GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Given the absence of this equality of arms in practice, as a result of the enormous
power asymmetries between Indigenous Peoples on one hand, and the State and
project proponents on the other, it is fundamental that the State guarantee respect
for Indigenous Peoples' conception of consultation and consent and that control
over the procedural and substantive aspects of the process be maintained by
Indigenous Peoples.
F. Protocols for Free, Prior and Informed Consent of Indigenous Peoples
Some Indigenous Peoples have documented their own consultation and FPIC
protocols specifying how their consent must be sought in accordance with their
customary laws and practices, who is to be consulted, what their representative
structures are, and the manner in which they will provide or withhold consent.62
This concept of indigenous community protocols is promoted under the Nagoya
protocol to the Convention on Biological Diversity on access and benefit sharing.
Such protocols may extend to cover multiple communities or peoples and constitute
a pro-active exercise of the right to self-determination63 Where an indigenous
community or people, or group of indigenous communities or peoples, have
developed such protocols as a pro-active exercise of their right to self-determination,
the State and all third parties seeking to engage with Indigenous Peoples, should
adhere to the requirements specified therein. The State should ensure that the
legislative and institutional framework accommodates these protocols thereby
guaranteeing culturally appropriate consultation and consent seeking processes.
G. Adopt the corresponding decision
As Article 6 of ILO Convention 169 and Article 19 of the United Nations Declaration
on the Rights of Indigenous Peoples indicate, the object of processes of consultation
is to reach an agreement or obtain free, prior and informed consent on the proposed
measures. As noted earlier the wording and intent of the Declaration in relation
to the affirmation of a consent requirement goes beyond that of the ILO C169, in
light of the former's recognition of Indigenous Peoples' right to self-determination.
Consultations with Indigenous Peoples, therefore, must be aimed at obtaining free,
prior and informed consent. If it is obtained, the appropriate public authority will
adopt the decision, adjusting it according to the changes proposed by those consulted
as a condition for their consent. If this is not obtained, the process is truncated and
62 Examples include the FPIC Manifesto of the Subanen of Zamboanga in Mindanao the Philippines and the
Kitchenuhmaykoosib Inninuwug a Canadian first nation community in Northwestern Ontario.
63 In the case of the Subanen of Zamboanga the protocol covered most of the Subanen communities of the Subanen
people who number approximated 300,000 in total.
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