Areas for further discussion:
A number of themes emerge from the research as areas where further discussion between the
industry and indigenous peoples is necessary. The research indicates that further dialogue could
assist in providing clarity on the corporate human rights obligations following from the normative
framework of indigenous peoples’ rights. This is necessary in order to facilitate an industry-wide
shift towards a rights-based conception of FPIC. This section of the paper identifies a subset of the
topics where there is a divergence of opinion and perspectives between indigenous peoples and
corporations or where confusion, perceived ambiguities, and lack of clarity impede consensus.
What are the bases for the requirement for FPIC?
Indigenous peoples regard FPIC as a derivative of their fundamental right as self-determining people
to control their own social, cultural and economic development. They also see it as an integral
part of their territorial, cultural and self-governance rights. Human rights bodies’ affirmations of the
requirement for FPIC, and the international instruments which explicitly or implicitly require indigenous
peoples’ FPIC, are consistent with this perspective of indigenous peoples. FPIC is framed as a
safeguard and a right which cannot be abstracted from the broader rights framework from which it is
derived. The evolving perspectives of some mining companies indicate a growing understanding of
this basis for the requirement for FPIC. However, the concept that FPIC is something which mining
companies can decide to ‘grant’ or not to indigenous peoples, and is consequently detached from
the recognition and respect for their fundamental rights, is still prevalent in the sector.
When consent is required?
The question of when consent is required is closely related to the understanding of the rights which
underpin it. Indigenous peoples regard the fact that the consent requirement is derived from their
self-governance and territorial rights as meaning that it must be obtained prior to the authorization
– and also prior to the commencement – of any extractive project. The prior and ongoing dimension
of consent therefore extends to any decisions, including entering into investment agreements in
relation to potential extractive activities, which could impact on indigenous peoples’ capacity to
govern their territories. This perspective is grounded in their own customary legal systems and
practices, as well as the international human rights standards which frame the consultation and
consent seeking requirements.
Discussions with mining companies offer a spectrum of thinking in relation to when consent is
required. Some recognize the potential value of addressing the consent requirement upfront in
investment agreements with States. The more general perspective was that consent could be
required prior to accessing land, and again prior to exploitation of resources. – as at these stages
indigenous peoples rights’ could be impacted on by project activities. Some suggested that seeking
consent prior to concession issuance was pushing the requirement too far back in the project lifecycle, and presented problems due to the role of the State in the concession issuance process. The
issue of potential investment loss where consent is withheld is also a consideration for corporations
in the context of operationalizing consent at later stages of a project life-cycle.
Discussions with indigenous peoples around the appropriate points to initiate consent-seeking
processes would be helpful. The notion of a ‘sweet spot’ prior to exploitation was floated by one
company representative. This would be a point in time where adequate information is available for
indigenous peoples to develop an informed understanding of the project’s impacts and benefits, and
the corporate investment curve has not yet reached a point where it becomes a significant obstacle to
withdrawal. For a meaningful conversation to be had in relation to this issue corporations need to share
insights into their operational realities with indigenous peoples and seek to understand indigenous
perspectives on how they wish to operationalize FPIC at different phase of a project life-cycle.
The implementation of FPIC cannot be divorced from the political and legal realities in particular
states. Corporations have often presented concession agreements from the State as fait accompli
that excuses them from any recognition of FPIC. Therefore an optimum FPIC process would
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Making Free, Prior and Informed Consent a Reality