Indigenous agency through normative contestation: Defining the scope of free, prior and informed consent in the Russian North [BOOK CHAPTER]

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]

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

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

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

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.

Free, Prior, and Informed Consent: A Struggling International Principle

Free, Prior, and Informed Consent: A Struggling International Principle
Emily M. McCulloch
Public Land & Resources Law Review, June 2021; 44(5)
Open Access
Excerpt
Global development diminishes the voices of indigenous populations around the world. Resource extraction and commercial use threaten even the most isolated groups. In an effort to develop enforceable rights for indigenous peoples, the United Nations Declaration of the Rights of Indigenous Peoples sought to protect indigenous peoples through the principle of the Free, Prior, and Informed Consent (“FPIC”). This paper focuses on why the FPIC is struggling to take hold in the international community.

The right to free, prior, and informed consent (FPIC): Reflections on experiences of two Indigenous communities in northern regions of Canada and Chile [BOOK CHAPTER]

The right to free, prior, and informed consent (FPIC): Reflections on experiences of two Indigenous communities in northern regions of Canada and Chile [BOOK CHAPTER]
Terry Mitchell, Courtney Arseneau, José Aylwin, Darren Thomas
Decolonizing Law [Routledge 2021]
Abstract
In this chapter, we focus on the ongoing pressures faced by Indigenous communities in responding to growing global investments in extractive activities such as mining. In highlighting the obligations of states and businesses to adhere to consultation processes and practices of the right to free, prior, and informed consent (FPIC), we provide a comparative analysis of the barriers faced by Indigenous Peoples in mining affected communities in northern Ontario (Canada) and in northern Chile. We also call attention to the extraterritorial responsibilities of Canada’s mining investments in Chile, presenting the situation of global extractive practices as a new wave of colonialism known as extractive imperialism. We share reflections from our work across the two case study sites, including a workshop that brought together leaders from both regions to share experiences, strategies of resistance, and Indigenous perspectives of consultation and FPIC from across the Americas. We discuss key Pan-American findings of (1) a lack of consultation and information; (2) inducement and division; and (3) environmental impacts as parallel experiences across both regions. We conclude with reflections on decolonial approaches to consultation and policy recommendations for the implementation of FPIC and the monitoring of Indigenous rights in Canadian mining activities across the Americas.

Who Are the Métis? The Role of Free, Prior and Informed Consent in Identifying a Métis Rights-Holder [BOOK CHAPTER]

Who Are the Métis? The Role of Free, Prior and Informed Consent in Identifying a Métis Rights-Holder [BOOK CHAPTER]
Karen Drake
Indigenous-Industry Agreements, Natural Resources and the Law [Routledge 2020]
Abstract
Using free, prior and informed consent as a framework for analysis, this chapter explores issues related to the communities involved in Indigenous-industry agreements by relying on the particularly poignant experience of the Métis. A major issue that Indigenous-industry agreements encounter is the identification of the Indigenous party to the agreement. This chapter analyzes bases for identifying the Métis rights-holder for the purposes of consultation and consent. It argues that the Métis Nation of Ontario has developed an approach to consultation and that approach ensures that the Métis Nation of Ontario’s consent to Indigenous-industry agreements is fully informed. This approach also responds to some of the questions that impact Indigenous-industry agreements including questions regarding persons who qualify as rights-holders and to whom the duty to consult and accommodate is owed, how to determine the geographic scope of the rights-holder, and persons who are entitled to represent the rights-holder during consultation about the right.

Our land is banked: forest rights, consent and the invention of a legal exception as land banks

Our land is banked: forest rights, consent and the invention of a legal exception as land banks
Arpitha Kodiveri
International Journal of Human Rights, 3 February 2021
Abstract
Land banks are a newly created administrative mechanism managed by the Odisha Industrial and Infrastructure Corporation (IDCO) and the Revenue and Disaster Management Department. Their purpose is to provide large parcels of land to industries with minimal procedural hassles in the acquisition. Thus, the administrative authorities put in place an intricate web of legal interpretations that enable it to bypass due process requirements. The legal landscape in India’s forests transformed with the passing of the Forest Rights Act,2006 in the direction of democratisation and participation of forest-dwelling communities. An essential part of this legal framework was the right to free, prior, and informed consent of the village assembly. In this paper, through case studies and examples I argue that a space of exception is created within the law through the mechanism of land banks to prevent the applicability of the consent provision. This sophisticated legal interpretive exercise by the administrative authority results in the violation of the human right to free, prior, and informed consent of forest-dwelling communities in Odisha.

Indigenous Peoples’ Free, Prior and Informed Consent (FPIC) and the World Bank Safeguards: Between Norm Emergence and Concept Appropriation

Indigenous Peoples’ Free, Prior and Informed Consent (FPIC) and the World Bank Safeguards: Between Norm Emergence and Concept Appropriation
Stéphanie de Moerloose
World Comparative Law, 2020; 53(3) pp 223-244
Abstract
The question of the consent of indigenous peoples is at least as old as colonization. Indeed, the consent of indigenous peoples was already an issue at the heart of treaty-making between colonial settlers and indigenous peoples. The issue of indigenous peoples’ consent, understood as their Free, Prior and Informed Consent (FPIC), has been re-emerging and gaining acceptance internationally in international Human Rights law over the last 30 years. When the new World Bank safeguards were adopted in 2016, one of the most discussed topics during the consultation rounds had been the integration in the safeguards of the concept of the FPIC of indigenous peoples, as it had been notoriously absent from the previous safeguards. Finally, FPIC was made part of the new safeguards. This paper first maps the concept of FPIC under international law from a postcolonial perspective. Then, it attempts to analyze the processes of operationalization of the concept by the World Bank in the new safeguards, drawing on Human Rights and on law and development literature. The paper argues that there is a tension between the re-emergence of FPIC as a customary norm and the fragmentation of the interpretations of the concept of consent by different actors.  The operationalization of the concept of FPIC, understood as a negotiated process rather than a process of self-determination, may in fact limit its remedial objective and diminish its quality as a resistance tool.