people can talk to about their grievances. A multipartite monitoring team, including representatives
of the community, alliances or federations, government and other independent bodies could be set
up to ensure the implementation of the agreement. The State should then deal with any violations by
law or in accordance with the provisions of the agreement. Respect for indigenous peoples judicial
institutions and customary law is an integral part of ensuring adequate grievance mechanisms.
Role of stakeholders in operationalizing FPIC
Role of the State
Indigenous peoples interviewed agreed on the fact that as the primary duty-bearer, the State’s role
is to respect, protect and promote indigenous peoples’ rights and that this includes respect for their
customary law. In the context of extractive projects this implies that government agencies and state
companies should do no harm. It also implies that measures must be taken in conjunction with
indigenous peoples to prevent third parties, such as mining companies from negatively impacting
on indigenous peoples’ rights. It also implies that pro-active measures must be taken to strengthen
indigenous peoples’ representative structures and their capacity to engage in FPIC processes and
to practice their customary law.
It is the role of the State to ensure that the enabling conditions for
FPIC to be realized are in place. The State needs to incorporate
the requirement for FPIC into its national legal framework and
policies. In the context of mining projects it is the role of the State to
ensure that FPIC is obtained prior to the issuance of concessions.
Indigenous peoples interviewed regarded it as incumbent on
corporations to request that States fulfil this role prior to acquiring
concessions or entering into agreements with them.
When an external entity seeks to enter into indigenous territories,
the role of the State is to act as a facilitator in the FPIC process,
not by creating new bodies from which to obtain FPIC, but by
respecting the indigenous authorities that already exist.
“The responsibility of
fulfilling the process of FPIC
is of the State. … It has to
be implemented in a way
that respects the norms
and laws under customary
law. If there are existing
decision-making processes
of indigenous peoples, the
State should not create
other spaces.”
The State’s role is to consult with the people, ensure that resources
Quote from Elisa
are available for consultations in a manner that does not influence
Canqui, Bolivia
the outcome of the process, ensure that the information provided
is correct and that all the affected indigenous peoples are involved
in the process. The State should have no part in the decisionmaking of the indigenous community. The role of the State is merely to explain the project in the
clearest way possible and then leave the community to dialogue among themselves and to take
their own decision within the framework of their own decision-making processes. Local government
officials should not be assumed to represent the community in FPIC negotiations. While elected
by the people, their mandate as part of the state apparatus is to
implement government programs, which are often contradictory
“Companies should be
to the wishes of the community. They are therefore not the correct
body to represent self-determination of indigenous peoples,
encouraged to develop
unless the community expressly says they are.
their own FPIC policies
and principles. We need to
engage with companies and
Role of companies
say to them that they need
The role of the mining company is to seek the indigenous peoples’
to participate in defining
consent for the mining project. Before starting any kind of FPIC
FPIC principles so that they
process, the company should do a context study to understand
can follow them and own
who are the indigenous peoples, where are their communities,
them as well.”
how do they make decisions, who are the representatives, and
everything they need to know about the indigenous people or
community in order to respect their rights.
Making Free, Prior and Informed Consent a Reality
Quote from Brian Wyatt,
Australia
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