Aboriginal title

Free, Prior, and Informed Consent (FPIC)

Aboriginal title refers to the bundle of rights and interests in land and waters that Aboriginal and Islander people can hold under traditional laws and customs. Aboriginal title may exist over an area at common law even if aboriginal title rights have not been formally recognised (or determined) by a court. Indigenous peoples cannot be relocated without free, prior, and informed consent. They also have the right to redress in cases where their lands or resources have been occupied or damaged without their free, prior, and informed consent.

This Scheme addresses the rights of indigenous peoples. While there is no universal definition of indigenous peoples, they are generally identified as:

● tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

● peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Many indigenous peoples have suffered from historic injustices and therefore are considered a vulnerable group. Such a group could experience negative impacts as a result of the organization’s activities more severely than the general population.

The United Nations (UN) Declaration on the Rights of Indigenous Peoples and the International Labour Organization Convention 169 ‘Indigenous and Tribal Peoples’ address the rights of indigenous peoples. Indigenous peoples have both collective and individual rights, as set out in these instruments.

Area-based BidCarbon Standard Scheme projects subject to aboriginal title law must consider aboriginal title holder interests—particularly with regard to satisfying legal right and eligible interest-holder consent compliance obligations for the project.

Area-based projects can also provide material benefits to both aboriginal title groups and project proponents where these parties are not the same. However, these benefits may only be realised if there is genuine, early engagement with Indigenous communities and aboriginal titleholders affected by a project.

The normative framework of FPIC consists on a series of legal international instruments including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the International Labour Organization Convention 169 (ILO 169), and the Convention on Biological Diversity (CBD), among many others, as well as national laws.

International normative framework

Guidance available

Free, Prior, and Informed Consent (FPIC) is a specific right granted to Indigenous Peoples recognised in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which aligns with their universal right to self-determination. FPIC allows Indigenous Peoples to provide or withhold/ withdraw consent, at any point, regarding projects impacting their territories. FPIC allows Indigenous Peoples to engage in negotiations to shape the design, implementation, monitoring, and evaluation of projects. The Technical Governance Committee released the final guidance about aboriginal title, legal right and eligible interest-holder consent considerations under the BidCarbon Standard Scheme on 1 May 2024.

Scheme participants who carry out an area-based BidCarbon Standard Scheme project must have the legal right to undertake their project, obtain consents from all eligible interest-holders, and hold all required regulatory approvals for the project before they can receive BidCarbon credit units. This guidance is designed to assist participants with area-based projects understand their legal right and eligible interest-holder consent requirements, and clarify expectations for projects that have aboriginal title considerations.

Additional project resources have been developed to help participants (proponents) establish and demonstrate legal right, and should be used in conjunction with the main guidance document. Scheme participants, or ‘project proponents’, include registered aboriginal title bodies corporate, traditional owners, pastoralists or any other party including an aggregator or agent.

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For more information, see legal right and eligible interest-holder consent.

The FPIC-360° Tool manual for project practitioners is designed to provide guidance to BidCarbon Standard Scheme participants on how to implement the FPIC process. It contains both informative and operational documents.

Manual for project practitioners