with the notion of a self-determination based requirement for FPIC. The former entails reaching
agreement on the terms and conditions pertaining to benefit and impact mitigation measures.
The latter implies a right to decide if the project should proceed, and arises in the early planning
stages prior to the issuance of the concession or the commencement of activities. Where consent
is granted it is generally manifested in a contractually binding agreement which includes benefit
sharing arrangements.
The requirement for FPIC also has implications for the nature of the benefit sharing arrangements.
The Norwegian OECD National Contact Point (NCP) found, in the case of a mining company seeking
to operate in Mindoro Island in the Philippines, ‘reason to question the procedures by which the FPIC
was obtained from the local communities’ as a result of payments which influenced the outcome and
nature of those processes.97 It recommended that the company ensure transparency and ‘establish
clear criteria and systems for allocating community funding’. Similar concerns have been raised
by UN bodies in relation to the potential for a lack of transparency around benefits, or payments
to individuals, as well as bribery and corruption of indigenous leaders to distort the outcome of
consent seeking processes.98 This issue is also associated with confidentiality in benefit and impact
agreements. Conflicts between confidentiality and FPIC arise when members of a community or
future generations are denied access to the terms of agreements. Confidentiality also limits access
to information across indigenous communities and as such may, in certain contexts, be at odds with
the informed aspect of FPIC operationalization.
FPIC and the right to development
Indigenous peoples have the right to determine their own development priorities.99 At the core of
the requirement for FPIC is the securing of indigenous peoples’ right to self-determination, by virtue
of which they are entitled to ‘freely pursue their economic, social and cultural development’.100
This is most clearly manifested in the UN Declaration, article 3 of which affirms that the right to
self-determination under the ICCPR and ICESCR applies to indigenous peoples. Article 32(1)
of the UN Declaration addresses the right to determine development policies and strategies in
relation to land, territories and resources. When read in light of article 3, it affirms a right to selfdetermined development.101 Article 32(2) establishes that obtaining ‘free and informed consent prior
to the approval of any [extractive] project affecting their lands or territories and other resources’ is
necessary to safeguard that right. This effectively recognises that indigenous peoples are entitled to
freely choose between extractive or non-extractive based models of economic, as well as social and
cultural, development. Indigenous peoples’ right to development extends to the pursuit of extractive
projects on their own terms as well as the pursuit of alternative traditional or non-traditional economic
models. Discourses which frame choices that are not aligned with the pursuit of extractive projects
in indigenous territories as ‘anti-development’ are consequently inconsistent with the human rights
framework, and counterproductive to establishing constructive relationships with indigenous peoples.
FPIC oversight and grievance mechanisms
Respect for indigenous peoples’ customary law is an essential component of the operationalization
of their right to give or withhold FPIC.102 Indigenous peoples participating in international fora have
asserted that FPIC, in the context of impacts of development projects, mandates direct accountability
of government agencies, corporate entities, and development agencies, to their local indigenous
governance structures.103 This accountability commences at the outset of the FPIC process, prior to
entry into indigenous territories or the granting of any rights or privileges to third parties in relation to
those territories, and continues throughout the project life-cycle. Consideration of, and respect for,
indigenous customary law is a fundamental component of any grievance mechanism in relation to
FPIC processes.
The UN Guiding Principles on Business and Human Rights clarify that ‘a grievance is understood
to be a perceived injustice evoking … a group’s sense of entitlement, which may be based on …
customary practice, or general notions of fairness of aggrieved communities.’104 A failure to respect
customary laws and practices consequently constitutes a legitimate grievance. This applies both in
Making Free, Prior and Informed Consent a Reality
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