Policy Statement No. 75 – FREE, PRIOR AND INFORMED CONSENT
UNDERSTAND OLD ONE
What if you came back now
To our new world, the city roaring
There on the old peaceful camping place
Of your red fires along the quiet water,
How you would wonder
At towering stone gunyas high in air
Immense, incredible;
Planes in the sky over, swarms of cars
Like things frantic in flight.
By Oodgeroo Noonuccal (Kath Walker)
INTRODUCTION
The right of Indigenous Peoples’ to have the ultimate authority over developments that affect their traditional
lands, waters, resources and communities, a process called Free, Prior and Informed Consent (‘FPIC’), is
recognised (to varying degrees) by many intergovernmental organisations, international bodies, conventions and
international human rights laws, and increasingly in the laws of State.
WHAT IS FREE, PRIOR AND INFORMED CONSENT?
According to general international agreement:
Free:
is the absence of coercion and outside pressure, including monetary inducements (unless they are mutually
agreed to as part of a settlement process), and “divide and conquer” tactics. It includes the absence of any
threats or implied retaliation if the results of the decision are to say “no”.
Prior:
is having sufficient time to allow for information-gathering and full discussion, including translations into
traditional languages, before a project starts. It must take place without time pressure or constraints that in any
way may compromise traditional decision-making structures and processes of the Indigenous Peoples in
question. A plan or project must not begin before this process is fully completed and an agreement is reached.3
Informed:
is having all the relevant information available reflecting all views and positions. This includes the input of
traditional elders, spiritual leaders, subsistence practitioners and traditional knowledge holders, with adequate
time and resources to consider impartial and balanced information about potential risks and benefits.
Consent :
is the demonstration of clear and compelling agreement, in keeping with the decision-making structures of the
Indigenous Peoples in question, including traditional consensus procedures. The existence of consent is usually
demonstrated by a signed agreement which may include an Indigenous Land Use Agreement, Memorandum of
Understanding or Plain English Statement, and a signed Consent Form by the parties.
INTERNATIONAL CONTEXT
The United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) was passed in
September 2007 after more than 22 years deliberation and was signed and adopted by all but 4 state members
for adoption of the principles within their own jurisdictions. Australia did not sign off on the UN Declaration then
but supported it in April 2009. By supporting the Declaration, the Australian Government is expressing its wish to
recognise and respect the rights of Indigenous people in this country as a foundation for getting better outcomes
which benefit all Australians.
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The UN Declaration explicitly affirms the Right to Free, Prior and Informed Consent and States’ obligations to
obtain it in many of its provisions, including:
Article 10:
affirms that Indigenous Peoples shall not be forcibly removed or relocated from their lands or territories without their Free,
Prior and Informed Consent;
Articles 19:
affirms that states must obtain the Free Prior and Informed Consent of Indigenous Peoples before adopting and
implementing legislative or administrative measures which may affect them;
Article 29:
affirms that Indigenous Peoples must give their Free Prior and Informed Consent before hazardous materials are stored or
disposed of on their lands; and
Article 32:
affirms that states must obtain Free Prior and Informed Consent before the approval of any development project affecting
Indigenous Peoples’ lands and resources, “particularly in connection with the development, utilization or exploitation of
mineral, water or other resources”.
The principle of Free, Prior and Informed Consent (FPIC) of Indigenous peoples to policies, programs, projects
and procedures affecting their rights and welfare is being discussed in a growing number of international,
regional and national processes. These processes cover a wide range of bodies and sectors ranging from the
safeguard policies of the multilateral development banks and international financial institutions; practices of
extractive industries; water and energy development; natural resources management; access to genetic
resources and associated traditional knowledge and benefit-sharing arrangements; scientific and medical
research; and Indigenous cultural heritage.
The Convention on Biological Diversity (CBD) is one of the most widely accepted international treaties. It is a
multilateral environmental agreement dedicated to developing a comprehensive strategy for sustainable
development. Its three main objectives, embodied in Article 1, are the conservation of biodiversity, the
sustainable use of its components, and the fair and equitable sharing of the benefits derived from the use of
genetic resources. In addition, FPIC as a principle has been acknowledged in the Convention on Biological
Diversity, with regard to access to and benefit-sharing of genetic resources.
DOMESTIC CONTEXT
1. Legal Status
The UN Declaration on the Rights of Indigenous People (the UN Declaration) is a non-binding instrument and
can inform on a range of rights that Indigenous peoples should expect but these provisions are not enforceable
under Australian law. The UN Declaration can inform on guidelines and policy content, however, its status is no
higher than a policy recommendation. To enable FPIC to become operational under Australian law the provisions
of the UN Declaration which relate to FPIC must be incorporated into domestic law. For example, into the Racial
Discrimination Act (Cwth); Native Title Act (Cwth); Heritage, Water and Environmental legislation, Aboriginal
Land Right legislation, the Corporations Act and the CATSI Act etc. Currently, the FPIC form principles of the UN
Declaration inform policy guidelines of some government agencies and organisations. However, where
breached, there is no penalty.
