the process of seeking consent and in the mechanisms to address grievances associated with those
processes. At the local level grievance mechanisms must, as a result, be consistent with indigenous
peoples customary laws and practices and be established with their consent.
In addition to such local customary law based monitoring mechanisms, the recommendation that
States should allow international monitoring to address community complaints in relation to FPIC
implementation emerged from the international expert group meeting on extractive industries,
indigenous peoples’ rights and corporate social responsibility.105 The meeting also suggested that
the United Nations Permanent Forum should facilitate the establishment of an FPIC monitoring
body, which would be comprised of ‘independent figures, including Indigenous Peoples, who enjoy
the respect and confidence of indigenous communities’.106 The precise composition of such an
independent structure would need to be case specific and acceptable to the parties involved.
FPIC and conflict zones
The 2004 report of the World Bank’s Extractive Industry Review cautioned against the pursuit of
extractive operations in contexts of ‘armed conflict or of a high risk of such conflict’.107 In his survey of
extractive projects in indigenous territories the Special Rapporteur received submissions indicating
that some of these projects were resulting in violence against indigenous leaders, ‘political instability,
violent upheavals and the rise of extremist groups in indigenous areas’.108 The UN Declaration
requires that:
Military activities shall not take place in the lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.109
The deployment of military and para-military forces in indigenous territories is consequently not
justifiable on the basis of protecting the private interests of an extractive cooperation. Corporate
due-diligence should assess the need for such forces as part of their operations and if these are
deemed necessary, obtain the FPIC prior to their deployment, or cancel or suspend any activity in
that area until the situation if fully stabilized. The deployment of military or para-military forces in
indigenous peoples’ territories without the free agreement of indigenous peoples renders it extremely
challenging, if not impossible, to subsequently obtain ‘free’ consent to proposed development
projects in those territories.
16
Making Free, Prior and Informed Consent a Reality