The United Nations Declaration on the rights of Indigenous peoples includes in Article 19 a fairly narrowly focused requirement for States to obtain free, prior and informed consent before adopting measures that may affect Indigenous peoples. The concept of free (with no coercion, intimidation or manipulation), prior (with the consent to be sought long enough before any activities are to take place to allow time for indigenous consultation and decision-making) and informed (including all necessary information such as the nature, size, term, environmental impacts including positive and negative consequences of them) consent is one that can be tailored by Aboriginal and Torres Strait Islander groups to ensure that there is effective decision-making on their lands and waters. The Native Title Act does not require groups to give free, prior and informed consent to any mining or other development projects.  However, there is nothing to stop Indigenous groups from developing policies that require companies that want to come onto their native title lands, from requiring information to:

1. Set out all the relevant information of a project so the group can understand what is proposed and what are the likely positive and negative impacts of it;
2. Provide a timetable for receiving the information, getting any necessary advice on it and having consultations within the group to make an informed decision about whether or not to agree to it and if so, on what conditions; and

Ensuring there is a reliable decision-making process to record either support or opposition to the proposal. Professor Mick Dodson has been recorded by the ABC as saying “the value of human rights is not in their existence, it’s in their implementation.  That is the challenge for the world with this declaration.  The standards have been set; it is up to us to meet them.” With the establishment of many native title corporations (PBCs) there is an increasing need to develop effective processes so that groups can insist on making decisions based on free, prior and informed consent.  By setting up policies and openly and transparently communicating them to the world, Indigenous groups can insist on implementing the high standards set out in the declaration. We see this as a type of assertive good governance, where a group can say to potential developers: this is how we do business on our land.

This is general advice only. Specific advice should be sought in each instance. © P&E Law 1 May 2016