The United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) principles require governments to obtain the free, prior and informed consent of Indigenous peoples before adopting and implementing policies which may affect them.
While the new laws require Traditional Owners to be informed about matters pertaining to their cultural heritage, they do not require their consent. When one party (i.e. Traditional Owners) cannot say no and have it mean no – but another party (i.e. proponents) can say no and rely on the Minister to approve their application – true consent cannot occur.
The precedent of section 18 Ministerial approvals under the previous Aboriginal Heritage Act 1972 does not provide any certainty for Traditional Owners that their heritage places will be protected. During the agreement-making process, which occurs in an already asymmetric power relationship, Traditional Owners are incentivised (i.e. co-erced) to consent, as something is better than the alternative of nothing.