Free, Prior, and Informed Consent: A Right in Limbo

Free, Prior, and Informed Consent: A Right in Limbo

 

by Georgios Andriotis[i]

 

Introduction

Indigenous people have been facing numerous challenges throughout the years, mainly in connection with State or private projects that have an impact on their ancestral lands and traditional culture. An emerging principle in international law, which, if established, will allow for a much greater protection of the indigenous peoples’ rights vis-à-vis violations by State and/or private entities, is that of free, prior and informed consent (“FPIC”).

Many prominent international law scholars have examined the notion of FPIC to date. Nonetheless, its legal status remains nebulous. A number of questions arise while analyzing the FPIC’s legal status: is FPIC part of indigenous peoples right to self-determination? What is the role of well-established principles such as that of State sovereignty and self-determination? Does it merely serve as a risk-mitigation factor for States and/or corporations in the development of projects affecting the lands and culture of indigenous peoples?

This short essay is an attempt to paint a clear picture of the current status of FPIC in international law.

 

I.     “Indigenousness” in International Law

In order to sufficiently appreciate the legal issues and the challenges pertaining to indigenous communities, it is imperative to identify what constitutes an indigenous people. Definitions, however, vary from scholar to scholar, organization to organization, region to region.[ii] In Asia, for instance, the term has been emphatically rejected due to the impact of the “Salt Water Thesis”[iii]. This position was introduced by United Nations General Assembly Resolution 1541 (XV) adopted in 1960, which defines colonialism as “a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it”[iv]. Another example is that of the International Labour Organization Convention on Indigenous and Tribal Peoples, No. 169[v], which provides for a “self-identification” of the people in question[vi].

What is commonly accepted, however, is, as Thornberry puts it, the “sense of original or first inhabitants”[vii]. Likewise, Erica Irene Daes, Founding Chairperson and Special Rapporteur of the United Nations Working Group on Indigenous Populations suggested that

“the ideal type of ‘indigenous peoples’ is a group that is aboriginal (autochthonous) to the territory where it resides today and chooses to perpetuate a distinct cultural identity and distinct collective social and political organization within the territory”[viii].

For the purpose of this paper, I consider as indigenous peoples the groups participating in the United Nations Permanent Forum on Indigenous Issues (“UNPFII”) and those deemed as such by various human rights bodies, namely the Human Rights Council (“HRC”) and the Committee on the Elimination of Racial Discrimination (“CERD”).[ix]

 

II.     The Principles of State Sovereignty and Self-Determination

The current international legal order is the result of the will of the States dating back to the Treaty of Westphalia and the creation of the modern State system in 1648.[x] In this regard, the current model of international law gives predominance to the State. “International law is, for the time being still primarily of application to states. States are, at this moment in history, still at the heart of the international legal system”[xi], argued Judge Rosalyn Higgins.

The central concept of State sovereignty finds application through different forms of expression one of which is a State’s sovereignty over its territory. State sovereignty “allows states within limits established by international law to conduct or authorize such activities as they chose within their territories, including activities which may have adverse effects on their environment”[xii]. Nonetheless, another fundamental principle of international law has come to shake the ideas of State-centrism and sovereignty; that of self-determination. Widely regarded as a principle of customary international law, it also bears with it the notion of jus cogens.[xiii] Here, the individual is seen as the primary actor in the “creation, development, and enforcement of international law”[xiv]. The principle of self-determination is enshrined in Article 1 common to both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. It is a collective right in that only individuals acting as a group can exercise it.[xv]

 

III.     FPIC as a Human Right of Indigenous Peoples

The principle of self-determination is key to indigenous peoples’ recognition and survival.[xvi] Indigenous peoples’ right to self-determination is deeply interwoven with that of free, prior and informed consent. The protection and advancement of the right to self-determination requires the existence of FPIC, which in turn “derives its force from the right of indigenous peoples to self-determination”[xvii].

