Indigenous Consent: A Self-Determination Perspective

Abstract

With the rise of “Free, Prior, and Informed Consent” (“FPIC”), obtaining consent from Indigenous peoples has become central to many struggles involving Indigenous communities. Yet even as consent-seeking practices become more universal, developments in the implementation of FPIC threaten to sever FPIC from its normative foundations. FPIC is a manifestation of, and pathway towards promoting, self-determined governance by Indigenous communities. Self-determination, however, is all but absent from the conception of FPIC articulated by those who often bear de facto responsibility for its implementation: companies who wish to pursue projects on Indigenous peoples’ land. Companies have taken the lead in (1) generating normative guidance regarding FPIC, (2) implementing FPIC processes, and (3) evaluating FPIC processes’ implementation. Yet FPIC as interpreted and implemented by actors on the ground has heretofore received insufficient attention. This article critically evaluates emerging FPIC practices in light of FPIC’s normative foundations.

This article suggests that we are witnessing “FPIC’s normative drift”: a process whereby FPIC is adopted by companies, but denuded of its normative import. Corporate articulations of FPIC suggest companies employ a thin, liberal notion of consent, inconsistent with understanding FPIC as part of a self-determined governance process. I argue that corporate delegation of FPIC obligations has gone too far, such that independent oversight from settler State or independent authorities is needed. I explore options for the institutional and procedural form for settler State re-engagement.

Keywords: Indigenous peoples, FPIC, consent, corporate social responsibility, CSR, human rights, business and human rights, international investment law

JEL Classification: K33, K20, K49, F21, F54