Native Title Year in Review 2022-2023

What you need to know

• The principles of FPIC have begun to appear beyond native title and cultural heritage matters.  For example, the Queensland Government refers to FPIC in its legislation setting out the path to Treaty and FPIC was included in a United Nations biodiversity framework and the requirement to obtain consent for biodiversity projects under the Commonwealth Nature Repair Bill. 
• FPIC is a cornerstone of proposed cultural heritage reform legislation.  
• The Senate has launched an inquiry into the application of UNDRIP in Australia. 

What you need to do

• Proponents should understand what FPIC means for Traditional Owners relevant to their projects and ensure that any engagement or agreement making process is aimed at satisfying FPIC requirements. 
• FPIC is not just a factor in native title and cultural heritage matters – proponents should consider how FPIC principles are embedded in all activities that involve or require engagement with Traditional Owners around Australia.  
  
   

FPIC on the agenda 

The concept of "free, prior and informed consent" (FPIC) has been at the forefront of the conversation about native title and Aboriginal cultural heritage reform ever since the Juukan Gorge incident in 2020.  Since we published our Native Title Year in Review 2021-2022 article "A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent", we have seen the concept applied in new areas, including biodiversity frameworks and Treaty legislation.

What is FPIC?

There is no universally accepted definition of FPIC.  The concept has generally been characterised as a best practice process for safeguarding the rights of Indigenous peoples against the impacts of projects carried out within or near Indigenous territories.  FPIC refers to the right of Indigenous peoples to consent to activities carried out on their land on a free and informed basis. 

We discussed the origins of the concept of FPIC in our Native Title Year in Review 2020 article "Free, prior and informed consent".

Developments in 2022-2023

Inquiry into the UN Declaration on the Rights of Indigenous People (UNDRIP) begins

In August 2022, Senator Thorpe re-introduced the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022.  The Senate referred the Bill to the Joint Standing Committee on Aboriginal and Torres Strait Islanders for report. 

The terms of reference provide that the Committee should report on options to improve adherence to the principles of UNDRIP in Australia.

Several submissions made by native title bodies and Traditional Owners suggested that the lack of appropriate processes for FPIC were at the heart of the problems with heritage and environmental protection laws.  They highlighted the importance of FPIC being defined by Indigenous peoples, rather than governments.  

The National Native Title Council submission called for FPIC to be legislated into the Native Title Act and other related legislation and states that the right of veto in the Northern Territory Aboriginal Land Rights Act "ensures that traditional Aboriginal owners in the Northern Territory have a significant say" in respect to projects on their lands.   

Proponent submissions emphasised the need for greater clarity on the application of FPIC to ensure that both communities and land users understand their rights and obligations.  Proponents particularly highlighted the need for clarity on:

• the definition of FPIC;
• how parties could prove FPIC was obtained;
• whether FPIC provides a right of veto; and
• who FPIC needs to be sought from (ie where native title has not been determined).

Submissions have now closed and the Committee has not indicated when it will deliver its report.

Although a private members Bill introduced by Senator Thorpe would be unlikely to gain significant traction in the Australian parliament, the Committee's report will be a useful contribution on this topic and may indicate the likely progress of FPIC and UNDRIP in Australian law.

Queensland's Path to Treaty Act enshrines FPIC

In May 2023, the Queensland Parliament passed the Path to Treaty Act 2023.  We discussed the effect of the Act in our 15 March 2023 article, "Queensland introduces Bill to Parliament to enshrine Treaty-making process". Section 6(2)(c) of the Act highlights that a principle for administering the Act is "the importance of Aboriginal peoples and Torres Strait Islander peoples being able to give free, prior and informed consent as part of treaty negotiations and the making of a treaty".

This is one of the first express references to FPIC in Australia legislation. However, we expect that FPIC will be a fundamental concept to the path to Treaty in other States.  For more information about the path to Treaty in Australia, see "Treaty update: Federal focus on the Voice to Parliament, while Treaty and Voice progress continues in the States and Territories".  

Western Australia's new Aboriginal Cultural Heritage Act introduces 'informed consent' (effectively FPIC)

Western Australia's new Aboriginal Cultural Heritage Act 2021 (WA), which substantially commenced on 1 July 2023, introduced a tiered activity and approvals regime regulating impacts on Aboriginal cultural heritage.  Those activities that are "tier 3" activities, that will or may harm heritage, cannot be lawfully conducted unless the subject of an approved (by Traditional Owners) or authorised (by the Minister) Aboriginal cultural heritage management plan (ACHMP).

