From Obligation to Opportunity: Achieving FPIC as a Driver of Indigenous Economic Development

In Australia, the momentum to expand the Indigenous economy has never been stronger. Recent Parliamentary Inquiries, such as the Inquiry into Economic Self-Determination and Opportunities by the Joint Standing Committee on Aboriginal and Torres Strait Islanders, have reignited attention on the entrenched structural barriers and systemic disadvantages faced by Indignenous peoples. ?

The Committee’s Report lays down 22 recommendations, one being that the Australian Government ratify the United Nations Declaration on Rights of Indigenous Peoples (UNDRIP), and explore opportunities for UNDRIP to guide commonwealth, state, and territory policy development. Aligning Australian policy with UNDRIP, while adhering to Free, Prior, and Informed Consent (FPIC) principles in genuine collaboration with Indigenous peoples, many view as a crucial step toward achieving economic prosperity.

But what exactly is FPIC, and why is it so vital for Indigenous economic prosperity?

This article explores the challenges and opportunities of embedding FPIC in Australia, offering practical insights based on my research and personal experiences.

What is FPIC?

FPIC is founded on the right to self-determination, as outlined in international instruments such as?the International Covenant on Civil and Political Rights,?the International Covenant on Economic, Social and Cultural Rights, and UNDRIP.

At its core, FPIC requires that Indigenous peoples give their consent before any activities take place on their lands. Under certain international laws, governments cannot implement policies or programs, or authorise companies to conduct activities on Indigenous lands, without first consulting with and obtaining consent from the affected communities. Indigenous Peoples also have the right to withdraw their consent at any time.

FPIC allows Indigenous communities to actively shape the terms of how projects are designed, implemented, monitored, and evaluated. It goes beyond compliance, embodying respect for self-determination and Indigenous cultural governance—traditional ways of knowing, being, and doing that have sustained these communities for generations.

For Indigenous peoples worldwide and at home, FPIC affirms their sovereignty over lands and waters, recognising their enduring role as custodians. Effective FPIC implementation means adapting its principles to respect each community’s unique cultural and governance practices, which are grounded in consensus, relationality, and intergenerational knowledge sharing.

The four principles of FPIC—Free, Prior, Informed, and Consent—each carry distinct obligations:

• Free: Consent must be voluntary, free from coercion.
• Prior: It must be secured before decisions are finalised.
• Informed: Accurate, transparent information must be provided.
• Consent: Must be obtained through culturally appropriate mechanisms that reflect the governance structures and priorities of the community.

While these principles form an international standard (as defined by UNDRIP Articles 10, 11, 19, 29, and 32), FPIC is not mandated by Australian law, creating a disjuncture between global standards and domestic practices.

Understanding Australia’s Indigenous Landscape

Australia’s Indigenous landscape is exceptionally diverse, with more than 500 distinct nations, over 250 languages, and 800 dialects. Each nation carries its own language, customs, governance, and kinship structures, reflecting a unique identity connected to their Country - from deserts to rivers, seas, and tropics.

Some nations have native title, while others are still fighting for it. Some are outspoken and assertive in their approaches, while others take a more reserved stance. Some mob are tall, while others are short, some have lighter skin, while others have darker skin. This diversity shapes the very fabric of Aboriginal and Torres Strait Islander society, with each nation having its own strengths, aspirations, priorities, and challenges etc. Such wide-ranging diversity highlights the complexity of applying a 'one-size-fits-all approach' to FPIC, emphasising the need for respectful, culturally tailored engagement that honours each nation’s distinct identity.

Understanding Indigenous Governance

Given the above, it’s essential to recognise that Aboriginal and Torres Strait Islander perspectives on life differ significantly from mainstream Western views. These perspectives are centred on the interconnected significance of family, land, lore, and language. Kinship systems bind families to specific lands, defining roles, responsibilities and obligations through traditional lore, which is expressed in ceremonies and other cultural practices. Together, these elements form a way of life that is distinctly 'Indigenous'.

