GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
e) In cases where impacts are minor, recognition of the requirement for consent
should not be problematic, given that in contexts where benefits outweigh
impacts consent will in general be forthcoming.
The Philippines' experience with implementing FPIC is illustrative of this approach.
In the FPIC implementing guidelines, both large and small scale mining are treated
in the same manner with both requiring a full blown FPIC process. All mining
was recognized as inevitably having major impacts from the perspective of the
impacted Indigenous Peoples as it represented a direct limitation on their control
over lands and resources and their social, cultural and economic development
options.
In the concrete case of the Saramakas, according to the Court's decision, the
guarantee of their life as a tribal people would be satisfied by requiring their consent
before undertaking plans for large-scale investment that would consequently have
a major impact on their territory. We should note, however that the precedent
established by this judgment leaves out an infinite number of situations that seriously
threaten the self-determination of indigenous and tribal peoples, their community
ownership, their effective participation and their life as peoples, arising from
decisions that may be made about investment projects and other activities that
cannot be qualified as large-scale. Consequently, the parameter for establishing
the need for consent from a people should not be the size or scale of the investment
of the projects to be carried out in a territory, but rather the seriousness of the
potential impacts that said activities, regardless of their size or their budget, would
have on their rights.
Moreover, when the Court finds that the duty to consult emerges as a guarantee
linked to the restriction on the right of the Saramaka People to land ownership,
imposed by the State's decision to implement a large-scale project or investment
in said territory; it does so in light of its analysis of the concrete case. Nevertheless
and as indicated before, international instruments consider diverse situations in
which States must consult Indigenous Peoples to obtain their consent on
administrative and legislative measures that are not necessarily linked to activities
being carried out in their territories. These measures may be related to several
areas of life for Indigenous Peoples: education, health, religion, work, justice,
culture, human mobility, etc., and they may apply beyond and outside of the
territory of said peoples.
Investment projects can even seriously impact the rights of peoples who, due to
historic circumstances, live outside of their ancestral territory, in urban areas or
distant lands, but who maintain their identity as peoples. In such cases, public
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