A New Regime of Meaningful Free, Prior and Informed Consent

Megan Pierce, Associate Editor, Michigan Journal of International Law

As asserted by the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), “[i]ndigenous peoples are among the most excluded, marginalized and disadvantaged sectors of society. This has had a negative impact on their ability to determine the direction of their own societies, including in decision-making on matters that affect their rights and interests.”[i]  Over the last several decades, an international system of legal rights and protections belonging to indigenous communities has grown and strengthened, culminating recently in the United Nations Declaration on the Rights of Indigenous Peoples.[ii]  Recognizing the significant and serious injustices suffered by indigenous communities around the globe[iii], international society, led by the UN, has begun to address the question of how to alleviate and reverse the negative consequences of these injustices, as well as protect the rights and autonomy of indigenous communities.  After twenty years of deliberation between representatives of indigenous groups and states in which indigenous groups had an unprecedented influential voice, UNDRIP was affirmed with the support of 143 member states in 2007.[iv]  The UNDRIP has emerged as the most recent and prominent document defining the rights of indigenous peoples, and the central principle of free, prior and informed consent (FPIC) has created a significant amount of debate. The Declaration recognized “the urgent need to respect and promote the inherent rights of indigenous peoples” and expressed conviction that “control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures, and traditions, and to promote development in accordance with their aspirations and needs.”[v]  Most importantly, the Declaration asserts that the right to self-determination, including the right to freely pursue economic, social, and cultural development, is an inherent right of indigenous peoples.[vi]   An essential component of the right to self-determination, is the right to free, prior and informed consent in all decision-making which affects indigenous communities.  Recognizing that FPIC is crucial to the right to self-determination, Dr. Maruo Barelli, senior lecturer at the City Law School in London, argues that,

It would seem difficult to reconcile the right of indigenous peoples to pursue freely their economic, social and cultural development with the fact that development projects could take place on their lands without their consent and regardless of the consequences that the concerned activities could have on their cultures and lives. Similarly, the right to own, use, develop and control their lands, territories and resources included in Article 26 would be deprived of its essence were indigenous peoples indistinctively denied the right to oppose unwanted projects on their lands.[vii]

The UNDRIP specifically refers to FPIC in six different articles[viii]:  Although the term FPIC may appear clear on its face, its interpretation has been extremely controversial and diverse.  Specifically, interested parties, including states and indigenous groups, disagree over whether the phrase “in order to obtain their free, prior and informed consent” contains a requirement that consent be actually obtained, or only that a good faith effort is made to effectively consult with affected indigenous peoples.[ix]  Most observers recognize that FPIC cannot create an absolute obligation for states to obtain explicit consent for any activity which might affect indigenous peoples, but at the same time emphasize that FPIC cannot be read as simply creating a right for indigenous peoples to participate and be consulted in the planning and implementation of such activities.[x]  The issue thus becomes in which instances is full, explicit consent required.  In Article 30, the Declaration calls for States to “undertake effective consultations with the indigenous peoples concerned…prior to using their lands or territories for military activities.”[xi] The requirement of mere consultation in this instance, in comparison with other requirements for FPIC, suggests that the drafters intended that the FPIC requirement create an obligation beyond mere consultation.  Clarity and direction in the interpretation of the principle is needed if it is to have any uniform and meaningful impact for indigenous communities.  Although the VCLT does not directly apply in this case because the UNDRIP is a declaration and not a treaty, the Article 31 principle of interpreting a treaty in light of its object and purpose can be both applicable and useful.[xii] Looking at the purpose of the UNDRIP, any interpretation of FPIC should further the urgent need to protect indigenous peoples’ right to self-determination, as well as allow indigenous communities to control their development and preserve their cultures, traditions, and identities.[xiii] Prior to the enactment of the UNDRIP, the ILO and the World Bank both asserted that indigenous peoples’ had rights to consultation in decision-making or matters which affect them, but did not go so far as to assert a right to FPIC.[xiv]  Many states have strongly opposed any interpretation of FPIC which would require explicit and affirmative consent from indigenous groups for policies, projects, or other matters which would affect them. Such an interpretation would give indigenous groups or other populations within their territory veto power over any projects impacting their traditional lands, culture, or community, including projects aimed at benefiting and furthering the development of the national economy.[xv]  The United States, after originally voting with three other States against the UNDRIP, reversed its stance in December of 2010 and issued a statement in support of the Declaration.[xvi]  In its announcement, the United States emphasized that the UNDRIP is not legally binding or a reflection of international customary law.[xvii] It also explicitly interpreted the provisions concerning free, prior, and informed consent “to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before actions addressed in those consultations are taken.”[xviii] Like the U.S., many other countries and international tribunals have adopted a similar understanding of FPIC.[xix] The conflicts and inadequacies concerning the interpretation of FPIC can be seen in the recent review of the United States by the Committee on the Elimination of Racial Discrimination (CERD).  CERD, in its General Recommendation XXIII, obligates States parties to “[e]nsure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.”[xx]  In contrast, the United States’ interpretation of FPIC deprives the principle of much of its meaning and significance, as well as goes against the general purpose of the UNDRIP.  Because consultation does not require agreement from indigenous communities, many projects within the United States have continued to go forward without consent from directly affected indigenous communities.  During the review of the United States at the 85th session of CERD, civil society testimony and alternative reports illustrated the ineffectiveness of a simple consultation standard.  For example, the U.S. southern border wall was built through traditional lands of the Lipan Apache without real consultation, let alone consent.[xxi]  According to this indigenous group, “the construction of the border wall, including takings of Lipan Apache land and the increased presence of armed border patrol agents, threaten the tribe’s very existence. The Lipan Apache seek to have their rights under international law recognized in order to prevent the destruction of their identity as an indigenous people.”[xxii]  Similarly, the Arizona Snowbowl artificial ski resort is being constructed in the San Francisco Peaks, with devastating effects on the traditional sacred lands of the Navajo and other indigenous peoples, without their free, prior and informed consent.[xxiii]  The Committee reviewed many similar pleas from other indigenous groups suffering from detrimental activities undertaken on their lands without their free prior and informed consent.[xxiv]   In its Concluding Observations, the Committee expressed serious concern at the United States’ “Lack of concrete progress achieved to guarantee, in law and in practice, the free, prior and informed consent of indigenous peoples in policy-making and decisions that affect them.”[xxv]  The review emphasized the practical shortcomings of a simple consultation requirement and highlighted the need for a uniform standard of the FPIC obligation. Tara Ward recognized that, “[a]s an extension of [the right to self-determination], indigenous peoples must have the right to grant or withhold consent to certain development projects within their lands, and which impact their resources.”[xxvi]  The UNDRIP clearly recognizes that there is an essential tie between the identity and culture of indigenous peoples’ and their traditional lands.[xxvii]  As the Declaration further asserts, there is a need for urgent action to protect and strengthen the control indigenous peoples have over their lands, resources, and traditions, so as to decrease the serious and continuing threat to their culture, identity, and very existence. The UNDRIP is a significant step in the strengthening of indigenous rights, but it is not sufficient to protect the land, culture, identity, and future of indigenous peoples. Because the Declaration is not legally binding and has not been widely or unequivocally recognized as reflecting established international customary law[xxviii], a legally-binding treaty within the human rights treaty body system should be established which explicitly addresses States’ obligations in relations to indigenous peoples within their territories.  The treaty must eradicate the current ambiguities and contradictions in the interpretation of FPIC, and require explicit affirmative agreement from indigenous peoples, through referendums or other clear demonstrations of consent, in all matters which directly affect their traditional lands and resources.

