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Free, Prior and Informed Consent: An Emerging Standard in Resource Development

Defining the notion of “free prior and informed consent” (FPIC)

  1. 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.
  2. 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.”
  3. 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.
  4. 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 Read More