‘Seeking to apply the higher standard’: Self-regulating corporations, transnational legal pluralism and Indigenous law in the settler state

This article examines the possibility that Indigenous law in Australia may actively discipline the conduct of transnational corporations in the extractive sector. Rather than viewing mining corporations’ engagement with Indigenous land-owners through international human rights instruments such as free, prior and informed consent (FPIC) under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the UN Guiding Principles on Business and Human Rights, or even national legal regimes such as that provided by the Native Title Act 1993 (Cth), this article suggests that while Indigenous land-owners may leverage these frameworks, they also assert their own laws, governance structures and decision-making processes in negotiations and ongoing relationships with mining companies. Using a legally pluralist approach, this article suggests that Indigenous law operates as a normative order that can constrain corporate conduct, even where corporations do not explicitly recognise it. Specifically, we suggest that legal pluralism as an examination of power relations between structurally unequal entities enables Indigenous sovereignty to be taken seriously and moves relations between corporations and land-owners beyond the settler state rights frameworks. In this way, there is scope to see some relations between corporations and Indigenous peoples as practices of self-determination rather than compensation.