Early engagement enabling Free, Prior and Informed Consent (FPIC) is central to proposed clean energy projects in Australia.
Early engagement proactively exercises First Nations rights and responsibilities and protects community interests. It can mean the difference between project sustainability and unnecessary risk, cost and delay.
First Nations expect early engagement prior to a project being developed. In many cases there may also be a legal requirement to engage.
Early engagement leading to Free Prior and Informed Consent (FPIC) is getting to know and understand First Nations people likely to be impacted by a proposed clean energy project at a time and place of their choosing, from conception through to site selection, and ongoing throughout the project’s life-cycle. Developers and investors must aim to ensure future owners also adhere to this principle.
Proponents must seek to understand the culture, history, challenges and aspirations of the First Nations groups that the proponent is going to working with. This will assist in co-designing strategies and projects – such as equity shares or community benefit funds – that will come out of the project and lead to greater impact as it will respond to what the community wants and needs.
Early engagement is all parties understanding where each other are coming from, setting expectations, looking for ways the community can capitalise on the opportunities, agreeing on communication protocols, and setting out steps for a successful relationship and project. Transparent information must be shared in a manner accessible to all parties including information about the companies involved, the proposed project, the risk to Country and families, and other relevant materials.
Many First Nations groups have pre-designed their own protocols for engagement with clear expectations built in. For example:
| Gunaikurnai Land and Waters Aboriginal Corporation (GLaWAC) have produced a guide to assist developers to negotiate major projects with GLaWAC, with an expectation that all industries and governments involved in major project development on their country will be forming agreements with GLaWAC in line with international best practice. |
|
Nari Nari Tribal Council are only looking to work with proponents that are prepared to:
|
| The Yindjibarndi people believe in the principles set out in the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), including the right to own, control and develop their Ngurra (country). |
|
Balanggarra’s vision includes:
|
Putting in place mechanisms to build respectful relationships must be prioritised from the very start of scoping a project and patiently developed as projects progress.
That includes enacting the principle of ‘proponent pays’ – proponents should put money on the table up front if they want engagement, including for Prescribed Body Corporate (PBC) fees and regulations.
A strong relationship helps with planning, design and construction, and it also plays a big role in the long-term success and sustainability of the project.
Establishing equitable relationships with impacted and neighbouring First Nations communities is also a good idea for building trust, and employment and procurement opportunities.
Aligned with First Nations Peoples universal right to self-determination, Free, Prior and Informed Consent (FPIC) is a right recognised under international law and expected under most international standards but only partially implemented in Australian domestic law.
The standard of FPIC set by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is expected when engaging on projects which impact on the rights and lands of First Nations peoples, where:
FREE means that a community/group must be able to give consent voluntarily and without coercion, intimidation or manipulation.
PRIOR means the free consent of First Nations people is obtained before an action impacting a group and lands is taken, and the time needed for First Nations consultation / consensus processes has been respected.
For consent to be INFORMED, it must be based on accurate, timely, accessible and sufficient information.
CONSENT of First Nations people should be determined in accordance with a group’s customary laws and practices, through procedures and representative institutions determined by First Nations peoples.
FPIC enables First Nations to engage in negotiations to shape the design, implementation, monitoring, operation, and evaluation of projects. This should include access to reports, and information such as social risk and impact assessments, environmental assessments, social investment, and complaints and grievance management, to enable First Nations people to participate in the decision-making process throughout the life of a project.
Engagement initiatives such as enabling and incorporating Traditional Owner aspirations, control, participation, inclusion, and a boardroom role in decision-making – and co-designing realistic and equitable agreements for sharing the economic benefits derived from a proposed project, may further enable FPIC.
Genuine engagement enabling FPIC is a booster for the reputation of a business and the broader social licence to operate, globally. It’s a pathway to shared value and project certainty.
Significant investor groups recognise the financial advantages of prioritising First Nations peoples rights and enabling FPIC. BlackRock, the world’s largest asset manager, in its investment stewardship guidelines (2023) recognised that companies’ failure to obtain and maintain FPIC from impacted Indigenous peoples can lead to increased financial – legal, reputational or regulatory – risk.
