GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
In the judgment on the Saramaka v. Suriname case (see above Note 11), the InterAmerican Court of Human Rights used a logical line of legal reasoning to link the
rights of self-determination, community ownership, effective participation, and
dignified life, which in the case of Indigenous Peoples implies a life as peoples,
to arrive at the right to free, informed and prior consent.
This suggests that the Court's reasoning in the Saramaka decision could support
the recognition of the consent requirement in contexts other than major impacts
of large scale projects. For example, in the context of mining operations in or near
Indigenous Peoples' territories the following may be worth considering:
a) Large scale operations should always be presumed to require consent as the
impacts associated with them are invariably major. This position could be read
into paragraph 17 of the Court's interpretation of the Saramaka judgement.
b) While the 'extent of impact' trigger could be applied to small scale mining
operations, in practice major impacts to indigenous communities are inevitable
with small scale mining for a range of reasons. These include the fact that
these projects represent a particular, and generally irreversible, development
trajectory which has intergenerational effects. They have to be considered in
the context of cumulative effects which they give rise to, such as the infrastructure
developments, migration and potential security concerns that they are frequently
associated with, and the fact that they are very frequently a precursor for large
scale mining.
c) If the requirement for FPIC flows from the right to self-determination then the
people themselves should be the ones to determine if the impact is significant
or not, and hence triggers the FPIC requirement. In practice the impacted
peoples are the only ones capable of determining the extent of the cultural,
social and spiritual impacts, as well as the impact on their development plans
and priorities. Therefore it appears to be implicit in the position that consent
is triggered by the significance of the impacts that Indigenous Peoples should
determine when consent is required. This in effect leads to a scenario where
consent will generally be required for small scale mining.
d) The exercise of the right to self-determination is not qualified based on the
presumed insignificance of impacts of externally imposed developments in or
near indigenous territories. In other words the imposition of a small scale
project, even if deemed by external entities not to have a major impact, is a
direct infringement on an Indigenous Peoples' exercise of their right to selfdetermination.
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