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Free, Prior, and Informed Consent: Observations on “Operationalizing” Human Rights For Indigenous Peoples

David L. Deisley, Lloyd K. Lipsett, International Mining and Oil & Gas Law, Development, and Investment (2013)

Over the past five years, a consensus has emerged that free, prior, and informed consent (“FPIC”) is a cornerstone component of international human rights law, particularly in relation to indigenous peoples. The foundation for FPIC as a concept originates in the right to self-determination and was given expression by the International Labor Organization (“ILO”) Convention 169 (“ILO 169”) in 1989.1 The pace of FPIC development increased with the United Nations General Assembly's adoption of the Declaration of the Rights of Indigenous Peoples (the “Declaration”) in March 2007.2 The adoption of the UN Guiding Principles on Business and Human Rights, which clarified the responsibilities of business enterprises to respect all human rights, including indigenous peoples' rights, has also increased the focus on FPIC.3 While much progress has occurred in developing the academic and legal bases for FPIC and its importance to the human rights of indigenous peoples, a lack of understanding and consensus on how to “operationalize” FPIC persists.4 In our view, this ambiguity is frustrating achievement of the ultimate goal of FPIC - realization of respect for the human rights of indigenous peoples. We agree with Professor James S. Anaya, Special Rapporteur on the Rights of Indigenous Peoples, conclusion that “[b]ridging this gap requires the concerted, goal-oriented action of a myriad of gove