“Free, Prior and Informed Consent (FPIC) is one of the most important principles that Indigenous Peoples believe can protect their right to participation. It is embedded in the right to self-determination. The duty of States to obtain Indigenous Peoples’ FPIC entitles Indigenous people to effectively determine the outcome of decision-making that affects them, not merely a right to be involved.” UN Expert Mechanism on the Rights of Indigenous Peoples
(Left to right) Grand Chief Edward John, Stella Tamang, Vincent Nmehielle, Nicole Friederichs
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 Meaning of FPIC
“In plain terms, FPIC is knocking on somebody’s door and asking for permission before you come in,” explains Grand Chief John. A central element of FPIC is genuine inclusion, disclosure, and respect for Indigenous Peoples decisionmaking processes. “Many times Indigenous Peoples are accused of being anti-development, but the only claim Indigenous people are making is that they really want to be part of the decision-making,” maintains Tamang. After centuries of exclusion, dispossession, and discrimination, Indigenous people want their voices heard. Under current international law, governments are obligated to consult Indigenous communities before any development affecting their lands and resources takes place, and even more broadly, any decisions directly affecting Indigenous Peoples and their self-determination require their consultation and consent. The final study on Indigenous Peoples and the right to participate in decision-making by the UN Expert Mechanism on the Rights of Indigenous Peoples advises on the proper implementation FPIC: “The element of ‘free’ implies no coercion, intimidation or manipulation; ‘prior’ implies that consent is obtained in advance of the activity associated with the decision being made, and includes the time necessary to allow Indigenous Peoples
to undertake their own decision-making processes; ‘informed’ implies that Indigenous Peoples have been provided all information relating to the activity and that that information is objective, accurate and presented in a manner and form understandable to Indigenous Peoples; ‘consent’ implies that Indigenous Peoples have agreed to the activity that is the subject of the relevant decision, which may also be subject to conditions.” Nmehielle, who is an Indigenous rights lawyer and international law professor, elaborates. “FPIC is a concept based on autonomy of the individual. Indigenous Peoples’ rights have been so violated in the past by those who felt they knew what’s best for Indigenous Peoples, it becomes a concept to allow them to make the decision on their own as to whether a project or action is beneficial to them. It’s like taking a referendum: do we really want this or not? We want to make sure Indigenous Peoples are not taken for granted, are consulted regularly, and make decisions based on what they know to be true—the positives and negatives about the particular initiative that affects them. That is the bottom line.” Friederichs, a law school clinician, adds, “When you are talking about FPIC, you are talking about the broader duty to consult and then the overarching principle of participation. The way I read the Declaration is that states have a duty to consult with Indigenous Peoples and the goal of consultations should be to obtain their FPIC. Participation is about remedying centuries of denying Indigenous Peoples access to decision-making that was happening without their voice at all. This is a way to make sure that the states recognize they have an obligation to actually bring Indigenous people to the table and listen to them.” A Process Right vs. Substantive Right
As Grand Chief John sees it, “FPIC is a right. It’s not simply a concept; it is a right to [a] process. In many cases the natural Cultural Survival Quarterly
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