in the area of business and human rights, with a particular focus on the nexus of extractive sector
operations and indigenous peoples’ enjoyment of their rights.
Illustrative of this trend was the 1994 report of the United Nations Centre for Transnational Corporations
which addressed the positive correlation between the performance of companies and their respect
for indigenous peoples’ ‘right to withhold consent to development’.35 The 2003 Commentary on the
Norms on the responsibilities of transnational corporations and other business enterprises with
regard to human rights of the Sub-commission on human rights,36 specifically addressed the need
for companies to ‘respect the principle of free, prior and informed consent of the indigenous peoples
and communities to be affected by their development projects.’37
The decade long Study of the Problem of Discrimination against Indigenous Populations by then
Special Rapporteur Martinez Cobo; the 2001 and 2004 reports of the UN Sub-Commission on Human
Rights on Indigenous people and their relationship to land and Indigenous Peoples’ Permanent
Sovereignty over Natural Resources; the 2003 report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous people on large scale development projects;
and the 2004 World Bank Extractive Industry Review all emphasised the frequently ‘devastating’
impact on indigenous peoples of large scale mining in, or near, their territories, and the fundamental
role of FPIC in addressing and resolving this phenomenon.38
In 2006, the Special Representative of the Secretary-General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises, echoed some of these findings,
observing that:
The extractive sector – oil, gas and mining – utterly dominates this sample of reported abuses
with two thirds of the total.... [and] accounts for most allegations of the worst abuses, up to and
including complicity in crimes against humanity. These are typically for acts committed by public
and private security forces protecting company assets and property; large-scale corruption;
violations of labour rights; and a broad array of abuses in relation to local communities, especially
indigenous people.’39
As outlined above, the 2007 UN Declaration affirmed the requirement for States to obtain indigenous
peoples’ free prior and informed consent in order to safeguard indigenous peoples’ rights. The
corporate responsibility to respect component of the 2011, Guiding Principles on Business and Human
Rights for the implementation of the United Nations “Protect, Respect and Remedy” Framework is
premised on the fact that ‘corporate responsibility to respect human rights exists independently of
States’ abilities and/or willingness to fulfil their own human rights obligations.’ In this regard it states
that where indigenous peoples’ rights are impacted, business enterprises should be guided by the
United Nations standards which elaborate further on the rights of indigenous peoples.40
The incorporation of the consent requirement into the IFC 2012 performance standards, and by
extension the standards of the Equator Banks, was reflective of the approach, and is acknowledged
by mining companies and commentators to be of major significance to the industry and consultants
working on its behalf (see section 7 below).41 The IFC had previously noted that ‘[i]f an IFC client
is implementing a project where government’s actions mean that the project does not meet the
requirements of [ILO Convention 169], it can find itself accused of “breaching” the principles of
the Convention or of violating rights protected under the Convention,’ something which may have
potential legal implications depending on how the courts determine responsibilities of non-State
actors.42 The non-recognition by States of the existence of indigenous peoples or of their land
rights, or the absence of legislation to give them effect, does not constitute a legitimate basis for
corporate failure to respect their rights.43 Consequently, corporate adherence with the provisions of
ILO Convention 169 and the UN Declaration should not be a function of State ratification or support
for these instruments.44
National Contact Points of the Organization for Economic Cooperation and Development have
interpreted the OECD Guidelines on Multinational Enterprises as requiring respect for the outcome
of consultations aimed at achieving consent, which must be conducted in a form appropriate to the
circumstances and involve all potentially impacted indigenous groups.45 They have also pointed to the
need for due diligence to address the ‘entire project impact area, including associated infrastructure’.46
10
Making Free, Prior and Informed Consent a Reality