Defining the notion of “free prior and informed consent” (FPIC)
- Free, Prior and Informed Consent (FPIC) is an emerging standard in the dialogue on Indigenous Peoples rights; that it is arguably becoming part of customary international law.1 Although the U.N. Declaration is not a binding legal instrument it undoubtedly forms part of the norms that can guide the behaviour of States and ultimately mould customary international law.
- FPIC is a standard protected by international human rights law. It states that “all peoples have the right to self-determination” and “all peoples have the right to freely pursue their economic, social, and cultural development.”
- FPIC is protected under the International Labour Organization Convention (ILO) 169 and the UN Declaration on the Rights of Indigenous Peoples, where it is specifically mentioned five times (Articles 10,11,19,28, 29). The duty to consult is further reflected in Articles 19 and 32. ILO 169 Article 6 also requires that consultation with Indigenous Peoples be carried out through institutions that are representative of Indigenous communities, and specifies that Indigenous people should control the process by which representatives are determined.
- The U.N. Declaration is the result of two decades of advocacy and negotiations by indigenous peoples’ rights advocates,2 and as a whole it is based upon the principle of indigenous peoples’ right to self-determination and that “[b]y virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”3
- The later articles of the Declaration lend more substance to how self-determination should be put into effect in practicality. In this vein, the U.N. Declaration explicitly calls for the FPIC of indigenous peoples in: Article 10 in the case of relocation of indigenous communities, Article 19 when a State is adopting legislative or administrative measures that affect indigenous peoples, and Article 29 regarding the disposal of hazardous waste within their territories.4 In addition, Article 32 requires free and informed consent prior to “the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
- The concept of FPIC can be summarised as follows: it is the right of indigenous peoples to make free and informed choices about the development of their lands and resources. The basic principles of FPIC are to ensure that indigenous peoples are not coerced or intimidated, that their consent is sought and freely given prior to the authorisation or start of any activities, that they have full information about the scope and impacts of any proposed developments, and that ultimately their choices to give or withhold consent are respected.5
- As simple as the above definition may seem, there is no doubt that the concept of free, prior and informed consent is open to interpretation. There is no internationally agreed understanding of the principle of free, prior and informed consent or the mechanisms for its implementation.6
- The German Ministry for Economic Cooperation and Development, for example, has a Human Rights Policy (2011)7 which explicitly identifies free, prior and informed consent as a good development practice. On the other hand, the World Bank’s policy on Indigenous peoples requires a process known as “free, prior and informed consultation” to attain broad community support for development projects.8 The Bank’s policy (OP/BP 4.10) has been heavily criticised by Indigenous organisations as a significant weakening of free, prior and informed consent as an international standard. This is due to its lack of attention to the need for fully informed and effective participation and its lack of safeguards to ensure third party verification of the existence or non-existence of “broad community support.”
- Some nations such as Philippines, Malaysia, Australia, Venezuela and Peru, have national legislation on the free, prior and informed consent of indigenous peoples for all activities affecting their lands and territories.
- For example the Philippines: the Indigenous Peoples Rights Act (1997) recognizes the right of FPIC of indigenous peoples for all activities affecting their lands and territories including:
- Exploration, development and use of natural resources;
- Displacement and relocation;
- Archaeological explorations;
- Policies affecting IPs such Executive order 263 (Community Based Forest Management);
- Entry of Military.
- This article attempts to establish what FPIC means practically by reference to its implementation in other jurisdictions with the aim of encouraging companies and other corporate entities to work towards aligning their practices with this new standard of development which is fast becoming an international norm.
- The Inter-American Commission on Human Rights (‘IACHR’) has developed considerable jurisprudence on FPIC. The Commission has stated that the Inter-American human rights law requires ‘special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent’.
- In 2003, the IACHR stated that FPIC is generally applicable ‘to decisions by the State that will have an impact upon indigenous lands and their communities, such as the granting of concessions to exploit the natural resources of indigenous territories’. IACHR has precedence on FPIC in the case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua 2000, where it found that the State of Nicaragua was actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni community.
