Free, prior and informed consent (or FPIC) centres on obtaining consent from Indigenous Peoples (IPs) for any activities undertaken on their land. At the basic level, governments cannot implement a policy or programme on or concerning Indigenous Peoples’ lands unless there is prior consultation and consent from the Indigenous community. This includes any state policy or programme seeking to grant permission to a company to conduct any activity on such lands. Once they have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.
FPIC is derived from the right to self-determination, which is a cornerstone principle of Indigenous people’s rights. This right is enshrined in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which states:
“[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Not only is FPIC arise from self-determination rights but self-determination must be central to FPIC. As noted by UN Special Rapporteur on the rights of Indigenous Peoples James Anaya, FPIC is one of safeguards to the right to self-determination over lands and resources. As such, consent is not merely the signing of a contract but is instead a process over which Indigenous societies must have substantial control over matters within or affecting Indigenous peoples or Indigenous territories.
FPIC is also independently enshrined as a specific right in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007).
There is no simple legal definition of what “consent” in FPIC encompasses. There is no defined act or language which constitutes consent, but there are some key principles to understanding what meaningful consent entails.
Firstly, FPIC is not only about an outcome. It is a safeguard to the right to self-determination, and a critical part of this right relates to the autonomy that Indigenous peoples have over the decision-making process. Therefore, Indigenous peoples should have control over the entire consultation process and over what happens after a decision is made. Without meaningful autonomy and participation, any consent that is given would not be a true reflection of the right to self-determination. The importance of self-determined processes was stated by the Inter-American Court of Human Rights in the Samaraka People v Suriname case: “The safeguard of effective participation…must be understood to additionally require the free, prior and informed consent of the Saramakas in accordance with their traditions and customs.”
Second, consent includes the right to say “No” or to say “Yes with conditions”. The objective of the FPIC process is not always to negotiate a “Yes” outcome, and FPIC should not just be used as a mechanism to legitimise commercial activities. Instead, it is a process where Indigenous peoples are participating as equals and making decisions about their lands and territories.
Thirdly, consent is not fixed or a one-off process. It can be withdrawn or reconsidered at any time if the proposed activities change or if new information relevant to the proposed activity emerges. It can be withheld during particular phases of project activities or given for other activities.
FPIC and the right to self-determination is a set of “collective” rights. This means that it is the collectivity that is a community of Indigenous peoples who give the consent. The Inter-American Commission on Human Rights has specifically noted that the “community as a whole” must consent. As with any collective, differences of opinion and differing ideas of what is acceptable and what is not will arise.
As such, an important part of the FPIC process is ensuring that the processes of consultation adequately provide for a consideration of competing priorities within Indigenous communities. This includes ensuring that women are included in such processes. For example, during the development of a palm oil concession in Indonesia, the women of the Desa Mekar Jaya community stated that they had not heard of FPIC as it was only the men who were engaged in the consultation processes.
Most international bodies such as the Committee on Economic, Social and Cultural Rights note that states bear the primary responsibility to obtain free, prior and informed consent. As such, companies have often avoided formal FPIC processes unless they are legally mandated to implement it (where countries have laws and regulations requiring FPIC to be undertaken by companies).
The problem with this is that states often do not seek consent or consult with Indigenous groups before granting licenses to companies. With the growing expectation that businesses fulfil their responsibility to respect human rights independently of a state’s ability to protect such rights (as enshrined in the UN Guiding Principles on Business and Human Rights), there is now a firm expectation that businesses themselves obtain consent through participatory decision-making or consider alternative sites for projects.
More recent publications from institutions like the International Finance Corporation, the World Bank and the International Council for Metals and Mining (ICMM) have stated that mining companies and project operators must conduct a “free, prior and informed consent consultation” and “work to obtain” FPIC. Although these guidelines by the ICMM and the World Bank fall short of what FPIC and self-determination rights actually require under international law, it shows a greater movement towards business responsibility to obtain consent.
It also makes good business sense to respect the self-determination rights of Indigenous peoples. Without community support, the financial and operational viability of the project can be at risk, in addition to risks of litigation and reputational costs. By obtaining strong consent from Indigenous communities, businesses will have a deeper and more durable social license to operate.
There are numerous ways in which companies claim to have obtained “consent” while having poor FPIC processes on the ground:
When giant wind turbines were being planned on indigenous Saami reindeer herding lands in northern Sweden, the impacted communities argued that the project was in breach of Saami rights. In response, the Swedish government argued that renewable energy development had to be prioritised over the rights of the indigenous Saami. It is reported that the financier of the project, KfW IPEX-Bank, used the Swedish government’s statement to absolve itself of responsibility towards the Indigenous communities. The bank considered that Swedish law was sufficient to protect Saami rights. However, the Norwegian Supreme Court ruled that the wind project was illegal and it was to be discontinued. (see IHRB Explainer on Wind Energy.)
Other IHRB resources:
