GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
to understand the information provided. This capacity building aspect also related
to the 'free' component of FPIC as, in the context of resource development projects
in or near their territories, it implies that communities must be equipped with the
capacity to engage in negotiations with the State and third parties in context of
significant power asymmetries. Therefore, for consent to be freely given significant
upfront investment in capacity building may be required. As part of the negotiation
process communities must be free to choose negotiators who can effectively
represent their interests. Mechanisms must be established to provide communities
with the financial resources to cover the costs associated with engaging these
experts, in a manner which avoids the potential for undue influence from the entity
providing the funding.
4.3 Informed
The Expert Mechanism sustains that “informed” implies that Indigenous Peoples
have been provided all information relating to the activity and that that information
is objective, accurate and presented in a manner and form understandable to
Indigenous Peoples.43
The Special Rapporteur points out that in order for the Indigenous Peoples concerned
to make free and informed decisions about the project under consideration, it is
necessary that they are provided with full and objective information about all
aspects of the project that will affect them, including the impact of the project on
their lives and environment. To this end he believes it is essential for the State to
carry out environmental and social impact studies so that the full expected
consequences of the project can be known. These studies must be presented to the
indigenous groups concerned at the early stages of the consultation, allowing them
time to understand the results of the impact studies and to present their observations
and receive information addressing any concerns.44
The Permanent Forum is more specific, detailing: Informed should imply that
information is provided that covers (at least) the following aspects: a. The nature,
size, pace, reversibility and scope of any proposed project or activity; b. The
reason(s) for or purpose(s) of the project and/or activity; c. The duration of the
above; d. The locality of areas that will be affected; e. A preliminary assessment
of the likely economic, social, cultural and environmental impact, including potential
risks and fair and equitable benefit-sharing in a context that respects the precautionary
principle; f. Personnel likely to be involved in the execution of the proposed project
43 A/HRC/18/42; page 22; paragraph 25.
44 A/HRC/12/34; page 20; paragraph 53.
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