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Implementing free prior and informed consent in Australia

There is growing recognition that First Nations people should have the opportunity to be actively included in the clean energy transition as partners sharing in the economic benefits of development on their Country. 

Around 63% of Australia’s land mass is subject to Native Title claims or determinations, much of which may be needed for energy generation. 

Early engagement with First Nations people and obtaining FPIC is and will be central to many proposed clean energy projects.

 

A Way Forward: Government Inquiry

The Australian government held an inquiry into the destruction of 46,000 year old caves at Juukan Gorge in the Pilbara, Western Australia by the Joint Standing Committee on Northern Australia.

The final report released in 2021 made a recommendation that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and specifically free, prior and informed consent (FPIC) be enshrined in law.

 

Policy and legislation

Policy and legislative systems in Australia have yet to incorporate principles of FPIC as established in the United Nations Declaration on the Rights of Indigenous Peoples.

An emerging trend in the US is projects will not be financed unless the FPIC of impacted First Nations communities has been obtained under new policy being developed by its finance sector.

Governments in Australia must play their role too and keep ahead of these global developments. 

 

What should industry and investors do?

Industry does not have to wait for Governments to embed FPIC.

To dispense directors’ duties faithfully and protect projects from risk, boards must ensure FPIC is standard across company operations. It should be front of mind from the outset of any development. Similarly, investors should demand companies invest in and adopt FPIC standards and principles. 

Failure to obtain FPIC can result in operational and reputational risks, and more often legal risk.

Pursuing FPIC can be an effective mitigation strategy.

ESG (environmental, social, governance) considerations, aligned with international best practice, require project proponents to embrace principles and concepts such as the right to FPIC, equitable benefit sharing, project co-development and co-ownership and First Nations-led decision making. 

Particularly now with the rush for land, waters and critical minerals to support the clean energy value chain, resetting relationships and embedding FPIC should simply be seen as sound business practice.

Download FPIC Manual for Project Practitioners

Other references:

 

What does the Native Title Act say about consent?

Under the Native Title Act 1993 (Cth) the rights and interests of Native Title holders are protected.

Proponents or other seeking access to land covered by those rights and interests must consult and negotiate with impacted Native Title holders.

The Act establishes a process for determining First Nations rights and interests. 

It also requires proponents to engage with registered native title claimants or holders of rights and interests, such as requiring Native Title parties to be consulted prior to the valid grant of certain interests in land (for instance, grants of tenure for clean energy projects). 

Download Native Title Act

 

Indigenous Land Use Agreements 

Under the Native Title Act 1993 (Cth), there is the ability to enter into Indigenous Land Use Agreements (ILUA).

These agreements typically grant access to land in exchange for agreed compensation and other commercial or community benefits.

The types of ILUA specified in the Native Title Act are:
  • Body corporate agreements which are made for areas where native title has been proved to exist (a registered native title group);
  • Area agreements which are made where there are no registered native title bodies corporate for the whole area, and may deal with a range of future acts and access to non-exclusive agricultural and pastoral leases (a claimant group not yet registered as having a proven native title claim over the land/water); and 
  • Alternative procedure agreements which may be made where there are no registered native title bodies corporate for the whole area. They may also provide a framework for making other agreements about matters relating to native title rights and interests. This third type of agreement can be complicated if there are ILUAs being negotiated and entered into against wishes of First Nations groups.
Any party to an ILUA may (on the grounds all of the other parties agree) apply in writing to the Native Title Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements
The Native Title Act requires that the Registrar must give notice of the ILUA to any of the persons and bodies specified in the Native Title Act who are not parties to the agreement and must also notify the public. If all procedures and conditions are complied with, the ILUA will be registered. Once it is registered, the ILUA has effect (in addition to any effect it may have apart from the Act) and is enforceable between the parties. 

Download Native Title (Indigenous Land Use Agreements) Regulations 1999

 

What if I don't gain consent?

Development without consent may cause unnecessary costs, risk and delay.

 

Litigation

Australia presently has the second largest number of climate cases globally.

The Australian and Pacific Climate Change Litigation database includes cases across several different categories including:

  1. Project Approval (mitigation) cases
  2. Project Approval (adaptation) cases
  3. Corporate Accountability cases
  4. Constitutional and Human Rights / State Accountability cases
  5. Cases that broaden access to justice in climate cases

Download Climate Change Litigation database