Global CSR Monitor - Free, Prior and Informed Consent of Indigenous Peoples

Free, Prior and Informed Consent in International Law

The General Assembly of the United Nations have adopted in September 2007 the Declaration on the Rights of Indigenous Peoples. Since the Declaration is soft law, it is not legally binding on States, but the standards that it recognizes could, if they become part of the consistent conduct of States acting out of the belief that the law requires them to act that way, become customary law.

The Declaration contains a long preamble and 46 articles. Amongst those articles, two are particularly important and have generated strong debates. Article 3 of the Declaration stipulates that indigenous peoples have the right to self-determination and article 32, paragraph 2, says that "States shall consult and cooperate in good faith with the indigenous peoples concerned (.) in order to obtain their free and informed consent prior to the 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."

The Canadian government has not yet endorsed the Declaration. It has expressed its reservation regarding article 32 because it could have the effect of giving a veto to Aboriginal peoples, although it has announced recently plans to endorse the Declaration, in line with the Canadian constitution and law1.

This concept of Free, Prior and Informed Consent (FPIC) is one of a number of indigenous rights that are specifically enumerated in international documents. FPIC has to be distinguished from the right of indigenous peoples to be consulted and involved in decisions regarding development...