And various investor frameworks and international standards and rights require proponents to manage the impact of their business on First Nations, enabling the FPIC of project-affected communities, leading to equitable benefit sharing, project co-development and co-ownership, and First Nations-led decision making.
|
Free, Prior and Informed Consent is:
|
|
Free, Prior and Informed Consent is not:
|
Source: Dhawura Ngilan (Remembering Country): A Vision for Aboriginal and Torres Strait Islander Heritage – a First Nations-led guide for businesses and investors developed by the First Nations Heritage Protection Alliance. It is designed to support businesses and investors to protect First Nations cultural heritage. Enabling Free, Prior and Informed Consent (FPIC) is integral to that journey.
The rights and interests of native title holders are protected under the Native Title Act 1993 (Cth).
Proponents seeking access to land or waters covered by native title rights and interests must consult and negotiate with impacted native title claimants or holders. That may include consultation prior to the valid grant of certain interests in land (for instance, grants of tenure for projects).
The only approval pathway in the Native Title Act for clean energy developments is by using an Indigenous Land Use Agreement (ILUA).
First Nations may negotiate an ILUA with proponents which typically grants access to land or sea in exchange for agreed compensation and other commercial or shared benefits. ILUAs are voluntary.
Whilst Native Title enacts ILUA, proponents should still make agreements with Traditional Owners.
Clean energy projects should proceed only with the Free, Prior and Informed Consent (FPIC) of relevant Traditional Owners. Where native title is relevant FPIC requires an Indigenous Land Use Agreement (ILUA).
Notwithstanding Australia’s legal and regulatory framework for negotiating access to First Nations country, projects will only succeed if they engage with FPIC and go beyond their legal obligations.
Project proponents must guarantee and ensure First Nations communities are genuinely informed and real consent is obtained throughout all stages of the project.
The first step is identifying the First Nations group to engage, who has cultural authority, as well as which individuals to speak to.
The next key challenge is turning FPIC as a theory into practice. A good starting point is understanding what FPIC means for Traditional Owners relevant to a project or area. That includes the broader aspirations of the Traditional Owner group(s) impacted.
FPIC is more than securing an agreement with Traditional Owners at the start of a project. It’s about developing an ongoing process for agreement making to enable mutually agreeable solutions throughout the life of a project. This is important because consent, once given, can be withdrawn if new information comes to hand or circumstances change.
Independent, expert advice is critical to enabling FPIC. Any third party approaching a First Nations group with a proposal to undertake activities on Country must be prepared to fund the provision of independent legal and other expert advice to ensure the First Nations group and the people it represents can properly participate in the initial and ongoing engagement process. Funding independent experts builds First Nations capacity, facilitates effective negotiations, builds trust, and ultimately forges strong partnerships.
Ensuring FPIC with impacted First Nations can provide much needed certainty for all, increasing project viability. Failure to obtain FPIC may result in operational and reputational risks, and more often legal risk, which could lead to delays.
Industry is fast learning that Traditional Owner consent can result in regulatory and financial approvals being obtained much faster, helping to de-risk projects.
Development without Free, Prior and Informed Consent (FPIC) may cause unnecessary risk, costs and delay. It may also lead to litigation. See, for example, the University of Melbourne’s Australian and Pacific Climate Change Litigation database.
It is critical that proponents engage early enabling FPIC.
If consent is not forthcoming, look to understand the objections of the impacted First Nations group and revisit the First Nations Clean Energy Network’s Best Practice Principles, and also the Clean Energy Council’s Leading Practice Principles, to understand what can and should be done differently.
Proponents should also consider the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples, including in particular the principle of FPIC.
Ultimately, regulators and the legal system can be the legal arbitrator and judicators but these process can be considerably more costly and time consuming than a negotiated agreement.
There are various international standards and frameworks requiring proponents to enable the Free Prior and Informed Consent (FPIC) of project-affected communities.
United Nations Declaration on the Rights of Indigenous Peoples
UNDRIP is increasingly treated as a mandatory minimum standard, provides that states shall consult and cooperate with Indigenous peoples “to obtain their free, prior and informed consent” before adopting measures that may affect them, including those related to land or natural resources.
International Convention on the Elimination of All Forms of Racial Discrimination
Promotes and encourages universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.
