ILO Convention 169 recognizes indigenous peoples’ collective land and participation rights and
affirms a strong procedural requirement for consultations which must have ‘the objective of
achieving … consent’.8 In addition these consultations must be undertaken ‘in good faith and in
a form appropriate to the circumstances’. In the context of relocation, the Convention requires
that ‘[w]here the relocation of these peoples is considered necessary as an exceptional measure,
such relocation shall take place only with their free and informed consent.’ Any deviations from this
requirement must be under exceptional circumstances, and subject to formal inquiries involving
indigenous representation.9
The UN Declaration represents the clearest elaboration of the requirement for FPIC in an existing
international instrument. Through it States have clarified that the right to self-determination applies
to indigenous peoples. It has been invoked by the international human rights treaty and charter
bodies as well as regional human rights bodies as an interpretative guide for determining the content
and scope of indigenous peoples’ rights. The requirement for consent is affirmed in seven of its
articles. Article 19 affirms it in the context of administrative measures, including the issuance of
concessions, while article 32 specifically addresses the requirement to obtain consent prior to the
approval of extractive activities.10
Engagement of UN charter bodies with consent requirement
In 2003, the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous peoples, described FPIC as embodying ‘the right to say no’, and being of ‘crucial
concern’ and ‘essential for the human rights of indigenous peoples in relation to major development
projects’.11 The current Special Rapporteur on the rights of indigenous peoples has argued that we
are witnessing the development of an international norm requiring the consent of indigenous peoples
when their property rights are impacted by natural resource extraction.12 The Special Rapporteur has
explained that measures which have a potentially substantial impact on basic physical or cultural
well-being of a community should not proceed without its consent, and has clarified that this applies
to large scale mining activities in, or near, indigenous territories.13
The Special Rapporteur on the right to food has affirmed that under international law indigenous
peoples’ land rights impose obligations on States to consult and cooperate in good faith ‘in order to
obtain their free and informed consent prior to the approval’ of any resource extraction projects.14
Likewise the Independent Expert on the Rights of Minorities has stated that their right to withhold
consent is implied in the ILO Convention 169.15 The Special Rapporteur on adequate housing as a
component of the right to an adequate standard of living has affirmed that displacement as a result
of mining was ‘unacceptable without the indigenous peoples’ free, prior and informed consent’.16
Regional human rights systems
The Inter American Commission on Human Rights interprets the requirement for consent in the
context of development or investment plans affecting indigenous peoples’ rights as directly
connected to the rights to life, cultural identity as well as other fundamental rights.17 It has since
2001 consistently emphasised the requirement for indigenous peoples’ consent in the context of
natural resources extraction.18
The Inter-American Court of Human Rights issued a landmark ruling in November 2007 affirming the
requirement for FPIC of indigenous and tribal peoples. In its decision in the Saramaka v. Suriname
case, which related to mining on tribal lands, the Court stated that:
...regarding large-scale development or investment projects that would have a major impact
within Saramaka territory, the state has a duty, not only to consult with the Saramakas, but also
to obtain their free, prior, and informed consent, according to their customs and traditions.19
The ruling, which interpreted indigenous peoples’ right to property in light of their right to selfdetermination, clarified that consent was necessary prior to the issuance of concessions for large
scale mining exploration and exploitation within Saramaka territory.20
The draft American Declaration on the Rights of Indigenous Peoples addresses the requirement
8
Making Free, Prior and Informed Consent a Reality