Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.8: Importance of Free, Prior and Informed Consent
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The project has also presented an opportunity for Kimberley traditional
owners to negotiate access to traditional lands. Negotiations continued
in earnest over many months to secure an appropriate site to locate
the single precinct. Not only do traditional owners want to ensure their
cultural lands are protected with minimal damage to the environment,
but the project would potentially provide economic opportunities never
before seen in the region for local indigenous communities. The area
in question has significant cultural and environmental values; it is close
to a humpback whale nursery and is considered to be part of a pristine
environment that many Australians believe should be preserved.
Until September last year, and probably for the first time in the Western
Australian State Government’s history, Kimberley traditional owners were
negotiating under the true spirit of free, prior and informed consent—
including the right to veto any site that they deemed to be culturally
unacceptable. Much work had been done and four sites had been shortlisted
as potentially suitable, subject to social and environmental impact
assessments. And then, at the end of 2008, everything changed when
a new State Government came to power with different political views.
Embarrassed by the loss of a Japanese company to the Northern Territory,
which meant fewer royalties for the state, they immediately removed
the right to veto for indigenous peoples, announced a preferred site for
the precinct, and insisted that agreement be reached for that site by the
traditional owners by the end of March 2009, at the time within a three
month period.
This in itself was debilitating news, but there were also many debilitating
factors with such a short timeframe. It fell during cultural law time where
traditional owners have family and cultural obligations and it also fell over
the wettest period of the tropical rainy season, which makes it difficult
and sometimes even impossible for travel to consultation meetings from
remote areas. During this time, rains are so heavy that some indigenous
communities get cut off from the rest of the country with roads becoming
impassable.
The Kimberley Land Council is the indigenous native title representative
body that is tasked with navigating the diverse views within communities
and trying to reach an acceptable balance between traditional owners’
cultural values and the government’s demands. Wayne Bergmann, Chief
Executive Officer of the Land Council, was openly critical of the process:
“Almost all of the major communities in the Kimberley are among the
most disadvantaged quarter of all indigenous communities. This was