Part I: The Legal Landscape of FPIC
At the heart of Indigenous rights in the face of development lies the principle of Free, Prior, and Informed Consent (FPIC). Codified in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), FPIC is more than a moral guideline, but is a legal standard aimed at protecting Indigenous sovereignty, cultures, and lands. Under Articles 10, 19, and 32 of UNDRIP, Indigenous peoples have the right to refuse forced relocation (Art. 10), to be consulted in good faith before legislative or administrative measures are adopted (Art. 19), and to give or withhold consent before any project affecting their territories is approved (Art. 32).
In theory, FPIC ensures that Indigenous communities are not simply informed of development decisions, however must be actively and meaningfully involved with the power to say no. In practice, however, it is a different story. The enforcement of FPIC varies widely which in turn exposes a clear divide between international commitments and domestic implementation.
Australia, which endorsed UNDRIP in 2009, has yet to integrate its principles into domestic law. While various reforms and Indigenous voices have pushed for stronger rights protections, FPIC remains largely symbolic and merely referenced in policy, but not enshrined in enforceable legal frameworks. Across the world in South America, the picture is mixed. Countries like Bolivia and Ecuador have embedded FPIC into their constitutions, recognizing the plurinational character of the state. However, enforcement mechanisms are often weak or subject to political manipulation. In many cases, extractive projects proceed without any meaningful consultation, completely undermining the spirit of FPIC despite its formal recognition by governments. Across these regions, the pattern is quite clear; while UNDRIP provides a powerful international legal foundation, domestic laws often fall short, whether through vague language, lack of enforcement, or outright resistance. This implementation gap leaves Indigenous communities vulnerable as climate-driven development intensifies pressure on ancestral lands.
Part II: Australia: Gomeroi v. Santos
Australia’s legal framework highlights the central tension between consultation and consent, a distinction that lies at the heart of FPIC. While the country officially endorsed UNDRIP in 2009, it has never incorporated the declaration into domestic law. As a result, FPIC remains non-binding, and Indigenous communities lack legal mechanisms to enforce their right to say no to development on their lands.
This tension came into sharp focus in the case of Gomeroi v. Santos, a legal battle over the controversial Narrabri Gas Project in northern New South Wales. The Gomeroi people opposed the proposed coal seam gas extraction on their ancestral territory, citing concerns over land degradation, water contamination, and cultural harm. Despite these objections, the National Native Title Tribunal (NNTT) ruled in favor of Santos, authorizing the project to proceed. The Tribunal’s reasoning revealed the limits of FPIC in Australian law, as it found that while Santos had made efforts to consult the Gomeroi, consent was not required. In other words, FPIC was treated as a process, not a veto.
The court acknowledged UNDRIP but reiterated that it carries no legal force in Australia unless explicitly adopted into legislation. This decision sparked broader public debate, especially in the wake of the 2020 destruction of Juukan Gorge, where Rio Tinto legally (but devastatingly) obliterated a sacred Aboriginal site. The incident provoked national outrage and renewed scrutiny of how extractive industries interact with Indigenous rights. Together, Juukan Gorge and the Gomeroi case underscore a legal system that privileges development over Indigenous sovereignty, even when communities oppose projects on spiritual, cultural, or environmental grounds. Despite these recent cases, signs of reform are emerging. The Australian Law Reform Commission (ALRC) has begun reviewing frameworks for better integrating FPIC principles, and the 2024 federal budget allocated funding to explore legislative pathways for strengthening Indigenous consultation in resource development. Whether these efforts will lead to binding legal recognition of FPIC remains uncertain, but they demonstrate a growing awareness that the current way is unsustainable.
Australia’s experience illustrates a core dilemma in the global climate transition: when consultation is decoupled from consent, Indigenous rights are subordinated to extractive imperatives. Without enforceable legal standards, FPIC risks becoming a performative gesture rather than a meaningful safeguard.
