Adopted by the UN General Assembly in September 2007, the Declaration on the Rights of Indigenous Peoples recognizes the obligation of states (countries) to consult with Indigenous Peoples and “to obtain their free, prior, and informed consent before adopting and implementing legislative or administrative measures that may affect them.” “While the UN Declaration on the Rights of Indigenous Peoples may not be legally binding per se, in important parts, it reaffirms customary international law, say two law professors.” (S James Anaya & Siegfried Wiessner)
The principle of Free, Prior, and Informed Consent is vital to upholding the human rights of Indigenous Peoples and communities. The right of FPIC is an expression of the fundamental and inherent right to self-determination of American Indians and Alaska Natives in the United States and First Nations, Inuit and Métis in Canada.
Free, Prior, and Informed Consent is a basic underpinning of Indigenous Peoples’ ability to conclude and implement valid treaties and agreements, to have sovereignty over and protect our lands and natural resources, and to develop and participate in processes that redress violations of our land and treaty rights.
Free, Prior, and Informed Consent is defined as the right of our communities and Native Nations to be thoroughly informed about any development affecting our lands and resources, particularly in connection with the development, utilization or exploitation of mineral, water, environment or other resources and any legislative or administrative actions which may affect our community, in a timely basis, and to provide consent prior to the commencement of the development or action. This includes participation in setting the terms and conditions addressing the economic, social, cultural, spiritual and environmental impacts.
At the core of the Free Prior, and Informed Consent standard is the acknowledgement that under certain circumstances, companies must accept that projects will not proceed – especially when our Native Nations/Indigenous Peoples say NO! For most companies, this is a difficult pill to swallow.
While companies should set Free, Prior, and Informed Consent as an ideal standard, only Indigenous communities have the right to a project veto. Other stakeholders, such as NGOs, do not have this power. This distinction is based upon the emergence of national and international jurisprudence grounded in the concept that Native/Indigenous communities have land title—non-Native communities and other stakeholders do not. In addition, in many cases, non-Native communities do not have the historic, spiritual, and cultural ties to land.
Related to development and environmental impacts, companies can achieve the FPIC standard through consultation. But consultation, on its own, does not constitute FPIC. Consultation is not equivalent to consent. The possibility that projects can be rejected must be acknowledged.
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The standards and policy of FPIC and the Declaration on the Rights of Indigenous Peoples (DRIP) must be implemented at every level of government and in decision-making bodies within the United States and Canada including our American Indian/Alaska Native and First Nations, Inuit and Métis governing structures. This includes operating standards of companies, social and financial investment policies, governmental environment, natural resource and historical protection regulatory and compliance laws and many other areas.