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.

Can free, prior and informed consent support reconciliation between indigienous peoples and the state in multicultural societies [THESIS]
A Beales
City University of London Doctoral Thesis, 2021
Abstract
The United Nations Declaration on the Rights of Indigenous Peoples has been hailed as a ‘framework for reconciliation’ on which states and indigenous peoples can build harmonious relationships. However, during the negotiations of UNDRIP’s text, some argued that its impact would be constrained by the adoption of a cultural rights framework over an unambiguous recognition of the right to self-determination.

This thesis investigates the implementation of a key provision of UNDRIP: the requirement on states to consult with indigenous peoples in order to obtain their consent before approving measures or policies that would impact on indigenous rights, asking whether weak interpretations of indigenous self-determination under a multicultural model of rights are constraining the reconciliatory potential of prior consultation. It provides a theoretical analysis of prior consultation, drawing from indigenous critiques of human rights based multiculturalism and western theories of dispute resolution, and applying a decolonial theoretical framework. The theoretical analysis is grounded in case studies that illustrate how prior consultation is being implemented in Peru and Canada.

This thesis concludes that two different conceptualisations of FPIC have emerged: the ‘general rule’ approach, which is based on the right to self-determination and generally favoured by indigenous peoples; and the ‘multiculturalist approach’, which views FPIC as a facet of multicultural democracy. This latter approach is generally favoured by states, whose practice in this regard will shape the future development of FPIC as an international legal norm. However, this ‘multiculturalist approach’ is unlikely to lead to reconciliation because it constrains indigenous self-determination within a colonial imbalance of epistemic, political and economic power that overwhelmingly benefits the state.

In contrast, this thesis puts forward a dispute resolution approach which reimagines prior consultation as a duty to forge consensus. Such an approach, based on mutual respect and collaboration between peoples, may be more likely to contribute to reconciliation because it sidesteps commonly-held concerns that indigenous consent will be wielded as a unilateral right of veto, and recognises indigenous self-determination more fully. Viewing prior consultation through the lens of dispute resolution also suggests that mediation may offer a range of tools to counterbalance structural disadvantages that indigenous peoples face within the prior consultation process and encourage a more genuine intercultural dialogue.

Regulation of Natural Resources Located in Indigenous Communities Territory under the Principles of Consultation and Free, Prior-Informed Consent: Perspectives in Selected Countries
John S. Ombella
African Journal of International and Comparative Law, November 2021; 29(4)
Abstract
Natural resources have long been said to be under the sovereign ownership of the states in whose borders they are found. Sovereignty grants such a state not only the ownership but also the power to regulate their access and use. States’ inability to convert the resources into tangible socio-economic development has witnessed massive contractual agreements with multinational companies to harness the same. Multinational companies and state contractual arrangements seem to have ignored other potential stakeholders like communities dependent on natural resources for their survival. Consequently, communities such as those of indigenous peoples who depend on available natural resources like rivers, lakes, forests and other ecological resources are victimised in the state-multinational contractual arrangements and implementation. Internationally, principles such as consultation and free and prior-informed consent seem to regulate access and use of resources located in indigenous communities. This article shows how such principles guarantee the indigenous communities their existence in cases of large-scale development in their territory.

Renewable energy development on the Indigenous Estate: Free, prior and informed consent and best practice in agreement-making in Australia
Lily O’Neill, Kathryn Thorburn, Bradley Riley, Ganur Maynard, Esmé Shirlow, Janet Hunt
Energy Research & Social Science, November 2021; 81
Abstract
    In Australia, large-scale renewable energy projects are being developed or proposed on lands over which First Nations hold rights and interests. Our review of the literature on renewable energy and First Nations peoples globally indicates that renewable energy projects are likely to present risks in the distribution of socio-economic and environmental impacts, as well as significant opportunities for First Nation benefit. This paper explores the conditions under which First Nations people with communal property rights and interests in their traditional land are likely to derive benefit from large scale renewable energy projects.

We examine ‘free, prior and informed consent’ (FPIC), a widely-recognised international human rights standard that sets out a consent, information and consultation framework for proposed developments on First Nation land. In calling for the just economic inclusion and participation of First Nation people in large-scale renewable energy projects we propose that ‘free, prior and informed consent’ offers a suitable framework for approaching the development of these projects. Furthermore, we detail what is best, and worst, practice in agreement making, based on previous First Nations agreement making experience, predominately with the resource extraction sector.

Engaging Free, Prior and Informed Consent for Mutual Benefit
Rudolph C. Rÿser
Fourth World Journal, Summer 2021; 21(1) pp 98-143
Abstract
The Center for World Indigenous Studies, prompted by inquiries and urgings by leaders of indigenous nations, sponsored the planning, organization and convening of a Congress of Nations and States–the process that began in the summer of 2019. In this article we discuss the Congress as a new international mechanism to facilitate engagement by indigenous nations and states on an equal political plain in pursuit of comity and establishment of cooperative measures for mutual benefit. This article discusses the consequences of the failure of decolonization advanced by the United Nations in 1945 that resulted up to 1.9 billion people from indigenous nations left without their consent inside the boundaries of existing states contributing to social, economic, political and security conflicts demanding relief. More than 5000 nations occupy territories and political space inside states with the states’ claiming those territories and competing for political space by asserting state sovereignty. The article presses forward by emphasizing the importance of the principle of free, prior and informed consent responding to the long list of principles and commitments in the policy areas of economics, environment, culture & society, political governance, security, and justice made by nations and states since 1977. I suggest that existing agreements on principles and commitments if implemented by nations and states may resolve most of the current conflicts. Specific principles and commitments are discussed and sourced to treaties, conventions, declarations, and outcome documents issued by nations and states from 1977 forward.

Editor’s note: The Fourth World Journal is published by the Center for World Indigenous Studies.