[i] Expert Mechanism on the Rights of Indigenous Peoples, Expert Mechanism Advice No. 2 (2011): Indigenous Peoples and the Right to Participate in Decision-Making, at 1, A/HRC/18/42.
[ii] United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/295 (2007).
[iii] Id. pmbl.
[iv] Press Release, General Assembly, General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major Step Forward’ Towards Human Rights for All, Says President, U.N Press Release GA/10612 (Sept. 13, 2007).
[v]  G.A. Res. 61/295, supra note 2, pmbl.
[vi]  G.A. Res. 61/295, supra note 2, ¶ 3.
[vii] Maruo Barelli, Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead, 16 Int’l J.L. Of Hum. Rts. 1, 9 (Jan. 2012).
[viii] G.A. Res. 61/295, supra note 2.  (Direct references to FPIC are found in Articles 10, 11, 19, 28, 29, 32.  For  example, article 32 asserts “States shall consult and cooperate in good faith with the indigenous peoples concerned…in order to obtain their free, prior and informed consent prior to the approval of any project affecting their land or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”)
[ix] Barelli, supra note 7, at 11.
[x] See, e.g., Id.
[xi] G.A. Res. 61/295, supra note 2, ¶ 30.2.
[xii] Vienna Convention on the Law of Treaties art. 32, May 23, 1969, 1155 U.N.T.S. 331.
[xiii] See G.A. Res. 61/295, supra note 2.
[xiv] Barelli, supra note 7, at 3-5.
[xv] Id. at 9.
[xvi] Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples (Dec. 16, 2010), http://www.state.gov/documents/organization/184099.pdf.
[xvii] Id.
[xviii] Id.
[xix] Carol Y. Verbeek, Note, Free, Prior, Informed Consent: The Key to Self Determination: An Analysis of the Kichwa People of Sara Yaku v. Ecuador, 37 Am. Indian L. Rev. 263, 276-78 (2012-13).
[xx] C.E.R.D. Gen. Rec. XXIII, ¶ 4(d), U.N. Doc. CERD/C/GC/33, 51st Sess., (1997).
[xxi] Human Rights Clinic at the University of Texas School of Law, The Situation at the Texas-Mexico Border and the Racially Discriminatory Impact of the Border Wall on the Lipan Apache (Cúelcahén Ndé) Peoples in Texas, February 2014 at 3, http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_16962_E.pdf.
[xxii] Id.
[xxiii] Navajo Nation, Alternative Report Regarding the Continued Desecration of the San Francisco Peaks, A Sacred Area, July 1, 2014, http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_17600_E.pdf.
[xxiv] See Robert Rene Hager, Shadow Report Update to the Committee for the Elimination for the Racial Discrimination on the Early Warning and Urgent Action Procedure Decision 1(68) in Relation to the United States of America, July 23, 2014, http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_17770_E.pdf (update from Western Shoshone concerning mining activities on their sacred lands); see also the International Indian Treaty Council, Tribal Emergency Summit and the National Congress of American Indians Report, July 25, 2014 at 8, 24, http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_17778_E.pdf (expressing concern at the lack of consent to construction of keystone pipeline, running through lands traditionally held and used by various indigenous groups).
[xxv] C.E.R.D. Concluding Observations of the United States, ¶ 24a, CERD/C/USA/CO/7-9, 85th Sess., (Aug. 29, 2014), available at http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/CERD_C_USA_CO_7-9_18102_E.pdf
[xxvi] Tara Ward, The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law 54, 55 (2011).
[xxvii] G.A. Res. 61/295, supra note 2, pmbl.
[xxviii] Tara Ward, supra note 26, at 55.