explore or exploit the resources.
One of the approaches proposed to the Traditional Owners by the Land Council to secure areas of
cultural significance from mining in the future, is to involve elders in pre-identification of these areas,
and enter into agreements with the mining companies that they will forever be off-limits to mining.
In exchange Traditional Owners would consent to allow companies to access to conduct ‘pick and
shovel exploration’. In the initial leases issued on the island no account was taken of culturally
significant areas. As a result it is in mining companies’ interest to ‘walk the land’ prior to mining areas
within its lease, as to do otherwise would damage its relationship with the traditional owners and
jeopardize any future attempts to explore and mine areas outside of the lease.
Observations
The operation of the veto provision under the Aboriginal Land Rights Act in Groote Eylandt provides
an example of a functioning model of FPIC which protects the rights of the traditional land owners,
while also providing sufficient certainty to the mining company to enable it to plan for the future. The
fact that the veto power only applies prior to the approval of a lease, but not before exploitation, is
not regarded as a major obstacle to the provision of informed consent, because the communities
have a history of exposure to mining, and already have an understanding of what the new projects
will entail. However, the Land Council representative considered that it would be an enormous
undertaking to operationalize this consent provision in a context where the communities do not
have a prior exposure to mining. This would necessitate a mobile team which could provide expert
independent advice to communities, in addition to facilitating field trips to comparable mine sites.
The role of the Land Council as a buffer between communities and companies, while it has its
limitations, nevertheless serves to address some major issues in the operationalization of consent.
From the community’s perspective it prevents unscrupulous companies from attempting to divide
them or promote non-representative leaders. It also ensures that the moratoriums are respected.
From a company perspective it addresses the potential problems in identifying who the legitimate
community representatives are, as the Land Council relays who the traditional owners are and
communicates their decisions to the companies.
The critique that the Land Council represents a paternal model and is outdated has been raised.
Mining companies have stated a preference to be able to establish direct relations with traditional
owners and negotiate directly with them, leading to improved outcomes for all parties. It was noted
by the Land Council representative that this critique of the Land Councils is generally one that is put
forward by mining companies and not traditional owners themselves. How transferable this type of
ALRA model would be to other jurisdictions is an open question. Among the challenges would be the
need to cater to the particular customary tenure arrangements of each indigenous people. In addition
the model relies on a certain degree of mining proceeding in order to fund the role of the Land
Councils, and is contingent on the Land Council representatives providing adequate information
to the communities and not attempting to distort the process. In a relatively small territory such as
Groote Eylandt, which has its own dedicated Land Council, any failure to act in accordance with the
communities’ wishes would quickly be exposed. However, in other jurisdictions such accountability
may prove to be a greater challenge.
The ALRA includes an option for the national governments to overwrite an aboriginal veto in the
national interest. This has never been exercised. The widespread availability of manganese, and
the difficulty in justifying a single mine as necessary to realize the national interest, suggests that an
aboriginal people’s decision to veto a mine here is unlikely ever to be overridden. This conservative
interpretation of the national interest contrasts with the relative frequency with which mining project
in indigenous peoples territories in other jurisdictions tend to be justified by government agencies,
or national courts, on the basis of a vague and undefined public interest. As a result the enabling
conditions which facilitate the meaningful implementation of the consent provision under the ALRA
may be difficult to replicate in contexts where rights are readily subordinated to economic interests,
and accountability of bodies with control and decision-making powers over extractive projects is a
major challenges due to widespread corruption.
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Making Free, Prior and Informed Consent a Reality