How are rights-based impact assessments to be realized in the context of FPIC processes?
International human rights and environmental standards and guidance point to the need for adequate
indigenous participation in the conduct of impact assessments. These should span social, cultural,
spiritual, environmental, gender, human rights and economic considerations and identify all rights
which are potentially impacted by a proposed project. They also hold that the determination of the
project impact area has to be based on both the technical information and indigenous peoples’
perspectives of the impact area. The right to full and effective participation, of all groups including
youth, women and the elderly, in the conduct of these processes can be realized in a number of
ways, depending on the wishes and capacity of the people in question. Indigenous interviewees
emphasised the importance of ensuring the participation of older indigenous women in recognition
of their traditional knowledge regarding the value of resources, local history and the significance
of certain sites. Indigenous peoples may be satisfied with a determining say in who will conduct
impact assessments and provisions for participation in such assessments which would establish
baseline information against which projects could be continually monitored―preferably through
independent expert investigation and review. In other contexts indigenous peoples may decide to
conduct aspects of these assessments themselves, free from outside interference, and request the
financial resources necessary to this.
Is it time for a transition from voluntary standards to binding commitments with effective oversight?
An overarching issue concerning indigenous peoples faced with corporate violations of their
rights is the fact that current commitments, which are made as part of voluntary standards, are
non-enforceable in practice. The current wording of some mining company policies and public
commitments in relation to FPIC are frequently framed towards maximizing the ambiguity as to
the circumstance in which they apply while minimizing any potentially binding implications which
might flow from them. The move towards the recognition of a rights-based requirement for FPIC
suggests that we may be approaching a juncture at which a dialogue with corporations in relation
to transitioning toward binding commitments and standards around respect for indigenous peoples
rights is necessary. Until that time, it is crucial that the dialogue address transparent monitoring and
grievance mechanisms to guarantee ongoing respect for agreements and standards. Finally, these
processes must also recognize the role of indigenous judicial institutions and customary law.
Making Free, Prior and Informed Consent a Reality
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