In the Americas, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have considered the FPIC principle. Inter-American human rights law in general requires “special protection” to ensure recognition of the collective interest that indigenous people have in the ownership and use of their traditional lands and resources. Both the Commission and the Court have considered FPIC in relation to resource development projects. Their decisions find that FPIC is mandatory in regard to actions by a State that will have an impact upon indigenous lands and communities, such as the granting of concessions to develop the natural resources of indigenous lands.
Similarly, the European Community’s Council of Ministers adopted a Resolution providing that “indigenous peoples have the right to choose their own development paths, which includes the right to object to projects, in particular in their traditional areas.” The right to FPIC is repeated in many statements by international institutions including the World Bank Group, and has been incorporated into the domestic laws of many countries as well.
What does FPIC mean?
The principle of FPIC does not have an internationally accepted definition, even though it is embedded in the legal framework of international human rights. While participation and consultation are key concepts that are universally recognized, the implementation of the FPIC principle has been inconsistent and has, in the eyes of many indigenous groups, generally failed to provide for adequate protection of their interests.
The requirement that consent be “free” has been interpreted to mean that community decision-making and information-gathering must not be tainted by threat, manipulation, or unequal bargaining power. The term “prior” means that consent must be pursued sufficiently in advance of any development decisions made by the government and before the proposed activity commences. “Informed” consent implies that there must be full and accurate disclosure of the anticipated risks and benefits of a proposed development in a form that is accessible and understandable to the affected population.
The major focus of disputes over the meaning of FPIC is the definition of “consent.” Many believe that FPIC does not give communities absolute veto power over a proposed project. Six articles in the recently adopted Declaration on the Rights of Indigenous Peoples make explicit reference to FPIC, but whether consent can be withheld to stop a development project is unclear.
The Future of FPIC
While debate continues over the parameters of the right of free, prior, and informed consent, the debate has moved beyond the question of whether local people- especially indigenous people- should have the right to be consulted and to participate in decisions that affect their lands and their environment.
Local community votes, if fairly conducted on a level playing field, can serve as an important tool in determining the views of local people and contribute to the goal of free, prior and informed consent.
- 2003 Report of the U.N. Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People.