Free, Prior, and Informed Consent in Indigenous Rights: the Juukan Gorge Debacle

Abstract

The Juukan Gorge case study is perhaps the most relevant contemporary example of how what seems right as far as accessing indigenous lands can easily turn out to be wrong. It highlights the complexity of regulatory processes and how formal processes interact, or fail to interact, with indigenous customary processes. This article reflects on the way in which approvals processes affecting the customary lands of Indigenous People may become convoluted and complex due to multiple levels of authorities being responsible to consider proposals. When indigenous, public, and private interests intersect the ideal of a consent outcome is not always possible. The reality is that public interest in economic development is often in direct conflict with protection of an indigenous site. As is show in the article, FPIC reflects the assumption, demand and aspiration of Indigenous People to be consulted about what happens on their traditional lands. FPIC as it appears in UNDRIP is often presented, erroneously, as giving to Indigenous People the final control over what happens on their ancestral lands. Whilst FPIC strives towards reaching consensus, FPIC does not mandate consensus. This article uses the Juukan Gorge debacle to draw lessons and insights from the complexity and uncertainty of regulatory approval processes on the lands of Indigenous People. The risks to Indigenous People and developers are palatable with Indigenous People fearing their rights may be encroached, whilst developers being concerned that the approvals they receive from the state may be challenged by Indigenous People.