International law imparts increasing significance to the concept of ‘free prior informed consent’ (FPIC) of Indigenous communities. International standards and jurisprudence emphasise that impacts on an Indigenous community should not occur without that community’s FPIC. But in practice, implementing FPIC is more complex: who is that community, how is their consent determined, and what occurs when these are disputed? Australia’s ‘native title’ system recognises rights and decisions of Indigenous peoples. Disputes about group membership and decision-making and representation over two decades have given rise to substantial jurisprudence on these matters. These Australian court and tribunal decisions do not directly apply FPIC. Nonetheless, they demonstrate how a legal system can address matters which, in the context of implementing FPIC, have proven challenging. This jurisprudence emphasises the importance of the group’s (1) knowledge about the matter for decision; and (2) involvement in that decision. Also significant is (3) the accountability of representatives. The authors argue that these concepts show that disputes about group membership and decision-making are not an insurmountable challenge to implementing FPIC.

Article by Joe Fardin & John Southalan, published in Journal of Energy & Natural Resources Law (2019, vol 37/4, p365-388)