It is the role of the company to provide adequate information about the project to the community. The
company has the responsibility to inform communities that they are entitled to independent technical
and legal advisors of their choosing and where the State does not provide funding for this the company
should do so. Once information provision has met the demands of the community, companies should
avoid any interference in the FPIC process as to do so would render the process void.
Role of third parties
The indigenous representatives interviewed believe that indigenous peoples have the right and
prerogative to choose their advisers and supporters as part of their right to self-determination.
Communities are often not familiar with mining or may not have the necessary capabilities to engage
fully in FPIC processes. They may require legal or technical advice or negotiating skills in order to
ensure that their rights are fully protected. Regional or national organizations and federations to
which the communities are affiliated could play the role of advisers or observers to minimize the
power imbalance between indigenous communities and other actors in the process. In their capacity
as observers they can provide a degree of oversight and monitoring to ensure that both State and
corporate actors act consistently with their human rights obligations. The role of third parties such as
civil society organizations is crucial in helping indigenous peoples appreciate the impacts of mining
projects.
States and companies should not attempt to prevent third parties from providing support and advice
to indigenous communities, as the decision to accept or reject this support and information is up
to the impacted communities. However, such third parties should not impose their views on the
community, but should leave decision-making to the community in the context of FPIC and selfdetermination.
Challenges faced by indigenous peoples
Among the challenges for operationalizing FPIC identified by the indigenous representatives
interviewed are:
1. Lack of access to adequate and correct information about the mining project and its impacts.
In most cases, only biased and misleading information or details of positive impacts of mining
are provided. Indigenous peoples also experience communication problems when dealing with
companies or government because of cultural barriers such as language and different ways of
thinking and perspectives.
2. Indigenous peoples have difficulties mustering the financial and logistical requirements necessary
for the community to gather and hold their consultations, especially if the communities are far
apart or the affected area involves different indigenous peoples and communities.
3. The current strength of indigenous peoples and their traditional authorities to be able to assert their
right to FPIC is a challenge. Having experienced colonization and marginalization, often for many
centuries, indigenous authorities and institutions in some communities have been rendered very
weak. When mining encroaches on their territories there is a push for the indigenous community
to strengthen their traditional authorities. If they are do not have the space in which to do this and
access to the resources which it requires, the context becomes one which is conducive to undue
influence on leaders or the establishment of unrepresentative structures. This renders good faith
consultation and consent seeking impossible.
4. Indigenous peoples argue that customary law should have predominance within their territories.
However, asserting which law should prevail – whether formal law or customary law – is a
challenge. In a system of legal plurality formal laws should be on a par with and empower, and
not re-engineer or undermine, customary law. This is the proper relationship between these two
bodies of law.
5. It is a challenge for indigenous peoples to determine what strategies to use in pressuring the
State to implement FPIC. They need to monitor and hold the concerned government agencies
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Making Free, Prior and Informed Consent a Reality