Constructing a contextual model of indigenous participation in decision-making: a comparative analysis

Abstract

Indigenous peoples have long argued that states must obtain their free, prior and informed consent (‘FPIC’) in order to undertake resource development within their territories. They have sought international recognition of this principle in order to protect their territories and to exercise their inherent authority over them. However, many states have opposed this principle and its status remains controversial. In Saramaka v Suriname, the Inter-American Court of Human Rights (‘the Court’) injected a new perspective into this debate. Under the Court’s contextual model of ‘effective participation’, states must always consult Indigenous peoples regarding development projects within their territories. In addition, an obligation to obtain FPIC arises in relation to high impact development activities. The state’s obligations are therefore linked to the act’s potential impact. The Saramaka model has influenced international understandings of Indigenous peoples’ right to participate in decision-making. Nevertheless, significant gaps and tensions exist within this model. It is therefore unclear whether the model is capable of addressing the concerns that have inspired Indigenous peoples to seek recognition of the FPIC principle. This thesis examines two important unresolved issues. The first concerns the question of who is responsible for devising a consultation procedure. The second is whether the presence of pre-existing impact affects the application of the FPIC trigger test. Each issue can have a profound effect on the operation of the Saramaka model. To explore potential future directions for the Saramaka model, this thesis undertakes a comparative study of how these issues are addressed in Canada and Australia. Both the Canadian duty to consult doctrine and the Australian right to negotiate regime employ similar contextual devices to determine the extent of a non-Indigenous government’s obligations. The thesis finds that these jurisdictions contain beneficial features, which the Court can build upon. However, in relation to the two identified issues, both jurisdictions have adopted positions that potentially privilege non-Indigenous interests. The thesis proposes steps that the Court should take to avoid reproducing these problems within its model, with the objective of supporting Indigenous peoples to protect their territories and exercise their authority as far as possible within a contextual framework.