GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
have already been made and, thus, the result of the consultation is irrelevant, then
the consultation is not in good faith.51
These four key requirements for the consent of Indigenous Peoples - to be free,
to be prior, to be informed, and to have been reached in good faith - are indivisible
and inseparable. They must be achieved as whole, and they can only be substantial
in that way.
In the context of foresting a climate of mutual trust, which is a pre-requisite for
good faith consultations, Indigenous Peoples must be provided with the opportunity
to agree and formulate their own conceptions of FPIC, and if they so choose
document these in the form of FPIC protocols or policies. In addition to addressing
the procedural dimension of FPIC they may also wish to strengthen existing, or
establish new, structures through which they engage with the State and other third
parties in FPIC processes. The development of these protocols or policies should
ideally occur in a context where there are no imminent threats arising from proposed
measures.
The formal recognition of Indigenous Peoples' land, territory and resource rights
is a further pre-requisite for the establishment of a climate within which meaningful
good faith consent seeking engagement can occur. In addition, given that consent
is a safeguard for Indigenous Peoples right to self-determined development they
must be in a position to consider the alternative development options available to
them prior to making a determination. In the context of extractive project this
necessitates prior participation of Indigenous Peoples in the formulation of
developmental strategies and policies pertaining to potential extractive industry
operations in their territories. For the right to development as recognized under
Art 7 of C169 and Article 32(1) of the UNDRIP to be realized in practice, adequate
provision of information on alternative developmental options available to Indigenous
Peoples prior to a consultation on a particular developmental option, such as an
extractive project, should be guaranteed. In addition there should be sufficient
prior capacity building so that communities are in a position to assess and contrast
these alternative developmental options and paradigms, and Indigenous Peoples
should have the opportunity to formulate their own development plans should they
so choose.
51 For example, the Protocol for the Participatory Consultation of the indigenous peoples of TIPNIS (March 24, 2012)
establishes that one of the objectives of the consultation is to establish the best possible conditions for the construction
of Bolivia's first ecological highway…, which shows that the decision to create a road had already been adopted by
the Bolivian State and the process of consultation being conducted would have no other purpose than to validate said
decision in the communities.
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