3. To obtain FPIC within a human rights framework, indigenous and tribal peoples’
consent must be on terms that recognize and substantively account for their
customary land and resource rights, and other affected rights. This would include
affirmation that indigenous and tribal peoples have the power and ability to bargain
with a resource developer on the basis of their customary rights, even in contexts
where those rights are not fully recognized by the state. The outcome of
negotiations and the terms of consent must include meaningful arrangements for
impact mitigation, compensation and reasonable benefit-sharing that account for
indigenous and tribal peoples’ land and resource rights.
4. Women have the right to equality in the exercise of the right of indigenous and tribal
peoples to participate in both internal and external decision-making processes and
institutions. Companies should, in cooperation with indigenous and tribal leaders,
foster the participation of women throughout FPIC processes, while respecting the
indigenous and tribal peoples own authority structures.
5. The Inter-American Commission on Human Rights has identified that governments
“usually relate directly with members of boards of directors of indigenous peoples or
their representatives, the majority of whom are men, despite the fact that these
members of boards of directors or representatives may not have an express
mandate from their general or community assemblies to adopt decisions of special
importance.” 53 Companies should work with indigenous and tribal peoples to
understand their traditional decision making processes, and assure themselves that
community decisions are consistent with those processes. While working to
understand traditional decision-making processes, companies must accept that
communities will not share certain information with the company, such as sacred
knowledge and information relating to particular customary matters.
6. Resource developers must have the requisite knowledge and resources to work to
obtain FPIC. Developers must prepare by:
a. acquiring knowledge about the operating context, including claims to
customary land ownership, and associated land tenure systems
b. conducting comprehensive social baseline and impact assessment studies
that identify human rights issues
c. including a gender analysis and impact assessment as part of the above
Inter-American Commission on Human Rights, Indigenous Peoples, Communities of African
Descent, Extractive Industries, 31 December 2015,
http://www.oas.org/en/iachr/reports/pdfs/ExtractiveIndustries2016.pdf: pp. 167-8.
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