Free, Prior, and Informed Consent, A Norm in Development or a Corporate Obligation?
Laurence Klein, María Jesús Muñoz-Torres, María Ángeles Fernández-Izquierdo
International Journal on Minority and Group Rights, 27 Feb 2024
Abstract
Free, Prior, and Informed Consent (fpic) is crucial for the exercise of indigenous peoples’ right to self-determination, a binding human rights norm, as it provides them with the opportunity to determine how their lands and resources are developed. While numerous companies have committed to respecting fpic in their corporate policies, there continues to be a huge disconnect between public rhetoric and actions on the ground, and indigenous peoples generally struggle to have a meaningful voice in decision-making processes that concern them. Even if the United Nations Guiding Principles on Business and Human Rights (ungp, 2011) have compelled companies to gain ground with regards to their responsibility to respect human rights, the ‘do-no-harm’ principle does not require them to take positive actions towards fulfilling human rights. This approach is inconsistent with the moral foundation of human rights, which implies duties, and does not account for the substantial economic and political power that increases companies’ potential as guarantors of human rights. Based on the normative and moral legitimacy sustaining the narrative on corporate human rights obligations and the political, moral and legal imperative behind fpic, this article asserts that companies have a normative obligation to observe fpic, which they ought to operationalise in the context of heightened requirements regarding their human rights due diligence.

Free prior informed consent in the extractive industry: Approaches to involving Indigenous peoples in decision-making in Russia
Research article
Yakovleva, T.N. Gavrilyeva, A.I. Makarov, N.A. Krasilnikova
Journal of Environmental Management, 15 October 2023
Abstract
Free prior informed consent is a principle for consulting, cooperating, and obtaining consent from Indigenous peoples through their representative institutions on matters affecting them. It is promoted by the United Nations Declaration on the Rights of Indigenous Peoples, which calls on nations to strengthen the civil, political, and economic rights of Indigenous peoples by securing their rights to land, minerals, and other natural resources. Extractive companies have been developing policies to address Indigenous peoples’ concerns as part of legal compliance and voluntary actions under corporate social responsibility. The lives and cultural heritage of Indigenous peoples are continuously affected by operations of extractive industries. This is notable in the Circumpolar North, where Indigenous peoples have developed sustainable resource use practices in fragile natural environments. In this paper, we examine corporate social responsibility approaches to implementing free prior informed consent in Russia. We investigate how public and civil institutions influence the policies of extractive companies and their impact on Indigenous peoples’ self-determination and participation in decision-making.

Canadian experience with Indigenous free, prior and informed consent in resource development
David Bursey, Claire Lingley, Christina Joynt
Australian Environment Review, 1 May 2023
Abstract
This article reviews the Canadian experience with government efforts to reconcile Indigenous and Crown governance rights in resource development decisions. The specific focus of this review is on how the concept of free, prior and informed consent (‘FPIC’) is working its way from the pages of the ‘United Nations Declaration of Rights of Indigenous Peoples’ (‘UNDRIP’) into Canadian law and policy. As explained later, the policy approaches have been incremental, building on Canada’s existing Aboriginal rights framework. We also offer perspectives on how those involved in resource development are adapting their approach to relations with local Indigenous communities. To give the discussion context for the Australian reader, we begin with a brief summary of the Canadian legal framework for Indigenous rights, as well as the efforts to implement UNDRIP.

Editor’s note: The ‘United Nations Declaration of Rights of Indigenous Peoples’ (‘UNDRIP) is available here: https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples

The evolution and development of the principle of free, prior and informed consent in South Africa
Original Article
Naledzani Mukwevho
South African Journal on Human Rights, 27 June 2022
Abstract
This article traces the evolution of the principle of free, prior and informed consent within the South African developmental context. Internationally, free prior and informed consent presupposes that communities have the right to give or withhold consent to proposed development projects on the lands that they own, occupy or otherwise use. Specific to South Africa, research reveals that although the country has not formally adopted the free, prior and informed consent principle within its development system, the spirit of the principle has permeated the development discourse in the country through development policies, legislation and case law. All major development policies in South Africa embody the public participation element, which is a precursor to free, prior and informed consent. Several Acts of parliament specifically require that communities’ consent must be sought and obtained before any development may take place in their territories. This sentiment has recently been augmented by court cases, both at High Court and Constitutional Court levels.

