Free, prior and informed consent

3. Free, prior and informed consent

The adoption of legislation or administrative policies that affect indigenous peoples (article 19)

The undertaking of projects that affect indigenous peoples’ rights to land, territory and resources, including mining and other utilization or exploitation of resources (article 32).

In certain circumstances, there is an obligation to obtain the consent of the indigenous peoples concerned, beyond the general obligation to have consent as the objective of consultations. For example, the Declaration explicitly requires States to obtain consent of indigenous peoples in cases of:

The relocation of indigenous peoples from their lands or territories (article 10)

The storage or disposal of hazardous materials on indigenous peoples’ lands or territories (article 29)

Furthermore, indigenous peoples who have unwillingly lost possession of their lands, when those lands have been “confiscated, taken, occupied or damaged without their free, prior and informed consent” are entitled to restitution or other appropriate redress that can include lands equal in size and quality or just, fair and equitable compensation (article 28). In addition, indigenous peoples are entitled to redress with respect to cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent (article 11).

Other circumstances may also require free, prior and informed consent depending on the nature of the proposed measure and the scope and depth of its impact on indigenous peoples. According to the Expert Mechanism, the right of free, prior and informed consent is an “integral element” of the right to self-determination and obtaining such a consent is required in matters of fundamental importance for the rights, survival, dignity and well-being of indigenous peoples.¹²⁶ Similarly, the Special Rapporteur on the rights of indigenous peoples has stressed that “a significant direct impact on indigenous peoples’ lives or territories establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent. In certain contexts, the presumption may harden into a prohibition of the measure or project in the absence of indigenous consent.”¹²⁷

The Committee on the Elimination of Racial Discrimination also calls for both consultation and informed consent in its interpretation of the rights of indigenous peoples in applying the International Convention on the Elimination of All Forms of Racial Discrimination. In its general recommendation No. 23, the Committee requires States parties to ensure that indigenous peoples have equal rights to participate in public life and that no decisions relating directly to indigenous peoples are to be taken without their informed consent. With specific reference to land and resource rights, the Committee calls for restitution in situations where decisions have already been taken without the prior and informed consent of the affected indigenous peoples. It has also highlighted the obligation of States to ensure that the right of indigenous peoples to free prior and informed consent is respected in the planning and implementation of projects affecting the use of their lands and resources.¹²⁸ More recently, the Committee on Economic, Social and Cultural Rights has further expanded on free, prior and informed consent in general comment No. 21. In its interpretation of cultural rights, the Committee outlines that the right to participate in cultural life includes the rights of indigenous peoples to restitution or return of lands, territories and resources traditionally used and enjoyed by indigenous communities if taken without the prior and informed consent of the affected peoples. It also calls on States parties to “respect the principle of free, prior, and informed consent of indigenous peoples in all matters covered by their specific rights” and to “obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk”.¹²⁹

In the same vein, the Inter-American Court of Human Rights held in the Saramaka case that the State has a duty to not only consult with indigenous peoples, but also to obtain their free, prior and informed consent, according to their customs and traditions, in cases of large-scale development or investment projects that would have a major impact within indigenous peoples’ territory.¹³⁰

In relation to the practical application of the principle of free, prior and informed consent, the following guidance has been provided:

Free, should imply that there is no coercion, intimidation or manipulation, and Prior should imply consent being sought sufficiently in advance of any authorisation or commencement of activities and respective requirements of indigenous consultation/consensus processes. Informed should imply that information is provided that covers a range of aspects, [including, inter alia] … the nature, size, pace, reversibility and scope of any proposed project or activity; the reason/s or purpose of the project …; the duration; locality or areas affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks; personnel likely to be involved in the execution of the project; and procedures the project may entail. This process may include the option of withholding consent. Consultation and participation are crucial components of a consent process.¹³¹

A number of intergovernmental development agencies and international financial institutions have incorporated free, prior and informed consent into their policies and programmes on indigenous peoples. The United Nations Development Programme policy on indigenous peoples “promotes and supports the right of indigenous peoples to free, prior informed consent with regard to development planning and programming that may affect them”.¹³² The Operational Policy on Indigenous Peoples and Strategy for Indigenous Development adopted by the Inter-American Development Bank promotes “participation mechanisms and processes that must take into account the general principle of the free, informed and prior consent of indigenous peoples”¹³³ and stipulates that “before approving operations with particularly significant potentially adverse impacts on indigenous peoples, the Bank will demand evidence that the project proponent has reached satisfactory and duly documented agreements with the peoples affected, or has obtained their consent”.¹³⁴ The European Bank for Reconstruction and Development also recognizes the need to obtain the free, prior and informed consent of indigenous peoples before starting any activity on traditional lands, the relocation of indigenous peoples or any project proposing to use the cultural resources, knowledge, innovations or practices of indigenous peoples for commercial purposes.¹³⁵

The issue of with whom the State can seek consent is critical. In this regard, several communities around the world are working on establishing their own protocols on how outsiders should communicate with them to obtain their free, prior and informed consent. The consent of indigenous peoples should be determined in accordance with their customary laws and practices. This does not necessarily mean that every single member must agree, but rather that the consent process will be undertaken through procedures and institutions determined by indigenous peoples themselves. Indigenous peoples should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities.

In addition, mechanisms and procedures should be established to verify that free, prior and informed consent has been sought. In order for these mechanisms to function properly, indigenous peoples must be included in their development. States are to provide effective mechanisms for redress when the free, prior and informed consent of indigenous peoples has not been sought. This redress may include restitution or compensation. If it is determined that the elements of free, prior and informed consent have not been respected, it may lead to the revocation of consent given.

Many avenues are open to States to ensure that indigenous peoples benefit from the full protection of the principle of free, prior and informed consent, provided that indigenous peoples are meaningfully engaged in manner that is consistent with their culture and institutions.

Key points: Chapter 3 The right to self-determination is a collective right held by all members of an indigenous community or nation as a group and must be exercised in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. Autonomous political, economic and social structures of indigenous peoples support the effective exercise of the right to self-determination by indigenous peoples. Indigenous peoples have the right to participate in decision-making in matters that may affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. The Declaration requires States to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Consultation and participation are crucial components of a consent process.