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Indigenous Peoples' Rights to Sacred Sites and Traditional Cultural Properties and the Role of Consultation and Free, Prior, and Informed Consent

Stuart R. Butzier, Sarah M. Stevenson, International Mining and Oil & Gas Law, Development, and Investment (2013)

For indigenous peoples1 around the globe, sacred sites and other traditional cultural properties (“TCP”)2 are of extreme importance to the preservation of their culture and society. Often, sacred sites and TCPs are part of the natural landscape; and often, in whole or in part, are the site of mineral wealth and locus of development projects by extractive industries. Historically, corporations have proceeded with development projects without due consideration to the importance to affected indigenous peoples of sacred sites, and as a result have caused damage, at times irreparable. In recent years, however, international law, including the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”),3 and domestic laws in States4 around the world recognize an indigenous right to sacred sites. Along with recognition of that right has come sources, including industry standards, requiring States and corporations5 to conduct consultation or obtain the free, prior, and informed consent (“FPIC”) of affected indigenous peoples prior to commencement of and during development projects that affect sacred sites or TCPs. While the care and diligence prompted by these developments pose economic and operational challenges, respecting and reasonably protecting sacred sites and cultural resources, in cooperation with indigenous peoples and regardless of governmental involvement, sho