Free Prior Informed Consent (FPIC) – a universal norm and framework for
consultation and benefit sharing in relation to indigenous peoples and the extractive
sector.
Paper prepared for OHCHR Workshop on
Extractive Industries, Indigenous Peoples and Human Rights
Moscow, 3rd - 4th December 2008
Cathal Doyle, University of Middlesexi
Introduction ..................................................................................................................... 1
A) Existing and Emerging Jurisprudence Mandating FPIC .................................................. 2
B) International Standards and elaboration for their content. ................................................ 3
FPIC in international and regional treaties and declarations. ............................................ 3
Support of United Nations Special Rapporteurs for FPIC ................................................ 4
Other Bodies and Mechanisms for Elaboration of the Normative Framework. .................. 5
Donor Governments, the International Council of Mining and Metals (ICMM) and World
Wildlife Fund’s (WWF’s) Mine Certification and Evaluation Project. .............................. 5
C) Alignment of Financial Institutions Standards with International Human Rights Norms .... 6
European Bank for Reconstruction and Development ...................................................... 6
Inter American Bank..................................................................................................... 7
Asian Development Bank.............................................................................................. 7
The World Bank Group Safeguard Polices and the Equator Principles.............................. 7
D) Statements of Indigenous Peoples demanding respect for FPIC from all parties................ 8
Introduction
This paper provides a non-exhaustive overview of the current status of the requirement to
obtain indigenous peoples Free Prior Informed Consent (FPIC) in relation to developments
that directly impact on their rights and interests. This requirement for FPIC has evolved into
an established universal norm of international law. FPIC establishes the framework and
context for all consultations with indigenous peoples pertaining to project acceptance and any
related negotiations pertaining to benefit sharing and mitigation measures. Particular
emphasis is placed on FPIC in cases where there are potentially substantial impacts on
indigenous communities, such as those resulting from large-scale natural resource extraction
in their territories.
FPIC together with Self Determination are two of the foundational principles of the United
Nation Declaration on the Rights of Indigenous Peoples (UNDRIP). Indicative of the
importance of FPIC for the realization of the rights articulated in the UNDRIP is the fact that
FPIC is explicitly required in six of its articles. The drafting of the UNDRIP by indigenous
peoples and its adoption at the General Assembly in September 2007, with 143 States voting
in favour of it, is an acknowledgement on behalf of States that FPIC has emerged as the
standard to be adhered to by all parties, including the private sector, in relation to
development projects in indigenous peoples lands.
The status of FPIC as a universal norm of international law, and the increasing importance
being attributed to it, is further evidenced by the following:
a) existing and emerging jurisprudence mandating FPIC at international, regional and
national levels and the enactment of legislation to give effect to it.
b) recognition of the principle of FPIC within the normative framework of indigenous
peoples rights as reflected in international and regional human rights standards.
c) the evolving policies of international financial institutions and development agencies.
d) repeated statements and demands of indigenous peoples emphasising FPIC as the
minimum standard for the realization of their full and effective participation.