Free, prior, and informed consent is a means by which the basic human rights of indigenous peoples can be protected and perhaps serve as a foundation for a structure of self-determination that ensures empowerment of indigenous peoples. The four elements, which comprise FPIC, have been eloquently elaborated upon by Antoanella-Iulia Motoc in “Legal commentary on the concept of free, prior and informed consent.[xviii] The following is a summary of her arguments, which are still regarded as the leading analysis on the subject:[xix] “Free” means that indigenous peoples should not have been coerced, intimidated, or manipulated into agreeing to something involving their interests. Thus, the right to FPIC is both a right to give and withhold consent. “Prior” acknowledges the importance that the consent be obtained before the commencement of any activity associated with the decision or project, which is being discussed, and that sufficient time be given to allow indigenous peoples to debate the issue within their own decision-making processes. “Informed” implies that all relevant information relating to the proposed activity must have been provided to the indigenous peoples. In addition, this information must be “objective, accurate and presented in a manner and form understandable to indigenous peoples.”[xx] “Consent” requires that indigenous peoples have in fact agreed to the proposed activity and does not preclude the issuance of additional conditions by indigenous peoples.

The concept of FPIC can be found, either explicitly or implicitly, in a number of international legal instruments as well as expressed in international and national judicial decisions. However, the language used in each of these documents differs, making the legal status and force of this principle vague. A more detailed account of these instruments follows in order to better understand the development of that concept.

a.     International Human Rights Treaties

i.     The International Labor Organization Convention 169

In 1989 the ILO adopted Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries.[xxi] The Convention entered into force in 1991 and has been ratified by 22 States so far. It is seen as the major international legal instrument concerning specifically indigenous peoples. Its provisions are legally binding on the States parties to it.

The Convention does not provide any definition of who are indigenous and tribal peoples. Instead, its text is based on the criterion of self-identification and sets out a number of other important criteria to help recognize indigenous and tribal peoples. It also precludes its use of the term “peoples” from being “construed as having any implications as regards the rights which may attach to the term under international law”[xxii]. More important, the Convention does not make any reference to the principle of self-determination in order to avoid any nuances as to potential statehood claims from indigenous peoples.

Despite, however, the exclusion of the term self-determination, ILO 169 is seen as a key international legal document for the advancement of indigenous peoples’ rights through its express reference to the right of free, prior and informed consent. Article 6 requires State governments to “consult the peoples concerned […] whenever consideration is being given to legislative or administrative measures which may affect them directly” and that “[T]he consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.”[xxiii] The article’s wording indicates reluctance to espouse the term consent. Instead, the word consultation is used which evidently suggests a milder approach taken in favor of States.

Further, Article 7 points to the right of indigenous peoples to “participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.”[xxiv] Finally, Article 16 focuses on the removal and/or relocation of indigenous peoples from the lands they occupy. Paragraph 2 states, “[W]here the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent.”[xxv] Nonetheless, paragraph 2 indicates that when such consent is impossible to obtain, potential relocation is in order according to “national laws and regulations.”[xxvi]

These provisions have certainly shaped the status of indigenous peoples’ rights in international law and continue to do so. Despite the absence of the term of self-determination and an unambiguous intention to moderate the right of FPIC by using the term consultation, ILO 169 has laid the ground for the establishment and further expansion of the rights of indigenous peoples particularly in regard to self-governance.

ii.     United Nations Declaration on the Rights of Indigenous Peoples[xxvii]

The adoption of the UNDRIP in 2007 has been a turning point for indigenous peoples and their rights. Rebecca Tsosie argues that the “[D]eclaration on the Rights of Indigenous Peoples is the most comprehensive and far-reaching document articulating the rights of indigenous peoples to date”[xxviii].

Article 3 explicitly makes reference to the right of indigenous peoples to self-determination.[xxix] The UNDRIP in that article adopts the wording of Article 1 of the ICCPR highlighting the importance of the right to self-determination for indigenous peoples. It is also evident that by replacing expressly the term “all peoples” of the ICCPR with “indigenous peoples”, the drafters of the Declaration intended to recognize and include indigenous peoples as, at least, participants in determining their destiny. It constitutes a significant step towards a social inclusion of the so-called marginalized indigenous communities. Articles 4 and 5 reinforce this view by providing for a greater “autonomy” of indigenous peoples with regard to their internal affairs and for a wider participation in dealing with the State.[xxx]