The Extraction Industry in Latin America and the Protection of Indigenous Land and Natural Resource Rights: From Consultation Toward Free, Prior, and Informed Consent
Kylah Staley
Hastings Law Journal, May 2022; 73(4)
Open Access
Abstract
Resource extraction and exploitation threaten the survival of Indigenous and tribal peoples, who are amongst the most marginalized communities in the world. This is both a human rights issue and an environmental issue. There are around 300 million people that make up Indigenous communities worldwide, the majority of whom live in forests. Furthermore, Indigenous customary lands contain 80% of the world’s biodiversity. Traditionally, Indigenous communities have been stewards of their lands, where they regard the land as means for their own physical, spiritual, and cultural survival rather than a commodity to be exploited. The only protection Indigenous Peoples have against resource extraction in international law, under the Indigenous and Tribal Peoples (ILO) Convention 169, is the right to consultation and participation. Effectively, Indigenous communities have limited decision-making power in this context. This narrow protection of Indigenous Peoples’ lands and natural resources under ILO Convention 169 is inadequate and informed by a colonial past. For there to be adequate protections of Indigenous Peoples’ land and resource rights, Indigenous Peoples must hold actual decision-making power, not just participatory power. Free, prior, and informed consent (FPIC) is the principle and right that is critical to safeguarding Indigenous lands and resources as it is grounded in the foundational right of self-determination. Thus, I argue operationalizing FPIC would provide a comprehensive protection of Indigenous rights by ensuring that affected Indigenous communities (1) design the procedures for obtaining their consent (2) retain negotiating power and (3) actually agree to proposed projects.

Principle of Free, Prior and Informed Consent as a Resolution of Land Conflicts Between Oil Palm Plantation Companies and Indigenous Peoples in Kampar Regency
Rahmad Hendra, Firdaus Firdaus, Samariadi Samariadi
Advances in Social Science, Education and Humanities Research, 2021; 659
Open Access
Abstract
The research was conducted in Bencah Kelubi Village and Subarak Village. In both villages there are oil palm plantation companies. In Subarak Village, oil palm plantation investors implement the principle of free, prior and informed consent (FPIC) at the beginning before the start of investment, while in Bencah Kelubi Village the oil palm plantation companies that make investments do not follow the FPIC principle. The writing method used by the author is descriptive analysis with a qualitative research pattern. The author found that FCPIC is significantly reduces the conflict between oil palm plantation companies and indigenous peoples.

Free prior and informed consent and Indigenous rights: a bulwark against discrimination and platform for self-determination
Book Chapter
Cathal Doyle
Research Handbook on the International Law of Indigenous Rights, 12 April 2022; pp 96-128 [Edward Elgar]
Abstract
This chapter examines the development of free prior and informed consent (FPIC) norms in the international law of Indigenous rights. The first section traces the international law lineage of FPIC from initial colonial encounters through to contemporary Indigenous rights instruments. The second part probes more deeply into the cotemporary concept of FPIC based on extensive jurisprudence and recommendations, linking FPIC to self-determination and non-discrimination. The third part provides some perspective on state measures undertaken to implement FPIC and closes with attention to roles taken up by Indigenous peoples themselves in doing so.

Free, Prior and Informed Consent in Kenyan Law and Policy After Endorois and Ogiek
Nqobizitha Ndlovu, Enyinna S Nwauche
Journal of African Law,  14 March 2022
Abstract
This article examines the Kenyan legal and policy framework as well as jurisprudence on the principle of free, prior and informed consent (FPIC) occasioned by the decision of the African Commission on Human and Peoples’ Rights (African Commission) in Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Republic of Kenya (Endorois) and the judgment of the African Court on Human and Peoples’ Rights (African Court) in the case of African Commission on Human and Peoples’ Rights v Republic of Kenya (Ogiek). The main objective of this article is to examine the development and level of operationalization of the principle of FPIC in Kenyan domestic law and policy using the Endorois and Ogiek standard. It examines how the Kenyan domestic legal system has responded to these regional and international developments on FPIC and its operationalization.

Indigenous agency through normative contestation: Defining the scope of free, prior and informed consent in the Russian North [BOOK CHAPTER]
Marina Peeters Goloviznina
Indigenous Peoples, Natural Resources and Governance, 2021 [Routledge]
Abstract
This chapter explores how obshchiny, the most numerous grassroots Indigenous peoples’ organizations in contemporary Russia, deal with the challenge of exercising their right to free, prior and informed consent (FPIC). The study nuances our understanding of the agency of obshchiny, drawing much-needed attention to their practices of making a difference in the governance of extractive activities at the local level through FPIC. The analysis explores normative contestation practices of a family-based obshchina in the Sakha Republic (Yakutia), focusing on their members’ efforts to enhance their rights to FPIC in relations with a gold mining company. Despite the obshchina’s inferior position in asymmetrical power relations with the mining company, the study shows that assistance from the Ombudsman for Indigenous Peoples’ Rights can increase the obshchina’s chances of maximizing the benefits of negotiations with the company.