protection of these rights and does not constitute a legitimate basis for the failure to seek and obtain
indigenous peoples’ FPIC.83
In accordance with the recommendations of the UN Special Rapporteur due diligence implies that
‘[c]ompanies must therefore grant, in all respects, full recognition of the indigenous territorial rights
arising from customary land tenure, independent of official State recognition’, and ‘must ensure that
the consultations they hold are based on the criteria laid down in international rules’.84
Extraterritorial responsibility of home states for corporate compliance with FPIC
CERD has repeatedly emphasized the responsibility of home states of extractive industry companies
to explore ways to hold companies registered in their territories, or under their jurisdiction, to account
for violation of indigenous peoples’ rights.85
Social, spiritual, cultural, environmental and human rights impact assessments
The requirement for FPIC serves to protect indigenous peoples from the potential impacts of
extractive projects on their enjoyment of their rights. ILO Convention 169 affirms that ‘studies
...carried out in co-operation with the peoples concerned, to assess the social, spiritual, cultural and
environmental impact’ are a ‘fundamental criteria for the implementation’ of extractive projects.86 The
Akwé: Kon guidelines require ‘full and effective participation and involvement of affected indigenous
and local communities’ through the use of ‘participatory models of community engagement during
the conduct of the impact assessment’.87 This requirement has also been addressed by the Inter
American Commission on Human Rights which has clarified that participatory impact assessments
are necessary in order to identify indigenous peoples’ rights to communal property and the potential
impact on their enjoyment of these rights.88 The UN Guiding Principles complement this requirement
by requiring Human Rights Impact Assessments, the realization of which by definition necessitates
a rights based participatory approach.89 Addressing the impact trigger for the requirement for FPIC,
the UN Experts Mechanism on the Rights of Indigenous Peoples has stated that in ‘assessing
whether a matter is of importance to the indigenous peoples concerned, relevant factors include
the perspective and priorities of the indigenous peoples concerned’.90 CERD has clarified that in the
context of obtaining consent for extractive projects impact assessments must be carried out prior to
the issuance of licences.91 The Inter-American Court of Human Rights has also clarified that impact
assessments must address the cumulative ‘effects of existing or future activities’92 and that the
purpose of these assessments is to ensure a ‘proposed development or investment plan is accepted
knowingly and voluntarily’.93 This body of human rights law and guidance addresses the right of
indigenous peoples to participate in the conduct of impact assessments. It supports their right to
select and access independent experts, and to carry out those aspects of assessments which are
contingent on their own perspectives and developmental priorities.
Consensual benefit agreements
The UN Declaration recognizes indigenous peoples’ rights over resources and envisages FPIC as
the mechanism to ensure that they obtain adequate benefits from their exploitation. ILO Convention
169 affirms that ‘wherever possible’ indigenous peoples must participate in the benefits, irrespective
of State claims to ownership over subsoil resources. This requirement for culturally appropriate
benefit sharing exists in addition to compensation for any damages caused as a result of extractive
activities.94 The Inter-American Court on Human Rights held that a reasonable share in benefits,
together with FPIC and participatory impact assessments were necessary to safeguard indigenous
peoples rights.95 The UN Expert Mechanism on the Rights of Indigenous Peoples has proposed
that States establish permanent mechanisms together with indigenous peoples to ensure that their
‘perspectives on the extractive activity are taken into account including their ideal benefit-sharing
arrangements if they so choose���.96
While effective indigenous participation is necessary in determining appropriate benefit sharing
mechanisms, the requirement to enter into benefit sharing agreements should not be confused
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Making Free, Prior and Informed Consent a Reality