Free, Prior and Informed Consent: Making FPIC work for forests and people
Marcus Colchester
The Forests Dialogue, July 2010

This paper aims to open up contentious and challenging issues for discussion, to highlight areas where there are already different views, and summarize some of the lessons learned. It examines the legal basis for FPIC and FPIC in evolving standards and best practice norms, and addresses a series of issues related to development, climate and forests, implementation challenges and processes of giving consent. The paper reviews recent developments in international human rights jurisprudence, including the case of Saramaka People v. Suriname which affirmed that indigenous and tribal peoples have the right to manage, distribute and effectively control their territory in accordance with their customary laws and traditional collective land tenure system. The Inter-American Court of Human Rights ruled that in cases where the State proposes large-scale interventions that may affect indigenous and tribal peoples’ lands and natural resources, their free, prior and informed consent is required in accordance with their customs and traditions, including their right to choose their own representatives and make decisions in line with their traditional methods of decision-making. It also highlighted the CBD Akwe: Kon Guidelines for the conduct of cultural, environmental and social impact assessments prior to developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities, as an example of international standards and best practice regarding environmental and social impact assessment. Furthermore, the paper reviews a recent ‘landmark’ decision by the African Commission on Human and Peoples’ rights, which affirmed the right of the Endorois pastoralists of Kenya to own their customary lands and to free, prior and informed consent, rights which were violated when they were removed from their lands to make way for a protected area. The decision invokes the UN Declaration on the Rights of Indigenous Peoples and draws on the findings of the Inter-American Court of Human Rights.

The author notes that according to international law and jurisprudence, indigenous peoples have the right to FPIC not only over their territories, lands and natural resources but also in respect to legislative or administrative measures that may affect them. The most important issue to clarify is the extent of the land, territories and resources over which the indigenous peoples may exercise this right. It is suggested that one of the best ways of clarifying the current and historical extent of customary rights is through participatory mapping. Download the paper [pdf] …