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In the late 1970s thousands of Indigenous Australians initiated a movement back to the ancestral lands they had been removed from during the assimilationist era. Less than 50 years since their return to country, Aboriginal people living in Western Australia’s (WA) remote communities are again grappling with their impending redispossession. Wa Premier Colin Barnett’s announcement late last year was panic inducing:
It is a problem that I do not want and the government does not want, but it is a reality. There are something like 274 Aboriginal communities in Western Australia—I think 150 or so of those are in the Kimberley itself—and they are not viable. They are not viable and they are not sustainable . . . I am foreshadowing that a number of communities are inevitably going to close.
International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.
The extractive industry has contributed to the development of international law since colonial times. Contracts between states and extractive companies largely drive this global industry. This essay situates extractive industry contracts involving Indigenous peoples, long term actors who have significantly informed the development of international law, within the context of international law. While these contracts are usually analyzed from domestic perspectives, they are impacted by international norms and, as developing transnational practices, even have the potential to show ways ahead in international law. As regards engagement with Indigenous peoples, contracts, which are typically regarded as private instruments, have significant public ramifications. This is especially the case where states, Indigenous peoples, and transnational corporations (TNCs) are involved and where internationally recognized principles relating to Indigenous rights, notably free, prior, and informed consent (FPIC) are implicated.