THE FPIC FIXATION: INDIGENOUS - MINING LAW, INTERNATIONALLY AND AUSTRALIA

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (Apr 2019)
CHAPTER 22A
THE FPIC FIXATION: INDIGENOUS - MINING LAW, INTERNATIONALLY AND AUSTRALIA ¹
John Southalan
University of Western Australia
Resources Law Network
Perth

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JOHN SOUTHALAN is a Barrister (Western Australian Bar Association) and adjunct academic (Centre for Energy, Petroleum and Mineral Law and Policy at Dundee University, and Centre for Mining, Energy and Natural Resources Law at University of Western Australia). John advises and represents clients regarding resources issues in both litigious and non-litigious matters. He researches and teaches in mining regulation and also on human rights and resources. He has published and presented on topics including human rights and business, climate change, Indigenous rights, minerals taxation, and mining agreements. John is a contributing author for LexisNexis Native Title Service, providing quarterly updates on Australian law regarding compensation, agreements, and Indigenous corporations.

JOHN SOUTHALAN is a barrister (Western Australian Bar Association) and adjunct academic at the Universities of Dundee (Centre for Energy, Petroleum and Mineral Law and Policy), Western Australia (Law School) and Murdoch University. He assists clients in both litigious and non-litigious matters, including resources regulation in advising regulators, mining companies, land owners, communities and non-government organisations. John researches and teaches in mining regulation and also on human rights and resources; and has published and presented on human rights and business, mining regulation, climate change, Indigenous rights, minerals taxation, CSR regulation, and mining agreements. He undertakes extensive volunteer work including for NGOs in Myanmar, Thailand and Australia; and as a committee member of the Business and Human Rights Committee ( Law Council of Australia) and the Indigenous Issues Committee ( Australian Bar Association). John previously worked with the Yamatji Marlpa Aboriginal Land Council (Pilbara & Perth, Australia), Centre for Energy, Petroleum and Mineral Law and Policy (Dundee, Scotland), Human Rights and Equal Opportunity Commission (Sydney, Australia) and Corrs Chambers Westgarth (Perth, Australia).

''No aspect of the [UN] declaration [on the on the Rights of Indigenous Peoples] has received more attention than the concept of "free, prior, and informed consent" (FPIC) and its implications for resource development'²

I. Introduction

Free prior informed consent is frequently cited as a legal standard for the development of extractives projects which impact Indigenous groups,³ particularly in Latin America⁴ (through ILO Convention 169 and the Inter-American human rights regime). The basic concept is that mining impacts should not occur without the group's FPIC, but that simplicity hides domestic complexity, as noted in a recent article:

At the international level the concept of FPIC is deceptively simple, largely because implementation is not a primary consideration at that international level. The complexities arise at the domestic level with the practicalities of granting development rights, impacts on Indigenous groups, disputes about tensions between these two, and domestic courts having to adjudicate when such disputes cannot be resolved. ⁵

This paper outlines the current state of FPIC at the international level, examines some common difficulties, and then describes Australian domestic law regarding these issues.

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II. International standards

There is a scary, and increasing, amount of material written on indigenous rights and FPIC - in the just the last twelve months there have been several UN and inter-governmental reports, a PhD thesis, numerous government submissions, and over 15 peer-reviewed journal articles.⁶ Unsurprisingly, FPIC can be understood and characterised in various ways (eg. Indigenous-state geo-politics, cultural, political science). However, in terms of international human rights standards, FPIC's origins can be traced to earlier concepts of effective participation and informed consent (to decisions impacting minority rights and interests) as a protection of cultural rights and non-discriminatory treatment of property and related rights.⁷ More recently, FPIC is emphasised as fundamentally about self-determination.⁸

International legal standards requiring some form of FPIC include the International Labour Organisation's Convention 169⁹ (and, given 15 of the 23 parties to that treaty are Latin American countries, this region sees the most implications from C169¹⁰ ), and through the global treaty on biological diversity.¹¹ Notions of FPIC also feature in regional human rights structures¹² and inter-governmental arrangements.¹³ Interestingly, while various European materials/officials refer to FPIC as an important concept,¹⁴ FPIC does not seem to feature in any regional European treaty nor does it appear in any decision of the European Court of Human Rights.¹⁵ In contrast, the Inter-American human rights system has developed considerable law on FPIC.¹⁶ While its foundational documents (the 1948 declaration and 1969 convention¹⁷ ) do not mention indigenous people nor FPIC, the Inter-American Commission and Court have issued various decisions and materials developing FPIC, as part of rights to life, personal integrity, and (most significantly) the right to property under Convention article 21.¹⁸ In 2016, the Organization of American States adopted the American Declaration on the Rights of Indigenous Peoples.¹⁹ It is perhaps too early to determine its legal effect within countries, but commentary suggests the Declaration has lesser FPIC requirements than existing jurisprudence of the Inter-American Court.²⁰

Through these various fora, some industrial developments have been found to have occurred without the FPIC of the affected communities.²¹ In other cases, the international mechanisms have adjudged FPIC as present (or not required), thereby indicating the relevant development as not breaching Indigenous peoples' rights.²² Clearly, lawyers working in this area (whether for companies, Indigenous groups, or government) need familiarity with the standards and mechanisms of FPIC.

The most comprehensive, international, statement of indigenous FPIC and land-use²³ is found in the 2007 UN Declaration on the Rights of Indigenous Peoples²⁴ (UNDRIP). Being a declaration and not a treaty, UNDRIP is not binding of itself,²⁵ but it is increasingly cited by human rights bodies in their decisions and observations of what is required under their treaties.²⁶ FPIC is found in six articles of UNDRIP: relocation, cultural property, regulatory measures, land & territories, environment and development & use of land/territories.²⁷ In relation to mining developments, UNDRIP's article 32 provides the greatest detail of what is envisaged by FPIC.`

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UNDRIP, Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

There are various complexities and conundrums presented by these three sentences, which are examined further below.

(a) Group -v- individual

UNDRIP differentiates between the rights of 'individuals' and 'indigenous peoples'.²⁸ All the FPIC rights in UNDRIP are of 'indigenous peoples', meaning an indigenous group;²⁹ and UNDRIP prioritises the group's control regarding the responsibilities and roles of its individuals.

Art 9. ...[I]ndividuals have the right to belong to an Indigenous community...in accordance with the traditions and customs of the community.

Art 35. Indigenous peoples have the right to determine the responsibilities of individuals to their communities.

Difficulties here are obvious. Any group of humans, in discussing and determining how to best approach a subject, will have differences between them. Even after some general acceptance within the group on how to proceed, differences may remain between individuals. This is so wherever humans need to interact - whether a company, university department, government agency, or an indigenous group. As FPIC is a group right - being the consent of the group - what is the significance if individuals within the group do not agree?

International law is clear that a group's decisions/practices cannot justify the violation of an individual's human rights. This has been repeatedly confirmed, particularly regarding women and girls, around issues such as education, property and personal security.³⁰ However, the human right to culture is not an individual right in the same sense (eg. my body, education, property etc), rather it is the culture as part of the group.³¹ So, an individual cannot invoke 'cultural' rights as individual rights which are inconsistent with the group from which they derive. The Human Rights Committee (which monitors implementation of the treaty on civil and political rights including its right to enjoyment of group culture) has rejected complaints from individuals asserting a breach of their cultural rights, where the broader group had agreed to the relevant actions. These involve cases about controls affecting reindeer herding in Finland and Sweden,³² and fishing and sea rights in New Zealand.³³ In the latter...