As a result, Aboriginal and Torres Strait Islander governance is inherently different—holistic and deeply rooted in custom, knowledge, and lore. These practices reflect unique ways of knowing, being, and doing, which differ from Western governance models such as the Westminster system. Generally, decision-making in Aboriginal and Torres Strait Islander communities evolves through dialogue across clan groups, kinship lines, and family networks, with consensus being the preferred approach.

A contemporary example of Aboriginal and Torres Strait Islander governance can be seen in Registered Native Title Bodies Corporate (RNTBC) or in other words Prescribed Body Corporates (PBC's), which manage native title rights and interests on behalf of Traditional Owners. PBCs must navigate the requirements of the?Native Title Act 1993?and?the Corporations (Aboriginal and Torres Strait Islander) Act 2006?while respecting the cultural practices of their communities. This legal process aims to balance Western law with cultural lore and custom, often involving Elders, custodians, and those with cultural authority, making “consent” a relational, rather than a transactional process.

?So why is this important to achieving FPIC?

Why This Matters for Achieving FPIC

Securing broad community consent within Aboriginal and Torres Strait Islander governance structures requires a nuanced approach, extensive consultation, and cultural sensitivity. This differs greatly from majority-driven decision-making in Western systems, where a ‘simple’ vote may be sufficient. For Aboriginal and Torres Strait Islander peoples, genuine FPIC must address the lived realities of those who, in many cases, live away from their Country due to work, education, or health needs. Achieving true consent requires thorough, culturally aware consultation that cannot be rushed by external pressures or timelines.

The recent ruling in Santos NA Barossa Pty Ltd v Tipakalippa serves as a critical reminder of the importance of meaningful consultation. The Federal Court emphasised that “superficial or token” engagement is insufficient. For developers, this decision highlights the significant risks associated with tokenistic practices, including potential legal challenges, project delays, reputational damage, and the loss of social licence to operate (SLO).

Why FPIC Matters for Economic Growth

As corporate engagement strategies, action plans, project planning, and development investments increasingly embrace FPIC, it’s clear that FPIC is more than just a compliance tool for safeguarding cultural heritage - it’s a powerful catalyst for economic opportunity. Indigenous businesses, thriving in sectors such as clean energy, tourism, and bush foods, are key drivers of innovation and employment.

By investing in Indigenous-led projects, supported by funding mechanisms like the Clean Energy Finance Corporation or the National Reconstruction Fund, Indigenous communities can become both co-designers and beneficiaries of national economic growth. These investments help build capacity, create jobs, and strengthen governance while aligning economic development with cultural preservation.

For instance, as Australia transitions to a clean energy economy, Indigenous peoples must be positioned as leaders and partners. Modelling by Net Zero Australia projects that 45% of clean energy infrastructure will need to be developed on land where Indigenous peoples hold legally enforceable rights. Early engagement, grounded in FPIC, will be essential to ensuring that large-scale projects are developed ethically, sustainably, and with the full participation of Aboriginal and Torres Strait Islander communities.

The Risks for Businesses: Disregarding FPIC

Ignoring FPIC is an increasingly costly risk for businesses. Research from the University of Queensland (UQ), the Harvard Kennedy School and Clark University found that conflict caused delays that can add costs of about US$20 million per week for mining projects valued between US$3 billion and US$5 billion. Failing to incorporate FPIC into decision-making opens the door to legal challenges, project delays, and reputational damage. In contrast, adopting FPIC fosters trust, enhances reputation, and promotes sustainable, long-term partnerships.

A tragic example of the consequences of disregarding FPIC is Rio Tinto’s destruction of Juukan Gorge in 2020. With deep respect to the Puutu Kunti Kurrama and Pinikura people, this devastating loss highlighted the severe consequences of ignoring community voices. The failure to engage meaningfully resulted in irreversible cultural damage and lasting reputational harm. A Parliamentary inquiry into the incident revealed the catastrophic effects of neglecting FPIC and underscored the urgent need for respectful, ongoing relationships between Aboriginal and Torres Strait Islander communities and broader society.