Universal Declaration of Human Rights
Articulates the civil and political rights and fundamental freedoms to which every human being is equally and inalienably entitled.
United Nations Guiding Principles on Business and Human Rights
A set of guidelines for States and companies to prevent, address and remedy human rights abuses committed in business operations.
International Finance Corporation Sustainability Framework, Performance Standard 7: Indigenous Peoples
Recognises proponents/companies can create opportunities for First Nations people to participate in, and benefit from project-related activities, and that First Nations can play a role in managing activities and enterprises as partners in development, meeting First Nations aspiration for economic and social development.
International Covenant on Civil and Political Rights
Recognises the inherent dignity and equal and inalienable rights of all humans, including all people’s right to self-determination, and the right to determine their civil and political rights and freely pursue their economic, social and cultural development.
International Covenant on Economic, Social and Cultural Rights
Articulates the States, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right.
International Labour Organisation -- Indigenous and Tribal Peoples Convention (ILO 169)
Articulates First Nations people concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
International Labour Organisation - Declaration on Fundamental Principles and Rights at Work
Supports the rights to a safe and healthy working environment grounded on the values and principles of social justice, and empowers representative organisations to tackle challenges to freedom, dignity, rights and health in their everyday life, including via negotiation with partners.
OECD Guidelines for Multinational Enterprises on Responsible Business Conduct
Recognises enterprises impact on the entire spectrum of human rights, and provides recommendations for responsible business conduct re climate change, biodiversity, technology, business integrity and supply chain due diligence, among other areas, and avoid causing or contributing to adverse human rights impacts through their own activities and address such impacts when they occur to make positive economic, environmental and social progress.
OECD Due Diligence Guidance for Responsible Business Conduct
Recognises that business activities can result in adverse impacts related to workers, human rights, the environment, bribery, consumers and corporate governance, and so provides guidance for understanding and implementing due diligence for responsible business conduct.
OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector
Provides practical guidance to extractive companies related to stakeholder engagement, recognising companies can contribute to positive social and economic development when they involve local communities in their planning and decision making.
The Best Practice Principles for Clean Energy Projects, developed by the First Nations Clean Energy Network, offer a bold, actionable framework for governments, industry, and investors who want to lead—not lag—on equity, sustainability, and project certainty.
These ten principles are a strategic roadmap. They guide proponents to engage respectfully, secure Free, Prior and Informed Consent (FPIC), protect cultural heritage, embed land stewardship, and ensure economic and social benefits flow to First Nations communities. They reflect global human rights standards, including the UN Declaration on the Rights of Indigenous Peoples, and elevate what responsible development looks like in the clean energy era.
Proponents wanting to be recognised as industry leaders and setting the benchmark for responsible development must commit to undertaking their projects in line with the Best Practice Principles — from the earliest stages of planning through to decommissioning.
Regardless of the minimum legal requirements, proponents must adopt these principles early to gain trust, de-risk approvals, attract premium investment, and unlock faster project timelines. And investors demanding them will help ensure long-term viability and social licence.
These principles are the foundation for doing business with First Nations on Country—and doing it well.
Find these guides and more in our Toolkit to assist your clean energy journey.
The Clean Energy Council and KPMG worked with the First Nations Clean Energy Network to operationalise the Network’s ‘Best Practice Principles’.
The subsequent Leading Practice Principles sets expectations for meaningful engagement and partnering with First Nations, detailing key considerations for engagement at each stage of a project’s life cycle including how to exercise meaningful engagement, consent, participation and benefit-sharing with First Nations people.
The First Nations Clean Energy Network’s Best Practice Principles have also have made their way into industry practice and reporting frameworks.
The Clean Energy Council’s Best Practice Charter for Renewable Energy Projects is a voluntary set of commitments for the clean energy industry. It outlines the standards that signatories need to uphold in the development of current and new clean energy projects. That includes engaging respectfully with the communities in which proponents plan and operate projects, including with the Traditional Owners, to seek their views and input before submitting a development application and finalising the design of the project.
It further includes offering communities the opportunity to share in the benefits of the project, consulting them on the options available including relevant governance arrangements, and providing local employment and procurement opportunities, to make a positive contribution to the regions in which they operate.