1
A) Existing and Emerging Jurisprudence Mandating FPIC
At the International level the United Nationals Committee on the Elimination of all forms of
Racial Discrimination (CERD), in its 1997 General Recommendation No 23 on Indigenous
Peoples has interpreted the content of International Convention on the Elimination of all
forms of Racial Discrimination (ICERD), as requiring that
‘no decisions directly relating to [indigenous peoples] rights and interests are taken
without their informed consent’. ii
CERD is currently examining cases in Brazil, Canada, the Philippines, Peru and India under
its Early Warning Urgent Action procedure in relation to hydroelectric and extractive projects
on indigenous peoples lands. The Committee has pointed out issues pertaining to the
legitimacy of authorizing projects without FPICiii and has specifically asked a number of
these governments to provide details on the measure they have taken to obtain the FPIC of the
impacted indigenous peoples.iv
In its 2008 Concluding Observations CERD recommended that the Government of Russia
“seek the free informed consent of indigenous communities and give primary
consideration to their special needs prior to granting licences to private companies for
economic activities on territories traditionally occupied or used by those communities”.v
Likewise in its Concluding Observations urged the Government of Ecuador to obtain
indigenous peoples “consent in advance of the implementation of projects for the extraction
of natural resources.”vi In its 2006 follow up procedure it emphasised to the Government of
Australia that it should take decisions related to its indigenous peoples with their informed
consent.vii
In addition to CERD, other Treaty bodies such as the United Nations Committee on
Economic Social and Cultural Rights (CESCR) have also instructed states to obtain
indigenous peoples consent in relation to extractive industry projects.viii
At a regional level the Inter-American Court in November 2007 in its ruling on the Saramaka
v. Suriname case which related to mining on indigenous peoples lands stated that:
‘the Court considers that, regarding large-scale development or investment projects that
would have a major impact within Saramaka territory, the state has a duty, not only to
consult with the Saramakas, but also to obtain their free, prior, and informed consent,
according to their customs and traditions.’ ix
2
The Court referenced the UNDRIP provisions on FPIC and the Special Rapporteur’s guidance
in relation to the requirement to obtain FPIC.
At a national level, jurisdictions including the Philippines, Australia’s Northern Territories,
Venezuela and Greenland have enacted legislation requiring consent prior to the approval of
any activities in indigenous peoples territories. In 2007 Bolivia incorporated the UNDRIP,
including its six provisions requiring FPIC, into its national legislation. Jurisprudence in
countries such as Canada and Belize is indicative of the increasing acknowledgement of this
universal requirement for consent. The Supreme Court of Canada has clarified that, with
regard to consultation, where Aboriginal people hold title to land, the governments’ duty to
consult is ‘in most cases’ ‘significantly deeper than mere consultation’ and can extend to the
more demanding requirement of ‘full consent’.x Likewise in its October 2007 landmark
ruling, the Supreme Court of Belize referenced, inter-alia, the FPIC requirements in the
UNDRIP and CERDs General Recommendation XXIII on Indigenous Peoples. The Court
ordered the state cease and abstain from any acts, including granting of mining permits or
issuing any regulations concerning resource use, impacting on the Mayan indigenous
communities ‘unless such acts are pursuant to their informed consent’. xi
B) International Standards and elaboration for their content.
FPIC in international and regional treaties and declarations.
As outlined earlier international human rights treaty bodies, such as CERD and CESCR, have
clarified that indigenous peoples FPIC is required in accordance with state obligations under
their corresponding treaties.
In addition FPIC is also required in a number of other international standards. It has also been
identified as a requirement by a number of United Nations Special Rapporteurs, bodies and
mechanisms mandated to examine, monitor, advise or report on the realization of indigenous
peoples rights.
The clearest elaboration on the requirement for FPIC is found in the UNDRIP. FPIC is
required in six of its articles with article 32 specifically addressing FPIC in the context of the
extractive sector. It states that:
“States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
3
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.”
The Inter-American Draft Declaration on Indigenous Peoples contains a similar clause to
Article 32 of the UNDRIP requiring FPIC for ‘any plan, program or proposal affecting the
rights or living conditions of indigenous peoples’xii.
Likewise the Akwe: Kon guidelines for the implementation of Article 8j of the Convention on
Biological Diversity recognize FPIC as being of fundamental importance in the context of
protection of indigenous peoples traditional knowledge and intellectual property.
International Labour Organization Convention 169, an international binding treaty dedicated
to indigenous peoples, contains an explicit reference to indigenous peoples’ informed consent
in the context of relocation. In addition it requires that indigenous peoples ‘decide their own
priorities for the process of development’ and consultations with them should be through their
representative institution ‘with the objective of achieving agreement or consent to the
proposed measures’.xiii
Support of United Nations Special Rapporteurs for FPIC
A number of United Nations Special Rapporteurs on issues pertaining to indigenous peoples
rights have highlighted and elaborated on the requirement to obtain indigenous peoples FPIC.
