The lack of a minimum common ground for understanding the key issues by all actors concerned entails
a major barrier for the effective protection and realization of indigenous peoples’ rights in the context of
extractive development projects.1
James Anaya, Special Rapporteur on the rights of indigenous peoples
Introduction
Context
The right to self-determination is an inherent right of indigenous peoples which includes the right
to freely determine their social, economic and cultural development. Indigenous peoples also
enjoy the right to maintain and develop their cultures, as well as rights over their lands, territories
and resources. The requirement for their free and informed consent prior to the authorization or
commencement of any resource extraction project which encroaches, or impacts, on their territories,
is derived directly from these self-determination rights. This free prior and informed consent (FPIC)
must be obtained in a manner that is in accordance with the indigenous peoples’ customary laws and
practices of decision-making. The right of indigenous peoples to give or withhold FPIC is therefore
indivisible from, and necessary for the realization of, their cultural, territorial and self-governance
rights. The requirement to seek and obtain indigenous peoples’ FPIC is affirmed in a number of
international instruments and has been recognized by the human rights regime as flowing from all of
the major International Human Rights Covenants. It is most clearly articulated in the UN Declaration
on the Rights of Indigenous Peoples, which was primarily the result of indigenous advocacy in the
international arena.
There is now a growing acceptance of the requirement for indigenous peoples’ FPIC by the
extractive industries, as reflected by its incorporation into policies of an increasing number of mining
companies. The inclusion of the requirement for FPIC into the 2012 performance standards of the
World Bank’s International Finance Corporation, and by extension the Equator Banks, is indicative
of the fact that we have reached a tipping point in terms of the acceptance of FPIC as the standard
to which all corporate actors must comply in order to meet their responsibility to respect indigenous
peoples’ human rights.
The mining industry is also taking some initial steps towards seriously tackling the requirement for
FPIC. However it has serious legacy issues, has been slow to incorporate the requirement into
policy, and has struggled with how to comply with it in practice. Multinational mining corporations
continue to engage with indigenous communities in an inconsistent manner and rarely comply with
the standards necessary to respect indigenous peoples’ rights, interests and well-being. This has
resulted in a range of negative social, environmental, cultural, spiritual and economic consequences
for indigenous peoples, including threats to the physical and cultural survival of indigenous
communities around the world.
There is a corporate recognition that failing to achieve genuine community consent has put companies
at risk of short, medium, and long-term financial losses, including stalled project commencement or
disruption of production due to local community opposition. At the same time, mining corporations
wishing to operate in indigenous peoples’ territories point to the practical challenges they face in
operationalizing FPIC.
Indigenous peoples on the other hand remain highly sceptical about the sincerity of the industry to
actually respect their rights in practice. They are also concerned that the concept of FPIC will be
undermined and divorced from the right to self-determination if actors other than indigenous peoples
themselves attempt to define it and control its operationalization.
The Special Rapporteur on the rights of indigenous peoples has expressed the view that “the lack
of a minimum common ground for understanding the key issues by all actors concerned entails a
major barrier for the effective protection and realization of indigenous peoples’ rights in the context
of extractive development projects.”2 This paper seeks to provide a basis for discussion and debate
Making Free, Prior and Informed Consent a Reality
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