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

Ward, Tara | January 1, 2011

The right of indigenous peoples to free, prior, and informed consent (FPIC) in relation to development, infrastructure, and resource extraction projects is currently being debated within international law. Particularly contentious is the question of whether the right to FPIC is an existing customary international legal principle and if so, whether this constitutes a full veto right for the affected peoples. This article examines this question by analyzing the development of FPIC within international law and applying the current international standards to two distinct case studies. The first is the Lubicon Cree in Alberta, Canada, and the second is that of the Mayan Communities of Sipakapa and San Miguel Ixtahuacan, Guatemala. Ultimately, these two cases demonstrate how similar violations of indigenous peoples rights can occur in two very different contexts.

While the most explicit expression of FPIC is found in the United Nations Declaration on the Rights of Indigenous Peoples, by examining the jurisprudence of the United Nations Human Rights system, International Labour Organisation Treaty system, and Inter-American Human Rights system, it is clear that the various treaty bodies are interpreting existing rights to culture, property, and non-discrimination as the right of indigenous peoples to participate in decisions that impact their lands or resources. Although it is clear that as of yet the right to full FPIC is not part of customary international law, there is a well-defined consensus that States at a minimum have an obligation to consult with indigenous peoples in good faith with regard to any projects found within their lands or which impact traditionally used resources.

Furthermore, this analysis, which consists of both of the above-mentioned case studies and international human rights jurisprudence, highlights the extent of the gap that exists between the standards being developed and current State practice. In the end, this article finds that in order to effectively implement the FPIC and other participation rights, consultations must be recognised as expressions of the right to self-determination and not merely as administrative procedures.