The former Special Rapporteur on the Human Rights and Fundamental Freedom of
Indigenous Peoples, Professor Rodolfo Stavenhagen, described FPIC as being of ‘crucial
concern’ in relation to decision making concerning large-scale development projects xiv and
determined that due to the significant potential impact on indigenous peoples that ‘[f]ree,
prior and informed consent is essential for the [protection of] human rights of indigenous
peoples in relation to major development projects’.xv
The current Special Rapporteur on the Human Rights and Fundamental Freedom of
Indigenous Peoples, Professor, James S. Anaya, has argued that we are witnessing the
development of an international norm requiring the consent of indigenous peoples when their
property rights are impacted by natural resource extraction.xvi Responding to a recent request
for advice from Ecuador in the drafting of its constitution the Special Rapporteur referenced
the FPIC provisions of the UNDRIP and the jurisprudence of the Inter American Court,
explaining that measures which have a potentially substantial impact on basic physical or
4
cultural well being of a community should not proceed without the consent of the impacted
community.xvii
The former Special Rapporteur on Indigenous people and their Relationship to Land,
Professor Erica-Irene Daes, in her study on indigenous peoples’ rights to lands and permanent
sovereignty over natural resources, described the problem of expropriation of indigenous
lands and resources without indigenous peoples consent as “growing and severe”. xviii
Other Bodies and Mechanisms for Elaboration of the Normative Framework.
The United Nations Permanent Forum on Indigenous Issues (UNPFII) describes FPIC as a
‘vital principle’ with FPIC consistently on the agenda at each of its sessions. In recognition of
the importance of FPIC the UNPFII and the former Working Group on Indigenous
Populations (WGIP) have developed methodologies and legal frameworks to promote FPIC
and to aid with its implementation.
The Human Rights Council, established the UN Experts Mechanism on the Rights of
Indigenous Peoples in December 2007. At its first session in October 2008 the Experts
Mechanism recommended that the Durban Declaration and Programme of Action ‘should
acknowledge that both the right to self determination and the principle of FPIC are now
universally recognized through the adoption of the Declaration’.xix
The program of action for the Second International Decade of the World Indigenous
Peoplesxx, adopted by the General Assembly in December 2004, emphasizes the importance
of FPIC in ensuring the full and effective participation of indigenous peoples in decisions that
affect them.
Donor Governments, the International Council of Mining and Metals (ICMM) and World
Wildlife Fund’s (WWF’s) Mine Certification and Evaluation Project.
Donor governments are also increasingly recognizing the requirement for FPIC in their
development strategies with Denmark, Spain and the European Commission having
incorporated the requirement to obtain FPIC in their strategies.
The ICMM released its position statement on Mining and Indigenous Peoples in May 2008.
The statement did not recognize the requirement to obtain FPIC but did commit to ICMM
members to participating ‘in national and international forums on Indigenous Peoples issues,
including those dealing with the concept of free, prior and informed consent.’xxi
5
The 2006 final report of World Wildlife Fund managed Mine Certification and Evaluation
Project, which involved industry and civil society representatives concluded that FPIC was
the most prominent issue that “would be critical to the credibility of a certification process”
and identified undertaking more work on FPIC as one of the strategic tasks for the
development of any future mine site certification scheme.xxii
NGO’s such as Oxfam Australia have also produced publications detailing the concept of
FPIC and its role in the extractive sector.xxiii
C) Alignment of Financial Institutions Standards with International Human Rights
Norms
A number of international financial institutions have recently, or are in the process of,
updating their standards and safeguard policies to reflect the evolutions in the recognition of
indigenous peoples rights within the international human rights regime.
