I cannot see that, without a constitutional amendment, one can create a third legislative house. However, one can create, by way of legislation, a consultative body that, by convention, carries important weight. I think that is the important distinction I've tried to make in my submission to you.

In South Africa, one has the traditional houses that are part of the constitution but they are not listened to. While in the case of the Sami people, their parliament is created by legislation but because of the weight they carry the impact that the Sami have on policy is arguably greater than the traditional people have in South Africa. I understand that Aboriginal people want to see their voice in parliament; that is what Uluru said. My caution is that a legislative status doesn't necessarily convert into political power and that perhaps having a body that is not necessarily in the constitution as a parliament but which carries important weight through convention is the most feasible option.

CHAIR: I have just one other matter before I pass to the co-chair. One of the concerns that the First Nations people have is the history of advisory bodies to the parliament where they can be set up under legislation and when, for one reason or another the parliament or the government doesn't particularly like them, they dismiss them. So this notion of entrenching a voice within the Constitution has arisen on that basis, it seems. Of course, the Indigenous voice itself would be legislated as a consequence of that head of power if it were enacted or passed through referendum. Would you like to comment on whether that gives people greater security or not?

Prof. de Villiers : There's no doubt that we have had an unfortunate experience up to now with advisory bodies that have come and gone, committees that have come and gone and advices that have been given and not heeded. In that sense, there's no doubt that that background would cause Indigenous people to be concerned about anything less than a constitutional amendment. I would say that, if a constitutional amendment is absolutely essential, the amendment should be of a minimalist nature; it should simply be as in the case of the Sami. The Sami constitution, the constitution of Finland, simply recognises the Sami as indigenous people and then allows for institutions to be created by statute for them to govern in their lands and regarding their culture. So, if there is a constitutional amendment, I wouldn't want to call it 'minimalist' because immediately people may be offended by that; I would call it a 'simplified recognition' so that the status of Indigenous people in the Constitution and in Australia is clear but the instruments to give them a voice are created by legislation.

The second point—and I agree with you—is what I call the 'toy telephone' where a body is created, it applies its mind, it gives advices and nobody listens to them. Recently, the Sami, for example, complained to the United Nations about this very aspect, that their advices are not being heard by the government of Finland. One option may be to include in legislation a term such as 'good faith negotiations' that we have in the native title regime where, once there is legislation that satisfies the test of advice being given, that advice must be considered in good faith. My concern is—and I must be honest—that Australian constitutional law is very much a parliamentary sovereignty, black letter law, and therefore any provision that tampers with the sovereignty of parliament would probably be frowned upon—but that is a political consideration; that is not my scientific consideration. Scientifically, I would say that there are ways to describe consultation to ensure that it's taken seriously, even though it may not necessarily always be accepted.

CHAIR: Thank you. I'll hand over to the co-chair.

Mr LEESER: . Professor de Villiers, I echo my co-chair's original comment to you. We're very grateful for your submission and for your presentation today. Yours was perhaps the first submission to our committee that I read where I thought, 'Here's somebody who's actually put deep thought into this area and provided us with things that are very useful.' You've continued that in your presentation today, so let me just express some gratitude to you for the thought and the experience you bring here in giving us some comparative perspectives. I'd like to deal with four themes. The first is a general question. When I've talked to colleagues about this, they've said, 'What's the purpose of the voice? What's the problem it's trying to solve? And how will it be any different to any other body that's gone before? What can it do that other bodies can't?' You might turn your mind to those questions.

Prof. de Villiers : Thank you for those kind comments. I do appreciate it. I met Mr Dodson many years ago when I worked in the Goldfields of Western Australia. The most joyful time of my life was the six years I worked for Aboriginal people in that community. Thank you very much for your comments. There's no doubt that we've not had a good history with advisory bodies. At the same time, we should acknowledge that democratic institutions take time to develop. The first parliament in the world wasn't a successful parliament. The first federation wasn't a successful federation. The first bill of rights did not survive a century. So these things develop over time. While I understand the scepticism of people when we talk about an advisory body, I do think that there's a national consensus which today would view an advisory body differently to 20 years ago. Of course, this doesn't give anyone any legal comfort, but I think there's a political opinion in Australia that the voice of Aboriginal people must be heard more effectively.

