Free, prior and informed consent: how and from whom? An Australian analogue

Research output: Contribution to journalArticle

Abstract

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.
Original languageEnglish
Pages (from-to)365-388
Number of pages24
JournalJOURNAL OF ENERGY & NATURAL RESOURCES LAW
Volume37
Issue number4
Early online date15 Oct 2018
DOIs
Publication statusPublished - 16 Oct 2019

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Decision making
jurisprudence
International law
group decision
group membership
community
decision making
legal system
international law
responsibility
Group

Cite this

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abstract = "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.",
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Free, prior and informed consent: how and from whom? An Australian analogue. / Southalan, John; Fardin, Joe.

In: JOURNAL OF ENERGY & NATURAL RESOURCES LAW, Vol. 37, No. 4, 16.10.2019, p. 365-388.

Research output: Contribution to journalArticle

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