The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law

Abstract

The right of \t\t\t\t\tindigenous peoples to free, prior, and informed consent (FPIC) in relation to \t\t\t\t\tdevelopment, infrastructure, and resource extraction projects is currently \t\t\t\t\tbeing debated within international law. \t\t\t\t\tParticularly contentious is the question of whether the right to FPIC is \t\t\t\t\tan existing customary international legal principle and if so, whether this \t\t\t\t\tconstitutes a full veto right for the affected peoples. This article examines this question by \t\t\t\t\tanalyzing the development of FPIC within international law and applying the \t\t\t\t\tcurrent international standards to two distinct case studies. The first is the Lubicon Cree in Alberta, \t\t\t\t\tCanada, and the second is that of the Mayan Communities of Sipakapa and San \t\t\t\t\tMiguel Ixtahuacan, Guatemala. \t\t\t\t\tUltimately, these two cases demonstrate how similar violations of \t\t\t\t\tindigenous peoples rights can occur in two very different contexts.\nWhile the most explicit expression \t\t\t\t\tof FPIC is found in the United Nations Declaration on the Rights of Indigenous \t\t\t\t\tPeoples, by examining the jurisprudence of the United Nations Human Rights \t\t\t\t\tsystem, International Labour Organisation Treaty system, and Inter-American \t\t\t\t\tHuman Rights system, it is clear that the various treaty bodies are \t\t\t\t\tinterpreting existing rights to culture, property, and non-discrimination as \t\t\t\t\tthe right of indigenous peoples to participate in decisions that impact their \t\t\t\t\tlands or resources. Although it is clear \t\t\t\t\tthat as of yet the right to full FPIC is not part of customary international \t\t\t\t\tlaw, there is a well-defined consensus that States at a minimum have an \t\t\t\t\tobligation to consult with indigenous peoples in good faith with regard to any \t\t\t\t\tprojects found within their lands or which impact traditionally used resources.\nFurthermore, this analysis, which \t\t\t\t\tconsists of both of the above-mentioned case studies and international human \t\t\t\t\trights jurisprudence, highlights the extent of the gap that exists between the \t\t\t\t\tstandards being developed and current State practice. In the end, this article finds that in order \t\t\t\t\tto effectively implement the FPIC and other participation rights, consultations \t\t\t\t\tmust be recognised as expressions of the right to self-determination and not \t\t\t\t\tmerely as administrative procedures.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 95 citations exist upstream.