Turning to your question, 'What is the purpose?' I think it's accepted internationally that some minority communities, particularly Indigenous people, can be so neglected in policy making that a special mechanism must be created to hear their voice. One only needs to travel to other countries to see this. In Europe this is a debate, as it is in India, in Brazil, in Nigeria and in South Africa. It is not exceptional, the debate and the discussion we are having today. In our case, it is a given that the voice of Indigenous people is not adequately reflected in parliament. Firstly, there are just too few Aboriginal people. Secondly, the party political agenda stifles the voice of Indigenous people and therefore I think a clear case can be made for Indigenous people, on a non-party political basis, to be able to speak about their land, their culture, their community, their laws, their customs and the things that impact on them. So I do think there's a very clear purpose, and I think international law, in practice, would support that.

The second question is: what is the problem? Every day we see languages diminish, we see languages die out, we see customs not being promoted, we see children in schools not necessarily reading about and learning about their culture, their customs and the languages. We know about socioeconomic issues facing Indigenous people. We know about their care of land that has not always been taken heed of. The special status of Aboriginal people as the original owners of this land justifies them being given a special voice. We will not be the first country to do this. The Americans and the Canadians do it already, and the New Zealanders do it. Sometimes in our debates we approach this as though we are breaking new ground. We are not really breaking new ground. There are ample examples internationally.

Mr LEESER: In relation to international examples having those structures, and there is our term of reference (b), have any of those international examples led to better economic prosperity or better social policy outcomes for the indigenous people that they serve?

Prof. de Villiers : I would say a qualified yes, but then I must also emphasise immediately that my expertise is in comparative constitutional law. One would probably have someone looking at the socioeconomic side of empirical data to answer your question. I think the best way to answer your question is with a negative question. That is, what would the conditions of those nations have been had it not been for an advisory body? If one said to the Sami today, 'Is your advisory body functioning well?' they would probably tell you with a grumble, 'No, it isn't.' If you say to them, 'Would you rather be without it?' they would say, 'Never—we want it.'

Mr LEESER: I understand the point you're making, but it's a different proposition. In some respects people may ask, 'I understand that it's good idea to give people a say in matters that affect them. You may get a better outcome.' You can set up a structure. I suspect that if economic prosperity and better social indicators—the Uluru statement talks about incarceration rates. If we're not connecting the consultative mechanism to better success in some of those areas, people will express some degree of frustration, I would have thought.

Prof. de Villiers : Let me give you examples where I would say these types of bodies led to positive economic outcomes. The first is the involvement of the Sami in the land management. Whenever there are activities planned for their traditional lands, their inputs are required. Secondly, they are capable of managing those lands and in the management they can reflect their own traditional laws and customs. The second is the obvious example of American Indian reserves in the USA and Canada, where recognition has given people a basis that was defined, from where they could undertake economic activities. The third example is that of traditional leaders in South Africa, where all local community development plans must include the local traditional leaders, so that they can make an input and can identify potential benefits that may be derived from local economic plans for a local Indigenous community.

So I think the political recognition inevitably, in the long term, leads to economic improvement. That's why people want political power, because they realise that through political power one can better take care of the interests of your community. It's harder to prove, and one needs a longer scale of research, but hopefully those examples would give you an indication of where I think it has happened.

Mr LEESER: That's very helpful. One of the things that interested me is your very good and useful expression 'the toy telephone' in response to some of the descriptions of some of those parliamentary bodies that exist in other places. I think particularly of Singapore, where I liked the structure, but knowing a little about Singapore one wonders to what extent this is just window dressing, as it has been in some of the other countries that you put together there. How do we prevent the voice becoming a toy telephone? I think it will create immense frustration if it's seen as that. By the same token, as you point out, we are a country that's deeply respects parliamentary sovereignty, so you want to say to people, 'Advice doesn't mean veto. Advice means that it will be listened to and properly considered, but at the end of the day if the broader elected representatives decide to go in a different direction, that's their prerogative.' Is there anything structurally we can recommend to try and prevent the voice becoming a toy telephone?

Prof. de Villiers : Yes. There are three comments I would make to that. The first is that ultimately it depends on political leadership. There needs to be a bipartisan buy-in. There needs to be a serious commitment. That cannot be legislated. That has to come from the heart. Unfortunately, that is where advisory bodies often fail. But that is also where leadership is required. That is the first leg to the answer—political leadership. The second leg to the answer is to provide for the obligation to consult in the statute. In other words, suppose for argument's sake that there is a statute that creates this advisory body, and that in the statute words are used that make it clear that the advices given by such a body must be given serious consideration. In South Africa—you will know from my accent that I am South African by birth—we developed two concepts in this regard. The one is 'in consultation' and at the other is 'after consultation'. One concept involves when you talk to somebody but the entire discretion remains with the decision maker. It can be a form of window dressing. The second is where one must show that you have seriously considered what was put to you, without necessarily having accepted it. So I believe, and I may future be able to assist your committee with this, but I believe that one can provide in legislation for a form of words that respects the sovereignty of parliament but ensures that the parliament seriously considers whatever devices are put to them.

