necessarily begin well before any corporation seeks permits and other authorizations from the State.
What should corporations do when the State does not require indigenous consent?
In addressing the requirement for FPIC there is still a tendency for some corporations to invoke
national legislation and State sovereignty as arguments to defend its non-recognition. Transnational
corporations clearly have obligations to respect the laws and requirements of the host States in
which they operate. However this is not the only source of corporate obligations. Indigenous peoples’
customary laws and human rights law affirms corporate obligations which are above and beyond
national legislation. Where States fail to enact legislation or take measures to protect the rights
of indigenous peoples this threatens the credibility and viability of corporate projects within, and
potentially beyond, those States.
Human rights bodies, such as the Special Rapporteur on the Rights of Indigenous Peoples, have
addressed the need for corporations to go beyond such inadequate national requirements. They
have recommended that, as part of their due diligence, mining companies should recognize and
promote the State’s duty to consult and obtain consent in the context of projects which have potential
impacts on indigenous peoples. They should then avoid the pursuit of projects where the State has
not complied with this duty. This last point is particularly relevant in States where military and paramilitary groups are deployed in indigenous peoples’ territories against their wishes. Constructive
dialogue with indigenous peoples with regard to how to encourage States to comply with this duty,
and the appropriate corporate action in cases where this is not the case, would be a welcome
development.
Who defines free prior and informed consent?
In a growing number of national jurisdictions the requirement for consent has been affirmed in
legislation or by the courts. In some of these States implementing rules and regulations have
been developed elaborating on how consent is to be obtained. In other contexts bodies, such
as international financial institutions, have developed guidelines for corporations to follow when
attempting to obtain FPIC. From a rights based perspective these approaches can be extremely
problematic as such guidelines should be developed with the full and effective participation and
agreement of indigenous peoples. Indigenous peoples themselves regard FPIC as a principle
and manifestation of their control as to the future development of their territories. It is therefore a
process to be defined and managed by those indigenous authorities and communities whose lands
and futures are impacted, rather than imposed by corporations, corporate consultants or national
governments. A dialogue with indigenous peoples on the emerging role of their FPIC protocols,
policies and guidelines, and how these can be facilitated and respected in practice, could assist in
avoiding what would otherwise be a form of colonial style social engineering.
How are differences of opinion between impacted communities or conflicts addressed?
In many instances a single mining project may impact two or more indigenous communities or
peoples. Questions were posed during the research as to how FPIC is to be operationalized in
these cases and how divergent positions are to be dealt with. The response of indigenous peoples
has generally been that, in such contexts, prior to seeking their consent, they should first be in a
position to determine collectively among themselves how FPIC will be granted or withheld and
how any inter-community disputes are to be resolved. They have also expressed the view that
in cases where there is conflict among communities or peoples over ownership or control of land
then extractive projects should not proceed until the communities in question have resolved their
differences. Some of the corporate perspectives emerging from the research pointed to a scenario
whereby the consent of the majority of communities could potentially be considered as an adequate
basis to proceed. Human rights standards imply that the FPIC of all indigenous communities whose
rights are potentially impacted—including for example downstream communities impacted by water
pollution—must be obtained.
Making Free, Prior and Informed Consent a Reality
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