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)1-24
Number of pages24
JournalJOURNAL OF ENERGY & NATURAL RESOURCES LAW
DOIs
Publication statusE-pub ahead of print - 15 Oct 2018

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

Cite this

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title = "Free, prior and informed consent: how and from whom?: An Australian analogue",
abstract = "International law imparts increasing significance to the concept of ‘free priorinformed consent’ (FPIC) of Indigenous communities. International standardsand jurisprudence emphasise that impacts on an Indigenous community shouldnot occur without that community’s FPIC. But in practice, implementing FPIC ismore complex: who is that community, how is their consent determined, andwhat occurs when these are disputed? Australia’s ‘native title’ system recognisesrights and decisions of Indigenous peoples. Disputes about group membershipand decision-making and representation over two decades have given rise tosubstantial jurisprudence on these matters. These Australian court and tribunaldecisions do not directly apply FPIC. Nonetheless, they demonstrate how a legalsystem can address matters which, in the context of implementing FPIC, haveproven challenging. This jurisprudence emphasises the importance of the group’s (1) knowledge about the matter for decision; and (2) involvement in thatdecision. Also significant is (3) the accountability of representatives. The authorsargue that these concepts show that disputes about group membership anddecision-making are not an insurmountable challenge to implementing FPIC.",
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author = "John Southalan and Giovanni Fardin",
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