More important, however, the UNDRIP, in several articles, requires that States obtain or strive to obtain the free, prior and informed consent of the indigenous peoples. More specifically, Article 10 states that “no relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned…”[xxxi] The language used in Article 19 is also suggestive of the intention to enhance the protection accorded to indigenous peoples’ rights in international law. It reads:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”[xxxii]

The duty of States to consult and cooperate in good faith with the goal of obtaining the free, prior and informed consent of indigenous peoples is also found in Article 32(2) of the Declaration, which focuses on matters relating to the development, utilization or exploitation of mineral, water of other resources. Article 32(2) reads:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”[xxxiii]

Unlike the ILO Convention 169, the UNDRIP is not a binding legal document. In spite of its stronger language with regard to the principle of FPIC and the promotion of indigenous peoples’ rights in a more extensive manner, Lenzerini maintains that it can merely serve to help us understand and interpret other international instruments pertaining to indigenous peoples’ rights.[xxxiv]

b.     Human Rights Bodies

Compliance with major international human rights treaties such as the ICCPR, the ICESCR, and the ICERD is observed through well-established human rights bodies of the United Nations. Institutions like the CERD, the HRC, and the CESCR operate in order to safeguard and advance the fundamental human rights set out in these treaties.

Surprisingly, until the adoption of the UNDRIP in 2007, no international legal document made specific reference to the rights of indigenous peoples. Indeed, none of the aforementioned treaties refers explicitly to indigenous peoples’ rights, not to mention the right to FPIC. Nonetheless, each of these institutions has faced the issue of the FPIC, either expressly or disguised as an issue of participation and/or consultation of indigenous peoples in decision-making processes concerning development projects[xxxv].

To begin with, the HRC’s stance towards the concept of FPIC has been that of caution. The term “consultation” dominates its recommendations to States parties as regards the authorization for economic exploitation of the indigenous peoples’ lands.[xxxvi] Against this background, the HRC, in a recent instance, adopted a new language in dealing with the FPIC concept.[xxxvii] The Committee highlighted that mere consultation is insufficient and that free, prior and informed consent is required when projects significantly alter or infringe the rights of indigenous peoples.[xxxviii] Further, in 2010 the Committee strongly recommended that Colombia “adopt the pertinent legislation for holding prior consultations with a view to guaranteeing the free, prior and informed consent of community members”[xxxix].

Similarly, the two other main human rights institutions, have demonstrated progress as to their recommendations and/or demands to States. CESCR’s guiding principle, for instance, was to avoid any requirement that States obtain the consent of indigenous peoples prior to development projects taking place on their lands.[xl] Mere consultation used to suffice. The adoption of the UNDRIP, however, seems to have had an impact on the language used currently by the Committee. CESCR now recommends that States obtain the consent of indigenous peoples and/or consult with them under the guidance provided for in the ILO Convention 169 regarding development projects that may seriously affect their lives.[xli] Likewise, the CERD has gradually changed its approach to the concept of FPIC from vague recommendations for consultation to an actual informed consent obtained freely before the development of any projects directly relating to the rights and interests of indigenous peoples.[xlii]

Thus, signs of gradual change to include the rights of indigenous peoples by interpreting broadly provisions that would otherwise remain silent, provide for constant evaluation of existing norms that need to evolve according to the needs of the international community.

c.      International Jurisprudence

Like in the aforementioned international treaties, there is a lack of explicit reference to indigenous peoples’ rights in regional human rights treaties too. Nonetheless, this absence of specific provisions has not prevented indigenous peoples to bring their claims before regional human rights institutions by using articles of a more general scope found in these instruments. This section examines the body of case law developed through land claims brought by indigenous peoples and decided by the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights.

To begin with, the IACtHR’s role is to enforce, advance and interpret the provisions found in the American Convention of Human Rights. It is competent to hear cases in which States that have ratified the Convention and accepted the Court’s jurisdiction are involved in human rights violations. Its rulings are binding on the parties to the dispute.

