A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent
11 October 2023
11 October 2023
Each proponent should:
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.
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.
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):
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:
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.
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:
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