Meaningful engagement with First Nations groups helps inform the development process and improve decision-making, reducing the risk of costly delays or mistakes.
A strong relationship helps smooth not only the planning, design and construction but also the longer-term operation of a project. Good engagement is also a booster for the reputation of your business and your broader social licence to operate, globally.
In many cases there may be a legal requirement to engage with Traditional Owners – see ‘Land and Sea’.
Engagement is NOT sending an email, attending a dinner, or making a corporate sponsorship to a First Nations initiative.
Early engagement on proposed projects enabling free, prior and informed consent (FPIC), that proactively exercises First Nations rights and responsibilities, protects community interests, ensures control and a boardroom role in decision-making, and shares the economic benefits derived from a project, and the key enablers of project sustainability.
Best Practice Principles for Clean Energy Projects
The Network has designed Best Practice Principles for engaging with First Nations communities.
The 10 principles cover such things as ensuring projects provide economic and social benefits, mutual respect, clear communication, cultural and environmental considerations, landcare, business employment opportunities and free, prior and informed consent (FPIC).
These Principles should be followed by clean energy companies and the governments that regulate projects.
The Principles include:
- Engage respectfully
- Prioritise clear, accessible, and accurate information
- Ensure cultural heritage is preserved and protected
- Protect Country and environment
- Be a good neighbour
- Ensure economic benefits are shared
- Provide social benefits for community
- Embed land stewardship
- Ensure cultural competency
- Implement, monitor, and report back.
Project proponents should follow these Principles, from the initial planning stage of any clean energy development onwards, regardless of the minimum legal requirements to receive project approval.
Governments should also consider these Principles when assessing clean energy developments, including, for example, land, environmental and cultural heritage approvals, procurement and employment policies, and grant program funding requirements.
The Principles highlight best practice and reflect local conditions and legislation, as well as international frameworks and norms for engagement with First Nations communities, including the United Nations Declaration on the Rights of Indigenous Peoples.
What is Free Prior and Informed Consent?
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) requires States to consult and cooperate in good faith with First Nations peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent (FPIC) before adopting and implementing legislative or administrative measures that may affect them (article 19).
States must have consent as the objective of consultation before any of the following actions are taken:
- The adoption of legislation or administrative policies that affect First Nations peoples (article 19)
- The undertaking of projects that affect First Nations peoples’ rights to land, territory and resources, including mining and other utilisation or exploitation of resources (article 32).
The principle of free, prior and informed consent is linked to treaty norms, including the right to self-determination affirmed in common Article 1 of the International Human Rights Covenants.
- Free implies that there is no coercion, intimidation or manipulation.
- Prior implies that consent is to be sought sufficiently in advance of any authorisation or commencement of activities and respect is shown to time requirements of First Nations consultation/consensus processes.
- Informed implies that information is provided that covers a range of aspects, including the nature, size, pace, reversibility and scope of any proposed project or activity; the purpose of the project as well as its duration; locality and areas affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks; personnel likely to be involved in the execution of the project; and procedures the project may entail. This process may include the option of withholding consent.
- Consent of First Nations people should be determined in accordance with their customary laws and practices. The consent process will be undertaken through procedures and institutions determined by First Nations peoples themselves. First Nations people should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities. Consultation and participation are crucial components of a consent process.
FPIC allows First Nations to give or withhold consent to a project that may affect them or their territories. Once or if First Nations have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables First Nations to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.
How can I implement the principles of Free Prior and Informed Consent?
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. Therefore, early engagement with First Nations people is and will be central to many proposed clean energy projects.
The 2021 Australian government 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 made a recommendation that UNDRIP, and specifically free, prior and informed consent (FPIC), be enshrined in law.
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.
However, 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.
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.
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.
- First Nations Partnerships in the Clean Energy Transition
- United Nations Declarartion on the Rights of Indigenous Peoples (UNDRIP)
- OECD Guidelines for Multinational Enterprises on Responsible Business Conduct
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).
There is also 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.
What if I don't gain consent?
Australia presently has the second largest number of climate cases globally.
This database encompasses cases across several different substantive categories including:
- Project Approval (mitigation) cases.
- Project Approval (adaptation) cases.
- Corporate Accountability cases.
- Constitutional and Human Rights / State Accountability cases.
- Cases that broaden access to justice in climate cases.