A Path Forward: Legislative Reform

The Juukan Gorge tragedy and the Federal Court’s ruling in Santos highlight the growing need for legal reform that embeds FPIC principles to safeguard culture while enabling sustainable economic growth. Australia's ongoing efforts to co-design these reforms within the framework of the UNDRIP signal meaningful progress. However, achieving this balance requires addressing complex challenges.

During the Senate Inquiry on the Application of UNDRIP, Aboriginal leaders alongside organisations such as the Law Council of Australia and the Lowitja Institute emphasised the importance of enshrining FPIC in legislation to secure Indigenous rights to self-determination, cultural preservation, and participation in development decision-making. Such reforms must not only protect Indigenous sovereignty but also drive inclusive, social and emotional well-being and economic and ethical development.

Global Benchmarks for FPIC: Lessons from Canada and Latin America

International examples provide clear pathways for embedding FPIC into national frameworks.

Canada: Impact and Benefit Agreements (IBAs) set a robust precedent for integrating Indigenous consultation into resource development. Additionally, landmark rulings like Tsilhqot’in Nation v. British Columbia affirm the state’s obligation to secure consent before initiating major projects. Canada’s legislative commitment to UNDRIP has further strengthened Indigenous governance, creating a national action plan and consultative working groups to drive policy reforms and economic outcomes.

Latin America: Colombia’s Constitutional Court requires mandatory Indigenous consultation for significant projects, demonstrating how legislative mandates can uphold Indigenous rights while facilitating development.

Australia can draw inspiration from these approaches to strengthen its FPIC framework. By embedding UNDRIP principles into law, Australia has an opportunity to balance cultural heritage preservation with economic progress, ensuring development is both ethical and mutually beneficial.

Opportunities for Implementing FPIC in Australia

Drawing from international models, the research and my experiences, the following opportunities can help embed FPIC in Australia’s legislative and operational frameworks to drive economic outcomes:

1. Legislative Reform for FPIC

• Establish FPIC through legislation to set clear obligations for engagement and ensure recognition of Aboriginal and Torres Strait Islander governance.
• Consider creating a sui generis law inspired by Canada’s UNDRIP implementation, tailored to Australia's unique context.

2. Industry-Government Partnerships

• Develop co-designed projects that incorporate culturally appropriate consultation frameworks aligned with Aboriginal and Torres Strait Islander governance structures, such as through the National Closing the Gap policies.
• Adopt models akin to Canada’s IBAs to formalise collaboration between industries, governments, and Indigenous communities.

3. Investment in Aboriginal-Led Economic Infrastructure

• Prioritise support for Aboriginal-led initiatives, such as renewable energy projects on Country, to foster self-sustaining economic pathways.
• Recognise and integrate the rights, interests, and cultural governance of Indigenous communities into project designs and investments.

4. FPIC Training for Industry Leaders

• Provide comprehensive cultural competency training on FPIC principles for corporate and government leaders.
• Equip industry stakeholders with the tools to engage respectfully, reducing conflict and building trust-based, long-term partnerships.

A Shared Future

In closing, recognising FPIC is more than a legal obligation—it is a transformative opportunity to foster meaningful partnerships, drive economic development, and uphold cultural integrity. For Aboriginal and Torres Strait Islander communities, FPIC is not just a principle; it is a cornerstone of self-determination and a pathway to equity and empowerment.

Australia stands at a pivotal moment to embed FPIC within its legal and economic frameworks, setting the stage for a legacy built on trust, mutual respect, and shared stewardship with its First Peoples. By embracing FPIC, Australia can create a future that values Indigenous contributions as essential to the nation’s growth—a future that is inclusive, equitable, and sustainable for all.

Delahay Miller

28 November 2024