A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent

What you need to know

• 2021 was a big year for FPIC - most notably, in June the Canadian Parliament passed the United Nations Declaration on the Rights of Indigenous Peoples Act which enshrined FPIC into Canadian domestic law.
• In Australia, various groups continue to call for FPIC to be more robustly protected in Australia, with the Victorian Aboriginal Heritage Council advocating for the Aboriginal Heritage Act 2006 (Vic) to be amended to allow Registered Aboriginal Parties (RAPs) a veto power over cultural heritage management plans (CHMPs) that threaten harm to Aboriginal Cultural Heritage. 

What you need to do

Each proponent should:

• know what your local Indigenous community expects from you in relation to consultation and obtaining consent for project approvals;
• ensure your company's systems and processes provide for meaningful and authentic engagement with Indigenous communities over the full life cycle of a project – from mine planning to rehabilitation and closure;
• consider whether forums used to consult with Indigenous peoples could better incorporate FPIC;
• reflect on how shareholders, investors, lenders and insurance companies are demanding greater accountability, transparency and performance from companies with respect to engagement with Indigenous communities 

It has been a big year for FPIC

The Juukan Gorge incident changed the way native title and Aboriginal cultural heritage are regarded.  Unsurprisingly, the concept of "free, prior and informed consent" (FPIC) continued to be front of mind for Government, native title parties and proponents alike throughout 2021.  

Since we published our April 2021 article Free, prior and informed consent, some key events have illustrated that the need for FPIC continues to gain momentum.  This article contains an overview of these key events and trends across society generally and with respect to project planning in particular.

What is FPIC?

The concept of FPIC 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.  In short, FPIC refers to a right of Indigenous peoples to consent to activities carried out on their land on a free and informed basis.  

Developments in FPIC in 2021

June 2021 – UNDRIP Bill passes Canadian Parliament

In June 2021, the Canadian Parliament passed the United Nations Declaration on the Rights of Indigenous Peoples Act. 

The purpose of the Act is to ensure that Canadian domestic laws reflect and implement the standards set for Indigenous Peoples in the United Nations Declaration on the Rights of Indigenous People (UNDRIP).  The Act requires (amongst other things):

• the Canadian Government to, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP;
• the relevant Minister to, in consultation and cooperation with Indigenous peoples, prepare and implement an action plan to achieve the objectives of UNDRIP; and
• the Canadian Government to provide an annual report on the measures taken in the action plan.
  The Act will provide Indigenous communities with a strong platform to demand greater consultation and inclusion from proponents, the public and the Government.

June 2021 – Aboriginal Heritage Council calls for cultural heritage reform

Also in June 2021, the Victorian Aboriginal Heritage Council published a Discussion Paper entitled "Taking Control of Our Heritage", which called for self-determined reform of the Aboriginal Heritage Act 2006 (Vic).

The Heritage Council identified that, under current Victorian legislation, destruction like that of Juukan Gorge would be permitted, as long as a project proponent could argue that harm to Aboriginal cultural heritage had been minimised.  

The Heritage Council discussion paper proposes a number of reforms to the Aboriginal Heritage Act including that:

• the Aboriginal Heritage Act be amended to allow RAPs to veto cultural heritage management plans that threaten harm to cultural heritage.  Such a provision would be similar to the power to refuse an Authority Certificate found in s 10(f) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• the rights and responsibilities of prosecuting offences under the Aboriginal Heritage Act be transferred to the Heritage Council; and
• a regulation system for Heritage Advisors be created. 

Submissions regarding reforms to the Aboriginal Heritage Act and the Heritage Council discussion paper closed in November 2021.  The Victorian regime is regarded as one of the more progressive State schemes.  It is interesting to see that the Heritage Council thinks it still has some way to go.

October 2021 – Australian Heritage Council develops policy on FPIC

The Australian Heritage Council must work with Indigenous groups when assessing places for inclusion in the National and Commonwealth Heritage lists under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).  

In October 2021, the Australian Heritage Council published a policy statement on FPIC, which defines important concepts with respect to FPIC and outlines how the Council will work with Indigenous peoples in connection with its statutory role.

The policy recognises that FPIC is both a process and an outcome, and that determining FPIC in practice will depend on the context of the particular case.  The Council recognises that:

• seeking FPIC requires sustained and meaningful engagement throughout the life of the nomination and assessment of a place; and
• authority to speak for Country is determined by Indigenous communities themselves.
  Further, the policy outlines that when seeking FPIC, the Council will not require the granting or withholding of consent to be unanimous, depending on the circumstances of the case.  This is because there may be different levels of authority between those who speak for Country.

What does this mean for project development?

FPIC will continue to be an important concept for proponents and Indigenous groups.  The key challenge for proponents is learning how to turn FPIC as a theory into practice.  At the heart of this challenge is understanding what FPIC means for the Traditional Owners relevant to your project.

FPIC will remain on the agenda in the coming year, with Traditional Owners seeking greater involvement in project planning and decision making throughout the life of projects.  Looking beyond our shores, we are particularly interested to see whether other countries may follow Canada's lead by implementing UNDRIP into their respective domestic laws. 

Authors:  Sophie Westland, Senior Associate and Samantha Marsh, Lawyer