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Background The obligation to provide indigenous peoples with the opportunity to give their free, prior and informed consent to activities and legislation that may impact their lands and/or populations stems from a variety of sources. FPIC, grounded in indigenous peoples’ right to their lands, territories, resources, and self-determination, has been formally recognized by the UNDRIP, the Inter-American Court of Human Rights (IACHR), and constitutional courts in many countries. Thus, FPIC is increasingly considered to be customary international law even in countries where the right is not specifically enumerated or which have not ratified applicable conventions.(1) As momentum recognizing FPIC and the rights it is derived from continues to build, it will become legally binding in all countries.(2) FPIC is also provided for in other international conventions, a notable one being International Labour Organization Convention 169 (ILO 169). Article 6 of ILO 169 requires that indigenous peoples be consulted on measures that directly affect them,(3) while Article 7 “recognizes indigenous peoples’ right to decide their own priorities for the process of development,” and to “exercise control to the extent possible, over their own economic, social, and cultural development.”(4) The ILO has also issued a guide to provide a practical tool for implementing the FPIC rights contained in the Convention. Although the ILO Convention has not been ratified by every country, the tools it provides for implementing FPIC are based on generally recognized international legal principles of participation and self-determination. It is important to note that internationally protected rights to FPIC are most vital when domestic statutory law is inadequate and where local governance and enforcement is weak. In these contexts, the exercise of the right to FPIC is meant to ensure that all indigenous rights are protected. The Convention on Biological Diversity (CBD) is another international treaty that recognizes and accepts a version of FPIC by providing that, subject to its national legislation, a party should “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”(5) Almost 200 countries have signed and ratified the CBD and are thus bound by this provision. The Secretariat of the CBD also adopted voluntary guidelines to assist parties in incorporating “cultural, environmental and social considerations of indigenous and local communities into new or existing impact-assessment procedures.”(6) These guidelines provide an outline of the steps that should be included in any environmental assessment being conducted when developments are taking place on or are likely to impact indigenous lands or waters that are related to biodiversity. A number of countries have passed laws or have jurisprudence that reference FPIC rights in some form. For example, the Constitution of Venezuela contains a provision requiring that native communities be consulted and provided with information prior


to state exploitation of natural resources in native habitats.(7) The Constitutional Court of Colombia has issued several rulings ordering the suspension of development projects, or declaring legislation unconstitutional because of a lack of prior consultation with indigenous peoples.(8) However, few countries have adopted measures, protocols or guidelines that establish how FPIC will work in practice. The Philippines and Peru have both passed legislation requiring FPIC. (9) (10) The Philippines has passed an administrative order detailing the steps that must be followed to ensure this right.(11) Nevertheless, as will be discussed below, there have been significant problems implementing these measures. A limited number of indigenous groups have also developed their own protocols, including the Guna of Panama and the indigenous peoples of Paraguay. In addition to national and international laws, FPIC protocols and guidelines have been incorporated into the policies of a number of intergovernmental organizations and financial institutions, such as the World Bank and the UN, to ensure that their programs and development projects respect indigenous FPIC rights. Such standards often apply to governments, companies, and other entities who are engaged in the institution’s development programs. For example, the World Bank’s International Finance Corporation (IFC) has developed Performance Standards for Indigenous Peoples that include the requirement that World Bank clients engage in prior consultation with indigenous peoples.(12) Similarly, various UN programs incorporate FPIC. The UNREDD program has drafted a set of FPIC guidelines to be followed in the context of designing and implementing national REDD programs.(13) The Inter-American Development Bank and the European Bank for Reconstruction and Development have also developed FPIC guidelines in relation to projects that they finance or co-finance. Finally, given the evolving legal norms and potential impact on their reputations, certain companies and industry groups have voluntarily begun to incorporate FPIC principles into their internal corporate policies and procedures. These include the Roundtable on Sustainable Palm Oil and certain companies within the mining sector. (14) The World Resources Institute published a report in 2007 that makes a business case for FPIC, arguing that extractive companies incur greater long-term costs if they operate without the consent of affected communities.(15) Although the number of FPIC protocols is limited, this report will draw from certain examples (16) to illustrate the provisions included in such documents and will analyze the strengths and weaknesses of these protocols. It will also provide an assessment, where available, of how these protocols have worked to protect indigenous peoples’ FPIC rights.

Turning Rights into Reality: Issues to Consider in Implementing the Right to Free, Prior, and Informed Consent

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FPIC: Turning Rights Into Reality