such standards’.53 Instead companies are require to ‘promote the full assumption by Governments
of such responsibility’ and ‘must not accept any award or commence any activity if the State has
failed to hold prior and adequate consultations with the indigenous communities concerned.’ This
requires that companies guarantee that FPIC has been obtained in context where it is required
under international standards, and ‘may require companies to abstain from operations in certain
countries where the appropriate consultation framework is not in place’.54
Format of consultations and consent seeking processes
International human rights treaty bodies have clarified that consent seeking processes should be
consistent with the requirements of ILO Convention 169 and the UN Declaration. ILO Convention
169 requires that consultations with the objective of achieving consent must be in a format that is
appropriate to the circumstances. The ILO supervisory body has clarified that this implies that the
procedures must ensure that sufficient time is available to indigenous peoples to conduct their own
decision-making processes in conformity with their ‘own social and cultural traditions’. 55 The Special
Rapporteur on the right of indigenous peoples has explained that consultation procedures must
be agreed before companies and State enter into agreements in relation to proposed extractive
projects.56 The Special Rapporteur also notes that:
…‘in order to achieve a climate of confidence and mutual respect for the consultations, the
consultation procedure itself should be the product of consensus’,57 and that mining ‘companies
should … defer to indigenous decision-making processes without attempting to influence or
manipulate the consultation process.’58
According to the ILO Supervisory body ‘best practice’ involves accepting the proposals put forward by
indigenous peoples themselves with regard to a consultation process.59 The World Bank’s Operational
Policy requires that consultations be conducted through ‘culturally appropriate processes’.60 CERD
has instructed states to consult with indigenous peoples in a manner that respects their customary
laws and practices, and to ensure that FPIC implementation guidelines are consistent with respect
for their inherent rights.61 The emerging practice among indigenous peoples of formalizing their own
unique consultation and consent protocols or policies is one mechanism through which this can be
achieved, and is recognized as something which States should support indigenous communities to
develop.62
The role of indigenous institutions in FPIC processes
The UN Declaration clarifies that all third parties must obtain consent through representatives and
institutions, chosen by indigenous peoples in accordance with their own procedures.63 The InterAmerican Court on Human Rights in the case of Saramaka v Suriname has clarified that indigenous
peoples should determine, in accordance with their custom and traditions, who should be consulted
and provide consent in relation to activities impacting on them.64 This fact that indigenous peoples
must be represented by structures of their own choosing has been repeatedly emphasised by human
rights bodies and acknowledged by international financial institutions.65 Indigenous peoples are
entitled to strengthen or modify their institutions, or create new representative structures to facilitate
their engagement in contemporary decision-making processes pertaining to extractive projects.66
Participating in FPIC processes, an obligation or a right
A self-determination based right to give or withhold FPIC implies that where a community does not wish
to enter into consultations with a third party, or the State, such an obligation should not be imposed
on them.67 In practice this could be operationalized in various ways depending on the particular
circumstances and wishes of the indigenous peoples. In cases of communities in voluntary isolation
any attempt to obtain consent would be inappropriate. In other contexts, communities may impose
moratoria on mining activities, during which time they have expressed their refusal to be consulted
in relation to them. Another approach is through a phased consent requirement, whereby indigenous
peoples can reject a proposal at the outset in principle, without having to engage in a lengthy and
12
Making Free, Prior and Informed Consent a Reality