Part III: South America: The Bolivian Highway and the Struggle for Voice
In South America, where some constitutions explicitly recognize Indigenous rights and even reference FPIC, legal protections often falter when development interests come into play. Bolivia, frequently cited as a ‘progressive’ case, illustrates how constitutional recognition without enforcement leaves Indigenous communities exposed to environmental and cultural harm. The most emblematic case is the proposed highway through the Isiboro Sécure National Park and Indigenous Territory (TIPNIS), a biodiverse region in the Bolivian Amazon that is home to several Indigenous peoples. Backed by the government and financed in part by Brazil, the project was promoted as a key infrastructure investment intended to connect the highlands and lowlands, fostering economic growth and integration.
But for the Indigenous peoples of TIPNIS, the highway represented a direct threat to their autonomy, territory, and environment. Though the Bolivian government conducted consultations in accordance with national law and cited alignment with UNDRIP principles, the process was heavily criticized for being rushed, coercive, and devoid of binding consent authority. The government interpreted consultation as an obligation to inform and not to obtain agreement. This therefore mirrors a widespread trend where FPIC is once again symbolic when not backed by legal enforcement.
In response, Indigenous communities mobilized in mass protests and marches, capturing international attention and sparking political controversy. They rejected the idea that a project of this scale could move forward without their approval, insisting that self-determination must include the right to refuse. Their resistance highlighted the gap between constitutional ideals and practical implementation, especially in contexts where state-led development is framed as inherently beneficial. While Bolivia’s constitution acknowledges Indigenous rights and the plurinational character of the state, state-led development projects often override these protections put in practice to protect. The TIPNIS case demonstrates that without clear legal frameworks to uphold FPIC, even countries with robust rhetorical commitments can fall short.
Ultimately, the Bolivian highway controversy underscores a broader regional pattern; that constitutional recognition is not a substitute for enforceable legal rights. In the absence of strong judicial and political will, FPIC remains aspirational and only invoked in principle while ignored in practice.
Cross-Regional Analysis
The cases of Gomeroi v. Santos in Australia and the TIPNIS highway in Bolivia reveal distinct political and legal contexts, but they converge on a troubling pattern: states routinely treat consultation as a mere proxy for consent, allowing development projects to proceed without truly honoring Indigenous agency.
In both countries, FPIC exists more in rhetoric than in practice. Australia has not legally embedded UNDRIP into its domestic law and Bolivia, despite constitutional commitments, lacks consistent mechanisms to enforce consent. In each case seen above, governments did proceed to carry out consultations, but they were shaped by state-defined timelines, procedural control, and limited legal consequences. The result is a hollow version of FPIC, one that acknowledges Indigenous voices only to override them.
Secondly, the framing of extractive or infrastructure projects as ‘essential’ for economic development or climate resilience is a logic often used to greenwash violations of Indigenous rights. In Bolivia, the highway was promoted as national integration and in Australia, the Narrabri Gas Project was tied to energy transition and job creation. In both, Indigenous opposition was portrayed as an obstacle to progress. This further marginalizes those already structurally excluded, and reframes their defense of land, culture, and sovereignty as a threat to national interests rather than a legitimate exercise of rights. Such framing not only delegitimizes Indigenous voices but also normalizes a development paradigm where extractive infrastructure projects are treated as inherently beneficial, regardless of their social or ecological costs. By casting consent as negotiable and resistance as obstructionist, states reproduce colonial logics that privilege economic growth over justice and sustainability.
Moreover, the cases above expose the dangers of legal ambiguity. Where FPIC is not clearly defined or enforceable, governments and corporations exploit the grey zone, citing consultation to claim legitimacy while sidestepping consent. International obligations under UNDRIP are repeatedly eroded by domestic legal gaps and political pressure, reducing global human rights norms to symbolic commitments with little binding force.
Conclusion
At the heart of these cases is a broader dilemma: Can the global push for climate action coexist with Indigenous sovereignty? If states continue to treat FPIC as a procedural hurdle rather than a substantive right, the answer remains uncertain. If climate action is to be just, it must be rooted in genuine partnership with Indigenous nations. A partnership that recognizes their sovereignty, upholds their legal rights, and values their ecological stewardship. This demands stronger domestic laws, independent accountability mechanisms, and a fundamental shift in how states relate to Indigenous peoples as equal and self-determining nations. For as long as consent is negotiable and legal systems privilege economic imperatives, Indigenous communities will remain at risk not only of environmental harm, but of continued political disenfranchisement and green colonialism.
Edited by Callixte Baron.
