for FPIC for ‘any plan, program or proposal affecting the rights or living conditions of indigenous
peoples.’21 The UN Declaration has been established as ‘a point of reference’ for reaching agreement
on the outstanding articles.22
The African Commission on Human and Peoples Rights affirmed that the requirement for FPIC flows
from both the rights to property and development under the African Charter on Human and Peoples
Rights.23 In its 2009 ruling in the case of the Endorois v Kenya in the context of the right to development
the African Commission held that for any development or investment projects which could:
...have a major impact within the Endorois territory, the State has a duty not only to consult
with the community, but also to obtain their free, prior, and informed consent, according to their
customs and traditions.24
The African Commission unambiguously affirmed the requirement for consent in the context of the
right to property affirming that: ‘In terms of consultation, the threshold is especially stringent in favour
of indigenous peoples, as it also requires that consent be accorded.’25
In 2012 the African Commission issued a resolution on a Human Rights-Based Approach to Natural
Resources Governance confirming:
…that all necessary measures must be taken by the State to ensure participation, including the
free, prior and informed consent of communities, in decision making related to natural resources
governance.26
International environmental law
Article 8j of the Convention on Biological Diversity, addressing benefit sharing arrangements with
indigenous peoples, has been interpreted by the Convention’s Conference of Parties as requiring
indigenous peoples’ consent for access to their traditional knowledge.27 The 2004, the Akwé: Kon
guidelines for the implementation of Article 8j of the Convention,28 recognized prior informed consent
as being of fundamental importance in the context of protection of indigenous peoples’ cultures.29
The guidelines have been cited by human rights bodies as illustrative of best practice for impact
assessments involving indigenous peoples in the context of extractive projects.30 The requirement for
indigenous peoples’ prior and informed consent was also included in the Convention’s 2011 Nagoya
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising
from their Utilization.31 The Nagoya protocol refers to the need to promote indigenous peoples’ FPIC
protocols as a mechanism to ensure that consultation and consent seeking are consistent with
indigenous peoples own practices and institutions.
The UN Framework Convention on Climate Change Conference was also opened for ratification
at the 1992 Earth Summit. To date its most tangible outcome is the Collaborative Programme on
Reducing Emissions from Deforestation and Forest Degradation in Developing Countries, under
the secretariat of the UN Development Programme.32 The programme is currently developing
guidelines for FPIC processes for its activities, with discussion arising in relation to the extension of
the requirement to include local communities.33
The 2012 Conference on Sustainable Development (Rio +20) report, The future we want, extends
this recognition of the requirement for indigenous peoples FPIC by recognizing:
...the importance of the United Nations Declaration on the Rights of Indigenous Peoples in the
context of global, regional, national and subnational implementation of sustainable development
strategies.34
Specific standards pertaining to corporate engagement with indigenous
peoples
Over the course of the last decade multinational mining companies have placed increasing emphasis
on engagement with indigenous peoples as part of their policies. This has gone hand in hand with
efforts within the UN to formulate and develop internationally applicable standards and guidance
Making Free, Prior and Informed Consent a Reality
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