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 This is important because consent, once given, can be withdrawn if new information comes to hand or circumstances change.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.