The third answer is, one must be clear about the objectives of this council. Let me say why. The more narrow the objectives, the easier it would be to know when they are consulted. The wider the objectives, the more of a motherhood thing it becomes and the more reluctant parliament would be to consult. So I think it's essential for committees such as yours, if I may say so, to clarify what is in the scope of advices, because that will determine how seriously one can expect parliament to take those devices.

Mr LEESER: Should that be done at the time that advice is sought, or should it be done on the establishment of the body? In other words, should it be on a case-by-case basis? For instance, the minister for Indigenous affairs might say, 'I'm thinking about a plan to deal with improving school attendance.' It might set out a scope for advice in relation to that. That's as opposed to having something in the legislation that establishes the body that says that the body will do X, Y or Z. Which do you think is the preferable way of doing that?

Prof. de Villiers : I would adopt a combination. I do trust our political leaders, but I don't trust them sufficiently to say that the sole discretion must be in their hands when they consult. I think that would put the body at a high risk of never being consulted, or that there may be such a different approach between different ministries that the body may lose its credibility. So I would have three responses to what you are asking. The first is that I think the statute must identify certain areas where advices must be sought. When it comes to land, to culture, to customs, to local issues that are important to Aboriginal people, I believe that there are advices that must be sought. The statute must make that clear. The second is that there may be a category where their advices may be sought. Finally, the consultative committee or council must also be given the discretion to self-initiate advices. So if there is a matter that they believe is important, but they hadn't been consulted on, they should have the right to make a submission and to approach government and a parliamentary committee and give their advices. So I would classify those in three categories: must, may, and self-initiate.

Mr LEESER: One last line of questioning. It relates to advice that we've been given pretty consistently across the board from Indigenous people that we've spoken to. That is that a voice in Canberra is one thing, but really what they're looking for is local and regional voices as well, or with priority, in a way. Are you familiar with any systems around the world where they have a local voice that feeds into a regional voice that feeds into a national voice? If we were to recommend something along those lines, do you have a view about how that might be structured?

Prof. de Villiers : I think that goes to the heart of it. Having a national body that speaks about community issues may cause severe strife in Aboriginal communities. I think it's essential that there is a way of securing a national consultative body, but also pursuing state-wide agreements with Indigenous people. I myself in Western Australia have many times spoken in favour of agreements between the state government and departments of the government and prescribed bodies corporate to ensure that at a local level there is an interaction where Indigenous people cannot only make inputs in policy but where they can also administer policy and take responsibility for the management of matters that fall within their regions. The Noongar settlement is ideal for that, where there's this massive area in which the Indigenous people are recognised. That is calling for a form of formal interaction with the state government. The question that you asked me is whether I know of any case where this applies internationally. The prime example that I would refer to is that of the arrangements in South Africa, where at all three levels Indigenous people must be consulted. In South Africa there are what are called local area development plans. Those local area development plans look after infrastructure development, employment opportunities, tourism et cetera. Indigenous people must form part of that process.

Mr LEESER: How are they constituted to form part of that process?

Prof. de Villiers : In the case where there are traditional leaders and tribes, the tribe leader is invited. Otherwise, they are simply invited by the local province, which is our state, in order to participate. So it is at an individual level, sometimes, not necessarily at an organisational level, but their voice must be heard at local area development committees. The second level where they're represented is at the state level, where there are formal houses for traditional leaders. The third level is the National House of Traditional Leaders. That house is comprised by members of the state houses of traditional leaders. I must say immediately that South Africa institutionally is impressive, but practically, not necessarily. So in answer to the question that you asked me about whether I know of a system where at all three levels Indigenous people are involved, I say yes. The South African institutional framework provides a very useful point of reference.

Mr LEESER: I'd be grateful for you giving some further thoughts to how we might take a local, regional and national voice and have them linked in together. You obviously think a lot about these issues, and if you were able to assist the committee further I would be very grateful.

Prof. de Villiers : Thank you. I will take that as an invitation and I'll prepare some thoughts and a submission in that regard.

CHAIR: Professor de Villiers, can I thank you yet again for a great submission. Your contribution has added to what's in the submission, and your preparedness to take on further investigations to some of the questions that we've put to you is most appreciated. If you want to meet our interim reporting deadline, it's 16 July. I know that's not that far away. We have to deliver a final report by November. The transcript of this hearing will be available to you and if there are any matters that need correction please contact us and advise any corrections that are necessary. Thank you for your evidence.

Prof. de Villiers : Thank you for the invitation and blessings on your work.