the manner in which corporations should respect this obligation in contexts where States fail to
do so.
8. The use and application of FPIC within the framework of indigenous law has significant
implications for national legal systems. These implications need to be explored in greater detail
and a compilation of existing and evolving experience produced in a systematic manner.
9. Most States currently do not have sufficient institutional capacity, political will or know-how to
establish and maintain legal and administrative systems which accord adequate respect to
indigenous decision making and judicial processes. This is particularly the case in the context
of investment and contractual arrangements with corporate entities. The provisions of the UN
Declaration therefore pose a major challenge to States, particularly those that are relatively underresourced, and are institutionally fragile. In this context the requirement for FPIC must be addressed
in investment agreements with corporations such that these States are not placed in the untenable
position of being expected to compensate corporations in order to uphold indigenous peoples’
rights.
10. FPIC processes should be comprehensive and respect the collective and individual rights of
indigenous peoples, including the rights of indigenous women. Corporations and other actors
should not, however, generalize and assume that women are excluded in all indigenous peoples’
decision-making processes. There are many indigenous peoples where women have leading
roles in decision making. It is also possible for communities to institute their own mechanisms to
address issues around the lack of women’s participation where such issues exist. Women should
be empowered to participate, but this must happen through internal procedures in a culturally
appropriate manner and not be as a result of imposed procedures. Indigenous cultures are not
static, and capacity-building with communities through culturally appropriate mechanisms can
help them in addressing such issues.
Recommendations to mining companies
1. Corporations should commit to respect international standards on indigenous peoples, especially
the UN Declaration, ILO Convention 169 and the General Recommendation number 23 on
indigenous peoples of the UN Committee on the Elimination of Racial Discrimination. These
international standards should be mainstreamed within corporate policy and practice, integrated
into their conduct of human rights due diligence, and promoted through the training and career
development of their staff. Corporations should operate ‘as if’ these international standards were
recognized under national law while also actively promoting their application within States which
operate to lower standards.
2. Corporations need to adopt policies which clarify their human rights obligations under international
standards, irrespective of national legislation. They also need to commit to those obligations
flowing from the legislation and policies of home and host States.
They should consider, in dialogue with affected indigenous rights holders and other relevant
actors, the most effective ways to manifest their binding commitment as distinct corporations to
operate up to, if not beyond, international standards on indigenous peoples’ rights.
3. Corporations should welcome and support the establishment of credible independent monitoring
of their activities which enjoys the confidence of all the affected parties.
4 Corporations should acknowledge and respect the fact that FPIC is viewed by indigenous
peoples as a principle which provides for their control over the future development of their
territories, and as a manifestation of that control. They should accept that FPIC is a process
which is to be defined and managed by the indigenous authorities and communities whose
territories and futures are impacted by proposed mining projects. Consequently they should not
be party to corporate, State or third party defined processes imposed on indigenous peoples.
Where indigenous peoples have defined their own FPIC protocols or policies these should be
respected.
Making Free, Prior and Informed Consent a Reality
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