Free, prior, and informed consent (FPIC) is a right of Indigenous peoples, recognized under international law, which derives from the right of self-determination; the right to freely pursue economic, social, and cultural development; and individual human rights. Its status as a right has been affirmed by various human rights bodies and relevant jurisprudence.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN’s General Assembly in 2007. UNDRIP explicitly mentions the right of FPIC in the following circumstances:
- before relocation (Article 10)
- prior to the use of Indigenous peoples’ cultural, intellectual, religious, and spiritual property (Article 11)
- prior to implementation of legislative or administrative measures that could affect Indigenous peoples (Article 19)
- prior to use of lands (Article 28)
- prior to storage or disposal of hazardous materials on Indigenous peoples’ lands (Article 29)
- prior to state 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” (Article 32)
As a resolution of the General Assembly, UNDRIP is an international political statement. It carries moral force and has become a policy framework in several countries. National laws are required in individual countries to give it legal force in jurisdictions which have adopted it. However, many countries do not recognize Indigenous Peoples (or only recognize some) and so circumvent FPIC in this manner.
In 1989, the International Labour Organization (ILO) adopted the Indigenous and Tribal Peoples Convention (also known as Convention 169), which acknowledges the right of Indigenous peoples to be consulted when they would be impacted by development projects and “whenever consideration is being given to legislative or administrative measures which may affect them directly” (Article 6, paragraph 1a.) ILO 169 requires that these consultations have to be carried out in good faith and that the “objective of these consultations should be agreement or consent” (Article 6, paragraph 2). Article 16 specifically requires “consent” prior to relocation. ILO 169 has treaty status and legally binding document for the 23 countries that have ratified it.
Other Policies and Definitions
Several other voluntary mechanisms exist which require companies to consult and seek consent when projects affect the rights of Indigenous peoples, such as:
- Investor requirements, as in the case of the International Finance Corporation’s (IFC) Performance Standard 7, the Equator Principles, or the Green Climate Fund.
- Industry associations, such as the International Council on Mining and Minerals’ (ICMM) position statement on Indigenous peoples and mining and associated assurance requirements.
- Voluntary corporate policies
- Participation in voluntary certification schemes, such as Initiative for Responsible Mining Assurance (IRMA)
It is important to note that while several companies have made public commitments to FPIC, either in their policies or on their websites, they may not have clear internal guidance on how to implement FPIC. This Guide seeks to strengthen such implementation.