2. Organisational dialogue and concept development
The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) has led the discussions of the
FPIC concept since the early 1980s, with at least three major reviews to update the Guidelines for Ethical
Research in Australian Indigenous Studies (GERAIS). While Informed Consent was a major component of
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previous GERIS versions, the most recent review has incorporated the latest developments from the
International arena.
The categories considered as addressing the FPIC issues are:
- Rights, Respect and Recognition;
- Negotiation, Consultation, Agreement and Mutual Understanding;
- Participation, Collaboration and Partnership;
- Benefits, Outcomes and Giving Back;
- Managing Research: Use, Storage and Access;
- Awareness and Education for Ethical Research; and,
- Monitoring, Reporting, Review and Compliance.
The Australian Heritage Commission and the then Federal Department of the Environment, Water, Heritage and
the Arts published guidelines for doing business with Indigenous people called Ask First: A guide to respecting
Indigenous heritage places and values. While this was developed primarily for dealing with heritage matters, the
guidelines can be adopted for a broader range of environmental and associated cultural work with Indigenous
peoples. Specifically, Ask First recognises the rights and interests of Indigenous peoples with respect to their
heritage and tradition.
All parties involved in any way whatsoever in cultural heritage identification, conservation and management
should acknowledge, accept and act on the principles that Indigenous peoples:
Are the primary source of information on the value of their heritage and how this is best conserved;
Must have an active, substantive and empowering role in any Indigenous heritage planning process;
Must have principal input into primary decision-making in relation to Indigenous heritage so that they can
continue to fulfil their obligations towards this heritage and to their peoples; and,
Must control intellectual property and other information relating specifically to their heritage, as this may be
an integral aspect of its heritage value.8
The Aboriginal and Torres Strait Islander Commission (ATSIC) commissioned a report in 1998 entitled Our
Culture: Our Future to explore the issue of Australia’s Indigenous cultural and intellectual property rights which
included the issue of the requirement of prior informed consent.
A major concern of Indigenous people stated in the report was that their cultural knowledge of plants, animals
and the environment is being used by scientists, medical researchers, nutritionists and pharmaceutical
companies for commercial gain, often without their informed consent and without benefits flowing back to them.
ACF is committed to a Reconciliation Action Plan that includes the principle of Free, Prior Informed Consent and
incorporates those principles in ACF’s work.
POLICY
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ACF’s approach to free prior and informed consent of Indigenous peoples aligns with the UN
Declaration on the Rights of Indigenous Peoples and the Convention of Biodiversity and its principles.
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ACF specifically considers that:
a) Governments must obtain the Free, Prior and Informed Consent (see definition above) of Indigenous
Peoples before adopting and implementing legislative or administrative measures which may affect them
or their traditional lands, waters or related resources (including minerals, water, cultural sites, fauna and
flora).
b) Indigenous Peoples shall not be forcibly removed or relocated, permanently or temporarily, from their
traditional lands, waters or related resources without their Free, Prior and Informed Consent.
c) Indigenous Peoples must give their Free, Prior and Informed Consent before hazardous materials are
stored or disposed of on or, in their traditional lands, waters or related resources.
d) Indigenous people must have access to mechanisms to resolve disputes in relation to Free, Prior and
Informed Consent with governments and other parties.
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In light of the above, ACF commits to the following principles:
a) Free, Prior and Informed Consent must be obtained from Indigenous Peoples before the approval of any
development project which may affect them or their traditional lands, waters or related resources.
b) Free, Prior and Informed Consent is a necessary, but not sufficient, condition for any development,
conservation or research project to proceed.
c) Conservation projects should fully protect and recognise Indigenous people’s Native Title rights and
interests.
d) ACF has an important role to play in the debate over the future of Indigenous lands and waters and the
Free, Prior and Informed Consent Process.
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ACF calls for changes to current legislation that defines Indigenous decision-making rights regarding
their traditional lands, water or related resources to embed FPIC principles, including the Native Title
Act (1993) and the Aboriginal Land Rights (Northern Territory) Act (1976).
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In implementing this policy, it shall be read in a way that is consistent with all existing ACF policies
when doing business with Indigenous peoples. All future ACF policies will also need to make reference
to, and be implemented in conjunction with, this policy.
ADOPTED: C122:19.1 , B033:8.2 – July 2011
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