Indigenous peoples’ claims mostly focus on violations pertaining to their rights to land and resources.[xliii] Article 21 of the Convention has been the core provision upon which the arguments and decisions are made. There have been a number of significant cases revolving around land rights. Nevertheless, the concept of FPIC has only been discussed in the case Saramaka People v. Suriname[xliv].

The Saramaka People v. Suriname decision recognized the right of indigenous peoples to own and enjoy the natural resources of their ancestral lands.[xlv] The Court stated that this right derives its force from the right to property enshrined in Article 21 of the Convention.[xlvi] Further, the Court pronounced that the State of Suriname is obliged to consult with the Saramaka people and obtain their free, prior and informed consent before the development of a project on their territories.[xlvii] Nonetheless, it is of outmost importance to mention that the Court appears to have made a clear distinction regarding two key issues. Firstly, the Court seems to have created two categories of natural resources within the meaning of Article 2, those necessary for the survival of indigenous peoples and those not necessary. Necessary resources include those pertaining to hunting, fishing and agriculture, whereas the unnecessary ones cover, for instance, subsoil resources. It becomes evident, however, that this distinction is problematic since it does not take into account the impact of subsoil resources on agriculture or other domains easily shaken by the destabilization of the environment.

The second distinction made by the Court deals with the size of the development projects to take place on indigenous peoples’ lands. More specifically, the Court ruled that the size of the development projects carries with it certain obligations but also restrictions. Projects small in size, according to the Court, have a smaller impact on the lands, culture, and traditions of indigenous peoples and should require merely the consultation in good faith of the indigenous peoples involved. Yet, large-scale projects have a greater impact on indigenous peoples’ lives and demand that a more profound protection of indigenous peoples’ rights is in order. Thus, the Court held that States should obtain the free, prior and informed consent of indigenous peoples.[xlviii] This view is supported by Article 32 of the UNDRIP to which the Court refers explicitly in the judgment.[xlix]

On the other side of the Atlantic, in Africa, the African Commission has rendered two key decisions[l] with respect to indigenous peoples’ right to FPIC and their involvement in the decision-making process. In 2002, the African Commission in the Ogoni case[li] noted that “in all their dealing with the Oil Consortiums, the Government did not involve the Ogoni communities in the decisions that affected the development of Ogoniland”[lii] and held that Nigeria had violated the right of the Ogoni people to freely dispose of its natural wealth and resources by issuing oil concessions on Ogoni lands.[liii]

In 2009, the Commission decided a case regarding Kenya’s Endorois indigenous community and their right to land. The ACHPR found the Kenyan government guilty of violating the rights of the country’s indigenous Endorois community, by evicting them from their lands to make way for a wildlife reserve. The decision, by the African Commission, creates a major legal precedent by recognizing indigenous peoples’ rights over traditionally owned land and their right to development. In that respect and in a similar way with the IACtHR, the Commission held that the State “has a duty not only to consult with the community, but also to obtain the free, prior and informed consent […]”[liv] with regards to development projects with a major impact for the community. Further, the Commission notes that indigenous peoples’ rights over their lands are strongly attached to their right to life and self-determination.[lv]

The aforementioned cases highlight the significance of the concept of FPIC in international law. Nevertheless, they also underscore the need for a more consistent and broader interpretation of existing human rights norms in order to create a comprehensive body of case law in relation to indigenous peoples’ rights in general and the principle of FPIC in particular.

 

IV.     The FPIC as a Risk-Mitigation Factor

The previous section discussed the concept of FPIC as a human right in international law particular to indigenous peoples and as being closely associated with the well-established right to self-determination. Nonetheless, a more realistic approach with regards to FPIC reveals another important aspect attached to that principle, namely its financial feature. Each development project, whether small or large, requires both planning and identification of means in order to be financed. Every execution of a development project involves risks and every investor looks for an assurance that the project will be executed in such way that risks will not arise or at least will be mitigated to the extent possible. This section examines the concept of FPIC as a risk-mitigation factor and attempts to reveal the more pragmatic face of international political and economic actors, whether public or private, in relation to the FPIC being asserted as a human right.

