resource intensive consultation and information provision process. Precursory ‘consultations about
consultations’ may be necessary in order to determine if indigenous peoples wish to engage in a
full blown consultation process or would rather express their rejection of a proposed project from
the outset. Given that refusal to engage in a consultation constitutes an exercise of their right to
self-determination, participation in such consultations should not be assumed to be a mandatory
requirement. Mandatory participation in consent seeking processes would be inconsistent with the
notion of seeking voluntary consent in a manner that is free of coercion.68
The role of moratoria in establishing the enabling conditions for FPIC
Human rights bodies have affirmed that moratoria on mining are necessary in contexts where the
enabling conditions for securing indigenous peoples rights, and by extension their FPIC, are absent.69
Consent of all impacted communities
The requirement for consent is triggered by proposed mining activities in, or affecting, indigenous
territories.70 This applies to all indigenous peoples’ traditional territories independent of whether
formal title is held over them.71 The FPIC of all communities whose rights are impacted must be
sought and obtained.72 Impact areas, as a result, have to be based on the social, cultural and
spiritual links to territories as well as the direct physical impact area.73
Indigenous capacity building and power inequalities
The UN Declaration requires that indigenous peoples have a right to technical and financial
assistance and must have the means to finance their autonomous functions, one of which includes
the operationalization of FPIC processes.74 The UN Special Rapporteur has placed considerable
emphasis on the need to address the imbalance of power between indigenous peoples and entities
seeking their consent through technical and financial assistance ‘without using such assistance
to leverage or influence indigenous positions in the consultations.’75 The Special Rapporteur also
emphasised the need to ‘build the negotiating capacity of indigenous peoples in order for them to be
able to overcome power disparities and effectively engage in consultation procedures’.76
Corporate due diligence and FPIC
This requirement for human rights due diligence is most relevant where the ‘nature of business
operations or operating contexts pose significant risk to human rights’.77 The Guiding Principles on
Business and Human Rights indicate that State guidance to business:
should advise on appropriate methods, including human rights due diligence, and how to consider
effectively issues on… vulnerability and/or marginalization, recognizing the specific challenges
that may be faced by indigenous peoples’.788
In its guidance to States and corporations the UN Experts Mechanism on the Rights of Indigenous
Peoples has recommended that corporations take the requirement for indigenous FPIC into account
in their due diligence processes.79
The Special Rapporteur on the rights of indigenous peoples has clarified that part of this required
due diligence is ensuring that a corporation ‘does not ratify or contribute to any act or omission on the
part of the State that could infringe the human rights of the affected communities’, such as a failure
to seek the informed consent of an indigenous community prior proceeding with a project.80 The
Special Rapporteur also noted that ‘[t]he duty of companies to respect human rights and the concept
of due diligence … are reflected in the United Nations Global Compact’.81 The 2012 Compact’s draft
Business Reference Guide on the UN Declaration on the Rights of Indigenous Peoples notes that in
contexts where States have not ‘respected indigenous peoples’ right to FPIC … businesses can and
should still ensure that they do not start a project unless and until the relevant indigenous peoples
have provided FPIC’.82 Indigenous peoples’ rights to land, territories and resources arising from their
customary land tenure should be identified as part of corporate due diligence. Lack of formal title or
Making Free, Prior and Informed Consent a Reality
13