European Bank for Reconstruction and Development
The European Bank for Reconstruction and Development Environmental and Social Policy
issued in May 2008 recognizes that for the rights of indigenous peoples to be upheld enabling
them to engage in partnerships where they so chose, that their FPIC must be obtained. Its
policy states:xxiv
Need for free, prior and informed consent. This Performance Requirement recognises
the principle, outlined in the UN Declaration on the Rights of Indigenous Peoples, that
the prior informed consent of affected Indigenous Peoples is required for the projectrelated activities identified in paragraphs 31–37, given the specific vulnerability of
Indigenous Peoples to the adverse impacts of such projects.’
Where clients propose to commercially develop natural resources in indigenous peoples lands
the client is required to
‘enter into good faith negotiation with the affected communities of Indigenous Peoples,
and document their informed participation and consent as a result of the negotiation.’
FPIC is therefore seen as the necessary framework for any negotiations with indigenous
peoples to ensure ‘fair and equitable sharing of benefits’.
6
Inter American Bank
The Inter American Bank’s current policy on indigenous peoples was issued prior to the
adoption of UNDRIP in 2006. It mirrors ILO Convention 169’s requirement that
consultations and ‘good faith negotiation’ have the objective of achieving agreement or
consent. FPIC is required under this policy as it identifies ‘applicable legal norms’ as
including ‘international jurisprudence of the Inter-American Court of Human Rights’xxv.
Asian Development Bank
The Asian Development Bank has drafted its revised policy in relation to indigenous peoples.
The current draft of the Safeguard Policy, issued in October 2008, includes the requirement to
obtain FPIC in relation to projects involving “commercial development of natural resources
on lands used by Indigenous Peoples with impacts on the livelihood, or cultural, ceremonial,
or spiritual uses that define the identity and community of Indigenous Peoples”.xxvi
The World Bank Group Safeguard Polices and the Equator Principles
The current safeguard standards and policies of the World Bank Groupxxvii on indigenous
peoples are inconsistent with the principles and rights embodied in the contemporary
normative framework in relation to FPIC.
Both the World Bank commissioned Extractive Industry Review (2003) and World
Commission on Dams (2000) recommended that the Bank ensure that FPIC of indigenous
peoples be obtained in advance of funding large-scale extractive or hydro projects. However,
the Bank’s Operational Policy 4.10 and the IFC’s Performance Standard No 7 substitute ‘free
prior informed consultation (FPICon)’ for ‘free prior informed consent (FPIC)’. In doing so it
removes the requirement for indigenous peoples’ consent, replacing it with an ambiguous
objective of achieving broad community support (BCS).xxviii The “ambiguity” of the Bank’s
“determination of BCS” has been raised by its own Compliance Advisor / Ombudsman.xxix
The World Bank as a specialized agency of the United Nations is bound by Article 41 of the
UNDRIP, which requires it to “contribute to the full realization of the Declaration”. To be
consistent with the rights articulated in the UNDRIP, as well as the policies of other
International Financial Institutions, the World Bank Group will have to address the short
comings of its polices and standards by revising them to include the requirement for FPIC.
The World Bank Group’s policies influence the policies of a range of other International
Financial Institutions in particular through the Equator Principles. The revision of the Bank’s
7
policies, when this occurs will therefore lead to the alignment of the Equator Principles with
the international normative framework pertaining to indigenous peoples rights.
D) Statements of Indigenous Peoples demanding respect for FPIC from all parties.
Indigenous peoples have consistently called for respect for FPIC at national and international
fora.xxx As a result of the importance attributed by indigenous peoples to FPIC at the first
workshop on indigenous peoples, private sector natural resource, energy and mining
companies and human rights held in December 2001 the workshop recommended that
‘consultation between indigenous peoples and the private sector should be guided by the
principle of free, prior, informed consent of all parties concerned.’