- The case of Mary and Carrie Dann v. United States9 was brought before the Inter-American Commission of Human Rights following its decision of Awas Tingni. The Danns, members of the Western Shoshone Nation, argued that they existing rights to lands that had traditionally been used for cattle grazing and other activities. The United States argued that the said land rights had been extinguished through legal and administrative procedures, making the dispute a legal one as opposed to one based on human rights. The Commission found that the United States had violated the Danns’ right to equality under the law, the right to a fair trial, and the right to property as defined in the American Declaration. It was concluded that by refusing to accept the Danns’ legal intervention, as members of the Western Shoshone Nation, the State had failed to “fulfil its particular obligation to ensure that the status of the Western Shoshone traditional lands was determined through a process of informed and mutual consent on the part of the Western Shoshone people as a whole.”
- In the case of Maya Communities of the Toledo District v. Belize, the Commission based its findings on Dann and Awas Tingni precedent. The case dealt with resource concessions granted to foreign companies by Belize within lands that traditionally belonged to and were used by the Maya Communities. The Commission found that the State had violated the Maya Communities’ property rights, in that it had failed to recognise the communal lands that had traditionally been occupied and used by the Maya Communities. As such, the State had violated these property rights by granting the concessions within the lands “without effective consultations with and the informed consent of the Maya people.” Ultimately, the Commission held in this case “that the duty to consult is a fundamental component of the States obligations in giving effect to the communal property rights of the Maya people in the lands that they have traditionally used and occupied.”
- The Inter-American Development Bank’s (‘IADB’) 1990 Strategies and Procedures on Socio-Cultural Issues as Related to the Environment provides that ‘[i]n general the IDB will not support projects affecting tribal lands and territories, unless the tribal society is in agreement’.
- In five states of Australia, consent has been obtained through statutory indigenous-controlled Land Councils in the mining area for more than 30 years. These consent procedures were reviewed by the National Institute of Economic and Industry Research in 1999, which found that they had been successful in safeguarding Aboriginal control over Aboriginal land and have also provided a process of negotiation by which an increasing proportion of Aboriginal land in the Territory has been made available for mineral exploration.11
- In Australia, all levels of government must cooperate, in good faith, with Aboriginal and Torres Strait Islander peoples’ organisations to implement the broad provisions of the Declaration. There must be mechanisms for democratic decision-making, liaising with government, and mechanisms to allow Indigenous peoples to develop their own political, economic and social institutions. There are several developments that have gone some way towards fulfilling the right of self-determination for Aboriginal and Torres Strait Islander peoples in Australia: which include The National Congress of Australia’s First Peoples (Congress), the peak representative body and the primary point of engagement between Aboriginal and Torres Strait Islander peoples, and the Government and the Indigenous Human Rights Network Australia (IHRNA), a network of members who advocate for the promotion and support of Aboriginal and Torres Strait Islander rights in Australia.
- In the case of FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/ Western Australia  NNTTA 142 (19 December 2012) before the National Native Title Tribunal of Australia the tribunal dealt with native title as it related to a future act pertaining to an application for determination for the grant of a mining lease. The State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/’NTA’) of a future act, namely the proposed grant of a mining lease under the Mining Act 1978 (WA) (‘Mining Act’) to FMG Pilbara Pty Ltd (‘the grantee party’), a subsidiary of Fortescue Metals Group Ltd (‘FMG’). The proposed tenement comprised of 720.17 hectares located entirely within the area subject to the Yindjibarndi (‘the native title party’).
- A central consideration of the tribunal was the effect of granting the lease without the free, prior and informed consent of the Yindjibarndi. Primary considerations were the interests, proposals, opinions or wishes of the native title party, economic or other significance of acts, public interest in doing of acts and the final determination was that that the act could be done subject to specific conditions.
- In the case of Adani Mining Pty Ltd and Another v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People  NNTTA 16 (8 April 2015) also pertaining to mining leases the Tribunal stated that when making a future act determination it must take into account the criteria found in section 39 of the Native Title Act 1993. The weight attributed to each criteria depended upon the evidence provided. The criteria include a consideration of: the effect of the proposed mining leases on the enjoyment of registered native title rights and interests; the way of life, culture and traditions; and on any sites of particular significance to the native title party in accordance with their traditions. There are many other matters to consider, including the native title party’s opinions or wishes in relation to the management or use of the area concerned, as well as the economic or other significance of the proposed mine and the public interest in whether the mining lease should be granted.
