A/HRC/51/50 technical and other assistance they need to participate in meaningful consultations without using such assistance to leverage or influence indigenous positions.75 38. In the State of Victoria, Australia, the Advancing the Treaty Process with Aboriginal Victorians Act 2018 established a self-determination fund to support “traditional owners and Aboriginal Victorians to have equal standing with the State in treaty negotiations” (art. 36). The State government has adapted its ordinary procedures to ensure that the act will be implemented through an Aboriginal-led process developed in partnership with an Aboriginal Treaty Working Group. 39. To ensure a balance of power in negotiation processes, dialogue should begin by defining the process itself, its objectives and steps, the resources needed and the time, place and modality of the dialogue. The lack of these elements undermines the opportunity for indigenous peoples to express their positions and obliges them to insert their claims and requests within the limitations of a predetermined structure that was not consensually established. 40. In Australia, for example, the Native Title Act 1993 established statutory processes through which native title claims can be determined,76 while the commencement of treaty discussions started later. It is reported that the pre-existence of the system of native title may undermine the bargaining power of indigenous peoples in treaty discussions, especially if the political institutions of self-government have not yet been established.77 41. As set out in article 18 of the Declaration, “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”. Indigenous peoples should not therefore be obliged to adopt other institutions or convert themselves into corporations in order to engage in meaningful dialogue and agreements with States. 78 42. Indigenous peoples need to establish the institutions that will lead them, according to their structures, traditions and cultures,79 without being forced to participate in a way that does not correspond to their own decision-making processes. Otherwise, failure to engage with legitimate representatives of indigenous peoples can undermine any consent received.80 Meaningful participation also means that all parties involved must be included in negotiations: failure to engage all rights holders may undermine the outcome. 81 43. Indigenous peoples have sometimes been excluded from the negotiation table, as in the reconciliation agreement between Germany and Namibia on allegations of genocide perpetrated against Herero, Nama, San and Damara peoples. 82 The Working Group of Experts on Peoples of African Descent observed that Germany had not consulted seriously with the lawful representatives of the minority and indigenous victims of that genocide to discuss reparations 83 and recommended that Germany ensure that those peoples were included in the ongoing negotiations between the two Governments. 84 44. In some instances, national human rights institutions and institutions created to address indigenous peoples’ issues85 play a fundamental role in efforts to rebalance power 75 76 77 78 79 80 81 82 83 84 85 10 A/HRC/12/34, para. 51, and A/HRC/39/62, para. 22 (c). Submission from Australia. Presentation by Janine Gertz at the Expert Mechanism seminar . A/HRC/39/62, paras. 20 (c) and 23. Ibid., para. 20 (c). Ibid., para. 23. Presentation by Atina Pamei Gaare at the Expert Mechanism seminar. Submission of the International Work Group for Indigenous Affairs. A/HRC/36/60/Add.2, para. 53, and A/HRC/WG.6/30/DEU/2, para. 29; see also Lisa Ossenbrink, “Namibia’s Ovaherero, Nama slam exclusion from Germany deal”, Al Jazeera, 1 June 2021, see https://www.aljazeera.com/news/2021/6/1/ovaherero-nama-descendants-criticise-germanysreconciliation. A/HRC/36/60/Add.2, para. 61. Such as the National Commission on Indigenous Peoples in the Philippines and the National Institute of Indigenous Peoples in Mexico.