a.     The World Bank

The nature of services that the World Bank provides makes the dealing with indigenous peoples and their lands inevitable. Unsurprisingly, the World Bank was the first multilateral development bank to introduce developed an indigenous peoples policy in 1982.[lvi] Since then, the Bank’s Board of Executive Directors has adopted a number of versions of that policy. In 2005, the Board adopted the Operational Policy/Bank Procedures (OP/BP 4.10), a revised version of the operational policy (OD 4.20).[lvii] The previous operational policy was revised to better address the concerns of indigenous peoples and non-governmental organizations.[lviii] However, as the World Bank itself admits, the revised policy does not fully meet the requests made by indigenous peoples and advocacy groups.[lix] More specifically, the policy requires the borrower to conduct free, prior and informed consultation and to seek the broad community support in deciding whether to proceed with a project.[lx] This goes against demands for a free, prior and informed consent policy.

The revised standards provide for “consultation” and “broad community support” before a project takes place. The terms used are at best vague and ambiguous. They do, however, seem to offer the opportunity for developers to sufficiently mitigate the risks that might accompany development projects in a legitimate manner. Nevertheless, the same is not true for indigenous peoples’ communities who still lack the opportunity to decline projects taking place on their lands detrimental to their survival and traditional way of life.

b.     International Finance Corporation

 The International Finance Corporation is one of the five international financial institutions belonging to the World Bank Group. Its mandate is the reduction of poverty in developing countries by providing support and investments to advance private sector development in those countries.[lxi]

In 2012, the IFC revised its Policy and Performance Standards on Social and Environmental Sustainability. The revised standards require that, in certain circumstances, projects financed by the IFC obtain the free, prior and informed consent of indigenous peoples affected by such projects.[lxii] The adoption of the new standards constitutes unequivocally a milestone in the evolution of the FPIC concept. As Baker puts it “for the first time, private entities that rely on IFC financing are obligated to obtain the consent of indigenous communities affected by their deeds”[lxiii]. The requirements section of Performance Standard 7: Indigenous Peoples provides:

“12. There is no universally accepted definition of FPIC. For the purposes of Performance Standards 1, 7, and 8, “FPIC” has the meaning described in this paragraph. FPIC builds on and expands the process of [Informed Consultation and Participation] described in Performance Standard 1 and will be established through good faith negotiation between the client and Affected Communities of Indigenous Peoples. The client will document: (i) the mutually accepted process between the client and Affected Communities of Indigenous Peoples, and (ii) evidence of agreement between the parties as the outcome of the negotiations. FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree.”[lxiv]

It is evident that the IFC takes the view that there is a lack of a commonly accepted definition of the FPIC. Similar to the World Bank’s approach discussed above, a process of continuous consultation with the affected communities is favored here as well. Disguised under the term consent, this continuous consultation with the prospect of securing the consent of indigenous peoples is most likely the only outcome of this process. This can only exhaust the affected indigenous peoples both physically and mentally but also financially. However, once such “consent” is obtained, the financial risks that would have possibly arisen otherwise, now are out of the picture.

A more optimistic point of view is that of the FPIC being interpreted as a veto power for the indigenous peoples.[lxv] This view, however, goes against the Guidance Notes provided by the IFC on that matter. Guidance Note 7 Indigenous Peoples states with respect to the FPIC process that it “should ensure the meaningful participation of Indigenous Peoples in decision-making, focusing on achieving agreement while not conferring veto rights to individuals or sub-groups, or requiring the client to agree to aspects not under their control”[lxvi].

The revised standards seem to have, prima facie, two effects. Firstly, they provide for the elimination of any potential economic risks for developers. Secondly, they seem to offer justice to the affected communities through the assurance that consent will be obtained prior to the development of any project. In my view, however, despite the stronger language used by the IFC, the interpretation that will possibly be accorded to the concept of FPIC will only benefit the private developers and not the affected communities.

 

Conclusion

While the significance of FPIC not only as a theoretical concept but also as an embryonic principle and right in international law is evident, its current legal status nonetheless remains ambiguous. FPIC’s force as prospective human right stems from its close association with the right of all peoples to self-determination. On the other hand, States continue to stand firm regarding their fundamental right to State sovereignty over their territories. Thus, despite the references made to FPIC in many international legal instruments, the inconsistent terminology as well as the discrepancies regarding its legal force renders FPIC a right in limbo.