- The position in Canada can be summarised as follows: the declaration is not binding as law. However, where treaty rights are involved or will be impacted, there is a general duty of consultation, and in some cases, there is even a duty which goes as far as consent. However, this does not apply to normal legislative and administrative changes and – for example, budgetary issues, especially where treaty rights are not involved.
- In the case of Snuneymuxw First Nation v. Board of Education – School District #68, 2014 BCSC 1173 (CanLII) the Court made it clear that it was unable to accept the reliance placed by the petitioners upon the Declaration as it not been endorsed as having legal effect by either the Federal Government or the Courts. Canada is a signatory to the UNDRIP, but has not ratified the document. The Federal Government, in announcing its signing of the Declaration, stated that the Declaration is aspirational only and is legally a non-binding document that does not reflect customary international law nor change Canada’s domestic laws. However in the case of Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900 (CanLII) the Court made it clear that although the Declaration is aspirational the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. The legislature is therefore presumed to respect the values and principles enshrined in international law, both customary and conventional as they constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.
- In the case of Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 Carswell Nat 3756 the Court made it clear that the degree of infringement of title determined the degree and nature of consultation. As such “when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.”
- This article aimed to highlight that the notion of “free prior and informed consent” is a serious consideration and fast rising a benchmark of any project development across most countries, having been adopted as domestic law across several jurisdictions. In light of this, it is in the best interest of any company or corporate entity to acquaint themselves with what “free prior informed consent” entails as well as put measures in place to work towards aligning their practices or approaches with this standard.
Implementation of the FPIC in other jurisdictions
• Regional Level- The Inter-American Commission on Human Rights (‘IACHR’)
1 Agnes Portalewska “Free, Prior and Informed Consent: Protecting Indigenous Peoples’ rights to self-determination, participation, and decision-making” 36-4 Free, Prior, and Informed Consent (December 2012) accessed at http://www.culturalsurvival.org/publications/cultural-survival-quarterly/free-prior-and-informed-consent-protecting-indigenous on October 27, 2015.
2 S. James Anaya, “The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era,” Making The Declaration Work: The United Nations Declaration On The Rights Of Indigenous Peoples 184 (Claire Charters & Rodolfo Stavenhagen eds., 2009).
3 United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, G.A. Res. 61/295, U.N. Doc.A/RES/61/295 (2007) art. 3.
4 United Nations Declaration, ibid. note 9, art. 32(2).
5 Tara Ward, “The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law,” 10 Northwestern Journal of International Human Rights (2011) accessed at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1125&context=njihr on October 27, 2015.
6 P Tamang, “An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices, Workshop on Free Prior and Informed Consent, New York” (17-19 January 2005); UN Doc. PFII/2004/WS.2/8, Department of Economic and Social Affairs Division for Social Policy and Development Secretariat of the Permanent Forum on Indigenous Issues.
7 See BMZ: Federal Ministry for Economic Cooperation and Development Human Rights accessed at: http://www.bmz.de/en/what_we_do/issues/HumanRights/index.html/ on October 27, 2015.
8 See World Bank, Operation Manual OP 4.10 – Indigenous Peoples (July 2005).
9 Mary & Carrie Dann v. U.S., Case 11.140, Inter-Am. Comm’n H.R., Report No. 75/02, OEA/Ser.L/V/II.117, doc. 5. Rev, 1 (2002).
10 Daniel Creasey & Neil Thomson, “The United Nations Declaration on the Rights of Indigenous Peoples: Guide to the Declaration and the Current Law In Australia” accessed at http://www.dlapiperprobono.com/export/sites/pro-bono/downloads/pdfs/aus_undrip_guide.pdf on October 27, 2015.
11 Fergus Mackay at the ED briefing on FPIC, World Bank, June 2004.