The central role for FPIC in the realization of the rights to self determination and lands
territories and natural resources and the obligation it imposes on governments and private
sector was given particular emphasis in the statement of Global Indigenous Caucus following
the adoption of the UNDRIP:
‘Indigenous Peoples’ right to self-determination is about our right to freely determine our
political status and freely pursue our economic, social and cultural development. It also
includes our right to freely manage our natural wealth and resources for mutual benefit,
and our right to maintain and protect our own means of subsistence. ‘Free, prior and
informed consent’ is what we demand as part of self-determination and nondiscrimination from governments, multinationals and private sector.’xxxi
8
i
Cathal Doyle is a PhD Fellow at the University of Middlesex (United Kingdom) completing a doctoral
thesis on Indigenous Peoples right to Free, Prior Informed Consent. email: doncathal@gmail.com
ii
See CERD General Comment XXIII on the Rights of Indigenous Peoples (1997)
iii
The committee stated in its letter to the Government of Canada that the information it had received
pointed to a lack of clarity in relation to land rights ‘and therefore to doubts as to whether the
Government of Alberta and the Alberta Utilities Commission may legitimately authorise the
construction of a pipeline across Lubicon Territory without prior Lubicon consent’
http://www2.ohchr.org/english/bodies/cerd/docs/Canada_letter150808.pdf
iv
The committee requested that the Government of Brazil ‘provide detailed information’ in relation to
‘the process taken to obtain the free prior informed consent of the indigenous peoples concerned with
regard to the project to explore hydroelectric resources in this indigenous land’
http://www2.ohchr.org/english/bodies/cerd/docs/Brazil_letter150808.pdf. The committee recalled its
concluding observations to the government of India that it ‘seek the free prior informed consent of
communities affected by the constuction of dams in the Northeast or similar project on their traditional
lands
in
any
decision
making
related
to
such
projects”
http://www2.ohchr.org/english/bodies/cerd/docs/India_letter150808.pdf
The committee asked the Government of the Philippines to comment on ‘restrictions in relation to the
time-frame and process required to obtain the free and prior informed consent of indigenous
communities that are not in conformity with the customs, law and traditional practices of these
communities.’ Letter to Government of Philippines 24 th August 2007 available at
http://www2.ohchr.org/english/bodies/cerd/docs/philippines_letter.pdf
v
See UN Doc CERD/C/RUS/CO/19 20 August 2008 Concluding observations of the Committee on the
Elimination of Racial Discrimination Russian Federation 73 rd CERD session
vi
CERD/C/ECU/CO/19
15
August
2008
available
at
http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD.C.ECU.CO.19.pdf
vii
Letter
to
Government
of
Australia
August
2006
available
at
http://www2.ohchr.org/english/bodies/cerd/docs/69letter-australia.pdf
viii
See Concluding Observations of the Committee on Economic, Social and Cultural Rights to Ecuador
32nd Session 26 April - 14 May 2004 E/C.12/1/Add.100, para. 12;see also Concluding Observations of
the Committee on Economic, Social and Cultural Rights to Columbia 27 th Session 12-30 Nov. 2001
E/C.12/1/Add.74, para. 12. CERD Concluding Observations Ecuador 2003 CERD/C/62/CO/2 ‘as to the
exploitation of subsoil resources located subjacent to the traditional lands of indigenous communities
the committee observes that mere consultation of these communities prior to exploitation falls short of
meeting the requirements set out in General Comment XXIII on the rights of indigenous peoples. The
Committee therefore recommends that the prior informed consent of these communities be sought’;
ix
Inter-American Court of Human Rights Case of the Saramaka People v. Suriname Judgment of
November 28, 2007 (Preliminary Objections, Merits, Reparations, and Costs) para 134
x
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 para 186
xi
The Supreme Court Of Belize, 2007 Consolidated Claims Claim Nos. 171 & 172 of 2007 para 136 d
xii
Organization of American States Proposed American Declaration on the Rights of Indigenous
Peoples Article 21. Right to development
xiii
International Labour Organization Convention 169 (1989) Article 6. Article 15 requires consultation
in the context of exploration or exploitation of sub soil resources.
