where the legislative processes do not provide a sustainable or real FPIC.
Any further mining beyond 2021 on the Ranger Project Area will require new legislation as the
current provisions do not extend beyond that date. Whilst both the Mirarr and ERA have committed
to FPIC before further mining is approved, it remains to be seen if the government will incorporate
this into any new legislation.
Commentary and observations:
The Jabiluka story is of interest to many indigenous communities as it represents a case where a
company has formally and publically agreed to a binding consent requirement in a context where
the company already holds a mining lease that was granted pursuant to national pro-indigenous
legislation in which consent was a condition of approval. Furthermore, this has occurred in a first
world (albeit pro-mining) economy with a strong commitment to the rule of law. The lessons from
the Jabiluka case are several fold. Firstly, legislation alone, no matter how clear it is, does not
ensure real FPIC if government is able to exert pro-mining pressure on the agencies involved in the
process of obtaining consent. Secondly, the role of a well-resourced representative organisation that
is accountable to the Traditional Owners at the level at which decisions are made is critical to the
integrity of the process. The 2005 agreement that ensured FPIC in relation to future developments
at Jabiluka and the 2013 agreement to update the Ranger arrangements were both negotiated by
GAC which has no statutory role under the legislation, but which is accountable solely to the Mirarr
Traditional Owners. Finally, a well-resourced representative organisation and a mining company,
with a declared commitment to seeking Traditional Owner consent, are able to forge an agreement
ensuring future FPIC despite the legislative context.
In relation to Jabiluka, the conundrum for both the Mirarr and for ERA is that the lease was granted
pursuant to a process which does not reflect Traditional Owner support. That process ironically
ostensibly did formally provide for a form of consent. ERA has now acknowledged both a commitment
to honouring FPIC - despite holding the lease-and that there is no consent to development of
the project. The Mirarr perspective is that the existence of the lease represents the failure of the
government and the legislation.
The case does illustrate the potential for a contractually binding consent requirement to be achieved
outside of the legislation. It highlights the role of sustained indigenous resistance in achieving this
and also reflects a corporate acknowledgement that the consent requirement is a means to resolve
such protracted disputes. It also demonstrates that any consent obtained, even through official
processes, has to be sustainable. For this to be the case it must be genuine and freely given, and
reflect the position of the impacted communities and land owners.
Other interesting aspects of the case are that it challenges corporate conceptions of traditional
authorities and custom as being exclusively male dominated arenas within which women are
excluded from major decision-making processes. It also demonstrates the potential role that common
cause between aboriginal peoples and the wider general public can play in realizing the consent
requirement.
Making Free, Prior and Informed Consent a Reality
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