FPIC’s treatment as a risk-mitigation factor seems more realistic and pragmatic. Questions arise, however, as to the manner in which the information regarding land development projects is presented to indigenous communities. Undoubtedly, there is a need for tangible solutions through the use of legally binding instruments which will further regulate the development activities of States when they cannot or do not guarantee the protection of fundamental rights of indigenous peoples.

 

 

[i]               Georgios Andriotis (LL.M. class of 2018 – UC Berkeley, School of Law)

[ii]              Benedict Kingsbury, “’Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian Controversy” (1998) 92 American Journal of International Law, pp. 414-457.

[iii]              For more information please see Patrick Thornberry, “Self-Determination, Minorities, Human Rights: A Review of International Instruments,” (1989) 48(4) The International and Comparative Law Quarterly, pp. 867-889.

[iv]             United Nations General Assembly Resolution 1541(XV), 15 December 1960 available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR015315.pdf?OpenElement

[v]              Indigenous and Tribal Peoples Convention, 1989 (No. 169), entered into force on 5 September 1991 available at http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE:C169

[vi]             Indigenous and Tribal Peoples Convention, 1989 (No. 169), entered into force on 5 September 1991 available at http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE:C169

[vii]             Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002).

[viii]            Asbjorn Eide and Erica-Irene Daes, UN Economic and Social Council (ECOSOC), Commission on Human Rights, Sub-Commission on Promotion and Protection of Human Rights, Working Paper on the Relationship and Distinction between the Rights of Persons Belonging to Minorities and those of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/2000/10 (19 July 2000), p. 48.

[ix]             UNPFII: UN Permanent Forum on Indigenous Issues; HRC: formerly Human Rights Committee of the UN, now refers to the Human Rights Council of the UN; CERD: Committee on the Elimination of Racial Discrimination.

[x]              Daniel Philpot, “Westphalia, Authority, and International Society” in Robert Jackson, ed., Sovereignty at the Millennium (Oxford: Blackwell, 2001), p. 157.

[xi]             Rosalyn Higgins, Problems and Process: International Law and How we Use It (Oxford: Clarendon Press, 1994), p. 39.

[xii]             Philippe Sands, Principles of International Environmental Law (Cambridge: Cambridge University Press, 2003).

[xiii] James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004), p. 97.

[xiv]            Robert McCorquodale, “The Individual and the International Legal System” in Malcom D. Evans, ed., International Law (Oxford: Oxford University Press, 2006), p. 322; See also, James Crawford, The Rights of Peoples (Oxford: Oxford University Press, 1988), p. 166.

[xv]             International Covenant on Economic, Social and Cultural Rights Annex to General Assembly Resolution 2200 A (XXI) of 16 December 1966 [UN Doc. A/6316 (1966)], entered into force on 3 January 1976; International Covenant on Civil and Political Rights Annex to General Assembly Resolution 2200 A (XXI) of 16 December 1966 [UN Doc. A/6316 (1966)], entered into force on 4 January 1969.

[xvi]            Robert McCorquodale, “The Individual and the International Legal System” in Malcom D. Evans, ed., International Law (Oxford: Oxford University Press, 2006), p. 322; See also, James Crawford, The Rights of Peoples (Oxford: Oxford University Press, 1988), pp. 98-115.

[xvii]            Shannah Metz, Prior Informed Consent and Protected Areas. Case Study: Cordillera del Cóndor, Ecuador (Washington: Center for International Environmental Law, 2006).

[xviii]           UNESCO, Commission on Human Rights, Expanded working paper offering guidelines to govern the practice of implementation of the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources/submitted by Antoanella-Iulia Motoc and the Tebtebba Foundation, UN Doc E/CN.4/Sub.2/AC.4/2005/WP.1 (14 July 2005); See also UNGA, Human Rights Council, Final report of the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/18/42 (17 August 2011), para. 20-21 [“Study on right to participate”].

