By Hugh Christie

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) mentions the right to free, prior and informed consent (FPIC) in six of its articles, but what is it exactly? And how does it work in practice? 

Upholding the rights in UNDRIP is primarily the responsibility of governments, but there is increasing recognition that businesses should obtain the consent of Indigenous peoples before conducting activities on their traditional lands. Article 32 of the UNDRIP requires that governments obtain consent for mining activity on traditional land but, with one notable exception (the Aboriginal Land Rights [Northern Territory] Act 1976 [ALRA] ), Australia has yet to translate this right into legislation. However, in the absence of a suitable legal framework, the obligation to obtain free, prior and informed consent remains.

Footballers consent to bodily contact each time they step on to the field, including the risk of injury, so long as the rules and the spirit of the game are upheld. Should the umpire abandon his role or the playing surface turn out to be unsafe, have the players consented to this new and unforeseen danger?

The destruction of Juukan Gorge was approved before the extent of its cultural significance was known, highlighting the issue of ongoing consent – when new information comes to light, what are the obligations of a company operating on Indigenous land?

Companies can and often do go beyond their bare legal obligations – avoiding conflict is not only good for a company’s reputation, but good for the bottom line. Research by the Centre for Socially Responsible Mining shows that social conflict can cause huge losses for companies, not only in dollar terms but by taking up large amounts of senior executives’ time.[1] 14 of the 25 mining projects examined in that study involved conflict with the local Indigenous peoples.

Australian mining companies were once world leaders in their engagement with Indigenous peoples. However, ‘best practice’ does not necessarily mean ‘good practice’. The International Council on Metal and Minerals’ policy is that where consent is withheld by traditional owners but the project is approved by government, companies should make their own determination as to whether to proceed.

True consent involves the right to say no, and to have that decision respected. The other components of FPIC are critical to ensure equitable negotiations in seeking consent, and the following breakdown of FPIC is drawn from the Australian Business Guide to UNDRIP and the UN Global Compact. The accompanying quotations reflect some perspectives on negotiations from Indigenous participants, their representative bodies and mining company employees involved in the negotiations.

“I don’t think I’d call it consent…I mean they did the best they could to respond to it, but everything was so rushed through. Consent is when you have all the information, you understand it and you make a decision based on that.” – Industry Representative[2]

Free

• Indigenous groups should give their consent free from any form of coercion, manipulation or bribery.
• They should determine the timeline and process for obtaining their consent.
• Companies should not take advantage of power imbalances between parties and may need to invest in the capacity of Indigenous groups to engage in negotiations to address this point.
• Indigenous groups should feel free to withhold their consent. Indigenous peoples should not be of the view that the project will proceed regardless.

“I don’t think we had a choice. The government had already decided that it was going to come in anyway, regardless of what we said.” – Lutsel K’e Dene community member[3]

“I’ve seen those meetings with people crying. People saying, ‘We have no choice; so let’s get what we can out of it’. That’s a very unfortunate position for anybody to be put in. That is the reality of things right now. And I’ve often thought that people could say no. But they’d have to back it up, and they would have to blockade … And the media, you can be sure, would be hugely on the people’s side.” – Industry employee[4]

Prior

• Consent should be sought prior to the approval of the project or at the very least prior to the commencement of activities. Consent should be sought at the earliest opportunity, not when a legal or political need arises.
• Sufficient time should be allowed to access, understand and analyse the information provided.

“They’d just been worn down were the words they would use; meetings, meetings, meetings, and eventually they said yes.”  Industry employee[5]

• The decision-making process and timeline should be respected to allow Indigenous communities to follow their internal decision-making procedures.

Informed

• Information should be transparent and comprehensive. Positive and negative impacts of the project should be outlined, along with all revenue projections.
• Information should be culturally appropriate and accessible, in local languages where necessary
• Information should be provided continuously throughout the FPIC process and the life of the project.
• External parties should build the capacity of Indigenous peoples to engage in the FPIC process, particularly where the information is technical and complex. External, independent advisers should be provided for where necessary to ensure Indigenous peoples are fully informed.
• Identification of the impacts upon their cultural sites should be led by Indigenous peoples

“For me the consultations are disappointing. They [the Ministry of Hydrocarbons and Energy] come with their engineers, geologists and so on and their technical discourses are overwhelming. Within one hour we just duck our heads, because we do not know how to discuss with them.” Guarani Community Leader[6]

“Miners are typically highly technical people in their nature – a lot are very engineering people that typically will have that ‘I am right’ personality and it is hard for them to see beyond what might be the perfect technical solution to see a cultural solution that’s also technically sound.” Industry Representative[7]

Consent

• The right to consent is the right to say no.

Whether enabling true consent constitutes a ‘veto right’ forms the key point of contention between industry, government, and Indigenous groups. The ALRA points the way forward, with a government override mechanism allowing projects to be pushed through if absolutely necessary in the national interest.

• Decisions should be reached according to Indigenous peoples’ decision making structures.

“We know that this land was never surrendered to anybody. So we have a different view. Though the mining industry says that they have been regulated by somebody else’s legislation.” LKDFN community leader[8]

• Consent can be withdrawn in light of new information or a breach by the company of its obligations under an agreement.

“This is nothing but a hillbilly operation, run by a hillbilly miner with hillbilly regulators. Based on the woefully inadequate government response to the previous incident, we have no confidence that this will be taken seriously enough.”  – Aboriginal Corporation CEO[9]

• Consent should be given in stages or phases, depending on the nature and lifespan of the project
• Consent should be sought during major changes to the project or the closure of the project

There are many cases where mining companies have conducted negotiations in good faith with Indigenous peoples, reaching agreements that provided benefits for the community, and yet still failed to uphold the right to FPIC. Truly free consent is hard to find, particularly where governments have failed to legislate consent requirements into land rights or heritage protection legislation. With a better understanding of what is required companies can (and sometimes do) operate on traditional lands with a social license; that is a license granted by the Traditional Owners of those lands.

[1] Rachel Davis and Daniel M Franks, ‘The costs of conflict with local communities in the extractive industry’ (2011, CSI Mining International Seminar Paper 6)

[2] Viviane Weitzner, ‘Dealing Full Force: Lutsel K’e Dene First Nation’s Experience Negotiating with Mining Companies’ (Report of the North-South Institute, 2006)

[3] Ibid

[4] Ibid

[5] Geordan Graetz, ‘Ranger Uranium Mine and the Mirarr (Part 1), 1970–2000: The risks of ‘riding roughshod’ (2015) 4(2) The Extractives Industry and Society 132-141

[6] Riccarda Flemmer and Almut Schilling‐Vacaflor, ‘Unfulfilled promises of the consultation approach: the limits to effective indigenous participation in Bolivia’s and Peru’s extractive industries’ (2016) 37(1) Third World Quarterly 172-188

[7] Geordan Graetz, ‘Ranger uranium mine and the Mirarr (Part 2), 2000–2014: ‘A risk to them is a risk to us’’ 4(2) The Extractives Industry and Society 142-152

[8] Above n 2

[9] Above n 7