After reaching an agreement with Traditional Owners as to the terms of an ACHMP, the proponent makes an application for approval to the ACH Council, and needs to provide as part of that process evidence of Traditional Owner 'informed consent' to the ACHMP.  The new Act provides that consent cannot be informed consent unless:

• the proponent has given the Traditional Owners full and proper disclosure of information about the activity the proponent intends to carry out under the plan; and 
• the consent is given voluntarily and without coercion, intimidation or manipulation.

This is the first version of FPIC in Western Australian law. Of course, an 'approved' ACHMP is not the only pathway to legal harm (as ACHMPs not agreed with Traditional Owners can still be 'authorised' by the Minister).  The extent to which the Minister will exercise that discretion is still uncertain, particular when asked to do so in the face of active opposition from Traditional Owners.  

For more information about the new WA cultural heritage legislation, see "1 July 2023 - WA's new Aboriginal heritage laws have commenced".

Kunming-Montreal Global Biodiversity Framework

Australia is a party to the Convention on Biological Diversity.  In December 2022, the parties to the Convention adopted the Kunming-Montreal Global Diversity Framework which aims to halt and reverse biodiversity loss.

The Framework acknowledges the important role and contributions of Indigenous peoples as custodians of biodiversity and partners in its conservation.  The Framework states that the knowledge (including traditional knowledge) associated with biodiversity should be respected, documented and preserved with Indigenous peoples' FPIC, including through their full and effective participation in decision-making. 

The Federal Government has begun to reflect its commitment to the Diversity Framework via a range of activities, including the introduction of the Nature Repair Market Bill (see below) which is currently passing through Parliament. 

The Nature Repair Market Bill

On 29 March 2023, the Federal Government introduced the Nature Repair Market Bill 2023 to establish a national voluntary framework to enhance or protect biodiversity. The Bill borrows from the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (CFI Act) by requiring proponents to obtain the consent of registered native title body corporate (RNTBC) or Aboriginal Land Councils in certain scenarios in order to have the biodiversity project registered. 

Interestingly, the Bill departs from the CFI Act by providing that the Regulator can register a project subject to a condition of obtaining the written consent of the RNTBC to the carrying out of the project but only in circumstances where consent has been obtained from RNTBC that the biodiversity project can be registered.  

This goes some way to adopting recommendation 11 of the Chubb Review Report that the CFI Act should be amended to remove the option to conditionally register carbon projects on native title lands prior to obtaining consent because conditional registration is inconsistent with FPIC. 

The drafting of the Bill could be a neat solution which gives the Regulator comfort that the project proponent has obtained in principle consent from the Traditional Owners for the project to be registered, whilst allowing the parties further time to work through the details of the finalised consent agreement. 

Assuming the Bill passes in this form, it could also foreshadow potential changes to the CFI Act to address the recommendations in the Chubb Review Report.

Australian Government response to the report on the destruction of Indigenous heritage sites at Juukan Gorge

In November 2022, the Federal Government agreed to implement seven of the eight recommendations made in A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge that was released in October 2021. 

We wrote about the Way Forward Report and its implications in our Native Title Year in Review 2021-2022 article "Modernisation of cultural heritage protection legislation begins" and the Federal Government's response in our November 2022 article "Federal Government releases response to Way Forward Report".

The Government has committed to reforming the national cultural heritage protection framework through a co-design process.  

The three reform options currently being considered all enshrine the right FPIC and the right to self-determination, with decision-making in the hands of First Nations people.  See "No new Federal cultural heritage legislation in 2023".

What happens next?

We will continue to monitor how FPIC is influencing the development of legislation in Australia. The key question for Government to address for any new legislation that has touch points with Traditional Owners is what FPIC means in different scenarios. 

We expect to see the release of the Joint Standing Committee's report on UNDRIP in the short-term, and a second Options Paper for Federal cultural heritage legislative reform.  

In the meantime, proponents should understand what FPIC means for Traditional Owners relevant to their projects and ensure that any engagement or agreement making process is aimed at satisfying FPIC requirements. 

FPIC is not just a factor in native title and cultural heritage matters – proponents should consider how FPIC principles are embedded in all activities that involve or require engagement with Traditional Owners around Australia.

Authors: Sophie Pruim, Graduate; Sophie Westland, Senior Associate.