The principle of free, Prior and Informed Consent (FPiC): An Appraisal of the International and Domestic Jurisprudence

Abstract

This article seeks to appraise a number of legal and semi-legal decisions touching on indigenous communities’ rights to land and resources and the development of the principle of Free, Prior and Informed Consent (FPIC). Indeed, it is imperative to examine existing case law on FPIC and assess how the courts have interpreted and applied FPIC as a concept in light of the existing cases. The right to FPIC in relation to development projects, resource extraction, and other investment projects within the territory of indigenous peoples is currently being debated within international circles. The basic principles of FPIC are to ensure that indigenous peoples are not coerced or intimidated, that their consent is sought and freely given prior to the authorization or start of any activities, that they have full information about the scope and impacts of any proposed developments, and that ultimately their choices to give or withhold consent are respected. This article explores the development of FPIC within international law. It does so by examining the jurisprudence from regional bodies such as the Inter-American Human Rights System and the African Commission on Human and Peoples Rights. These provide insights into the challenges that exist for indigenous peoples in exercising their participation rights. This article finds that although a customary international legal principle that addresses indigenous peoples’ full right to FPIC does not yet exist, there is a clear consensus within international human rights jurisprudence that at a minimum, States must engage in good faith consultations with indigenous peoples prior to the exploration or exploitation of resources within their lands or actions that would impact their traditionally used resources. Finally, the discussion of the jurisprudence and the analysis of the cases, studies highlight that, for the affected communities, FPIC and other participation rights are not merely administrative processes, but are an exercise in and expression of the right to self-determination.