xiv
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Rodolfo Stavenhagen, Report 2003 para 13
xv
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission resolution
2001/65 (Fifty ninth session), U.N. Doc. E/CN.4/2003/90, January 21, 2003, para 66
xvi
James Anaya Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural
Resource Extraction: The more Fundamental Issues of what right Indigenous Peoples have in Lands
and Resources 22 (2005) Arizona Journal of International and Comparative Law p17 ‘Where property
rights are affected by natural resource extraction, the international norm is developing to also require
actual consent by the indigenous peoples concerned’ see also F MacKay Indigenous Peoples rights and
Resource Exploitation Vol 12 no 1 (December 2004) Philippines Natural Resources Law Journal p58
xvii
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, S. James Anaya Addendum A/HRC/9/9/Add.1 15 August 2008 Annex 1 p
9
xviii
Erica-Irene Daes was a Special Rapporteur of the former Sub-Commission on Prevention of
Discrimination and Protection of Minorities. See Erica-Irene Daes Indigenous Peoples’ permanent
Sovereignty over Natural Resources E/CN.4/Sub.2/2004/30/Add.1 page 25 para 7
xix
Proposal No 2 of the Experts Mechanism to the Human Rights Council in relation to HRC resolution
L/17 Draft copy on file with author.
xx
Programme of Action of the Second International Decade of the World Indigenous Peoples Objective
(ii) ‘Promoting full and effective participation of indigenous peoples in decisions which directly or
indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous
peoples with collective rights or any other aspect of their lives, considering the principle of free, prior
and informed consent’
xxi
ICMM Position Statement Mining and Indigenous Peoples issued May 2008 available at
http://www.icmm.com
xxii
Mine Certification and Evaluation Project Final Report January 2006 p7, 33 available at
http://www.minerals.csiro.au/sd/Certification/MCEP_Final_Report_Jan2006.pdf
xxiii
Free Prior Informed Consent : the role of mining companies Oxfam Australia Febuary 2007
available at http://www.oxfam.org.au/campaigns/mining/ombudsman/consent.html
xxiv
European Bank for Reconstruction and Development (EBRD) Environmental and Social Policy
issued May 2008 available at http://www.ebrd.com/about/policies/enviro/policy/2008policy.pdf There
appears to be some ambiguity in the EBRD definition of consent with a footnote in the policy linking it
to involvement in, rather than authorization of, a project, it states ‘Consent refers to the process
whereby the affected community of Indigenous Peoples, arrive at a decision, in accordance with their
cultural traditions, customs and practices as to whether to become involved in the proposed project’
xxv
Operational Policy on Indigenous Peoples and Strategy for Indigenous Development Inter-American
Development Bank Washington, D.C. Sustainable Development Department Sector Policy and
Strategy Series OP-765 July 2006 Page 5
xxvi
Asian Development Bank The Safeguard Policy Statement (Second Draft) October 2008 p11-12, 19
xxvii
IFC Performance Standard No 7, World Bank Operational Policy on Indigenous Peoples no 4.10…
xxviii
See F MacKay ‘The Draft World Bank Operational Policy 4.10 on Indigenous Peoples Progress or
more of the same?’ 22 (Spring 2005) Arizona Journal of International and Comparative Law p81
xxix
Office of the Compliance Advisor/Ombudsman (CAO) IFC and MIGA, World Bank Group
Advisory Note ‘IFC’s Policy and Performance Standards on Social and Environmental Sustainability
and Disclosure Policy, Commentary on IFC’s Progress Report on the First 18 Months of Application’
December 17, 2007
xxx
Statements made by indigenous leaders, organizations and community representatives from
throughout the world demanding respect for FPIC at various international fora are available at
www.docip.com
xxxi
Statement by the Chairman, Global Indigenous Caucus, Les Malezer, 13 September 2007 on the
adoption of the UN Declaration on the Rights of Indigenous Peoples
10