Content of FPIC under human rights law and standards
Within the human rights framework the requirement for indigenous peoples’ FPIC is framed as both
a principle and a right which is intimately linked with, and flows from, the principle and right of selfdetermination. It is also framed as a safeguard for securing indigenous peoples’ rights in the context
of dealings with third parties. The duty to obtain indigenous peoples’ FPIC is seen as corollary of
these rights, in particular the rights to self-determination, development, culture and land, territories
and resources.
In addition to affirming the obligation to obtain indigenous peoples’ FPIC, and the fact that this
obligation cannot be divorced from the rights framework underpinning it, the human rights regime
has also elaborated on the content of the requirement for FPIC.
Basis for the requirement for FPIC
Under international human rights law the requirement for indigenous peoples’ FPIC is primarily
premised on their recognition as peoples who are vested with the right to self-determination and
who have their own perspectives on self-determined social, cultural and economic development
and maintain a particular relationship with their lands, territories and natural resources. Within this
human rights framework the requirement is also derived from the collective dimensions of their
rights, including rights to property, to develop and maintain their cultures, to autonomy and the
associated practice of customary law and maintenance and development of their own institutions.
The requirement is further buttressed by a) the necessity of guaranteeing indigenous peoples’
cultural and physical survival; b) ensuring the maintenance of their historical identity in the context of
externally proposed extractive projects, c) their particular historical contexts.47 The requirement has
also been recognized by the Inter-American Court on Human Rights as applying to groups which:
…share similar characteristics with indigenous peoples, such as social, cultural and economic
traditions different from other sections of the national community, identifying themselves with their
ancestral territories, and regulating themselves, at least partially, by their own norms, customs,
and traditions.48
Within the sphere of environmental law the requirement is framed as extending to include the
category of local communities. However, the collective rights framework underpinning this extension
has yet to be elaborated on.
Consent prior to concession issuance and subsequent activities
The normative framework of indigenous peoples’ rights, which includes ILO Convention 169, the
UN Declaration and the jurisprudence of international and regional human rights bodies, explicitly
affirms that the requirement to seek and obtain consent exists prior to the issuance of concessions
impacting on indigenous peoples’ enjoyment of their rights.49 Where States fail in this duty corporate
human rights due diligence necessitates the advance identification of indigenous peoples and any
potential impacts on their rights.50 This includes the requirement to consult and obtain FPIC.51
The human rights framework also clarifies that consent must be obtained throughout the project lifecycle. This specifically applies prior to exploration and exploitation activities or any other activities
which affect indigenous peoples’ enjoyment of their rights.52 In addition to the moral imperative
underpinning this iterative consent requirement, there is also an important business case driver, as
investment in exploration activities can be avoided where a community will be unwilling to consent
to exploitation.
National sovereignty and respect for indigenous peoples’ rights
The Human Rights Committee has rejected the notion of a ‘margin of appreciation’, in cases where
development projects deny indigenous peoples’ rights associated with the traditional uses of land.
The Special Rapporteur on indigenous peoples’ rights has clarified that companies must respect
the rights of indigenous peoples even ‘in cases where States are opposed to the application of
Making Free, Prior and Informed Consent a Reality
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