[xix]            See e.g. Patrick Anderson, Free, Prior, and Informed Consent in REDD+, Principles and Approaches for Policy and Project Development (Bangkok: RECOFTC – The Center for People and Forests, 2011) note 5, p. 15, online: The Center for People and Forests <http://www.forclime.org/images/stories/RECOFTC-GIZ_FPIC_in_REDD_2011.pdf>  [REDD+].

[xx]             UNGA, Human Rights Council, Final report of the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/18/42 (17 August 2011), para 25.

[xxi]            Indigenous and Tribal Peoples Convention, 1989 (No. 169), entered into force on 5 September 1991.

[xxii]            Indigenous and Tribal Peoples Convention, 1989 (No. 169), entered into force on 5 September 1991.

[xxiii]           ILO Convention 169, Article 6.

[xxiv]           ILO Convention 169, Article 7.

[xxv]           ILO Convention 169, Article 16.

[xxvi]           ILO Convention 169, Article 16.

[xxvii]          Declaration on the Rights of Indigenous Peoples, adopted 13 September 1007, G.A. Res. 61/295, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/295 (2007) [“UNDRIP”].

[xxviii]          Rebecca Tsosie, “Reconceptualizing Tribal Rights: Can Self-Determination Be Actualized Within the U.S. Constitutional Structure?” (2011) 15 Lews & Clark Law Review 923, 927.

[xxix]           UNDRIP, Article 3.

[xxx]            UNDRIP, Articles 4 and 5.

[xxxi]           UNDRIP, Article 10.

[xxxii]          UNDRIP, Article 19.

[xxxiii]         UNDRIP, Article 32.

[xxxiv]         Federico Lenzerini, Reparations for Indigenous Peoples (Oxford: Oxford University Press, 2008), p. 369.

[xxxv]          Mauro Barelli, “Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead” (2012) 16 International Journal of Human Rights, pp. 11-15.

[xxxvi]         Mauro Barelli, “Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead” (2012) 16 International Journal of Human Rights, pp.14-15.

[xxxvii]        Communication No. 1457/2006, CCPR/C/95/D/1457/2006 (24 April 2009), para. 7.4.

[xxxviii]       Communication No. 1457/2006, CCPR/C/95/D/1457/2006 (24 April 2009), para. 7.4.

[xxxix]         Concluding observations of the Human Rights Committee, Colombia, 99th Session, CCPR/C/COL/CO/6, para. 25.

[xl]              General Comment No. 21, Right of Everyone to take Part in Cultural Life, E/C.12/GC/21 (21 December 2009), para. 37.

[xli]             Concluding observations of the Committee on Economic, Social and Cultural Rights, Colombia, 44th Session, E/C.12/COL/CO/5, para. 9.

[xlii]            CERD General Recommendation N. 23 on Indigenous Peoples (18 August 1997) para. 4(d); See also CERD/C/CHL/CO/15-18 (7 September 2009), para. 22, CERD/C/GTM/CO/12-13 (19 May 2010), para. 11, CERD/C/PER/CO/14-17 (3 September 2009), para. 14.

[xliii]           Rebecca M. Bratspies, “Human Rights and Arctic Resources” (2009) 15 Southwest Journal of International Law 251, p. 273.

[xliv]           Saramaka People v. Suriname, 2007 Inter-American Court of Human Rights, Series C 172 (28 November 2007); See also Marcos A. Orellana, “Saramaka People v. Suriname” (2008) 102 American Journal of International Law, pp. 841-847.

[xlv]           Saramaka People v. Suriname, para. 122.

[xlvi]          Saramaka People v. Suriname, para. 122.

[xlvii]         Saramaka People v. Suriname, para. 129.

[xlviii]        Saramaka People v. Suriname, para. 134.

[xlix]          Saramaka People v. Suriname, para. 131.

[l]              See Centre for Minority Rights Development (Kenya) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 155/96, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, ACHPR/COMM/A044/1 (2002).

[li]             Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria, para. 58.

[lii]            Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria, para. 58.

[liii]           Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria, para. 58.

[liv]           Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria, para. 291.

[lv]            Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria, paras. 211-213.

[lvi]           OPCS Working Paper, Implementation of the World Bank’s Indigenous Peoples Policy, August 2011, p. 1.

[lvii]          OPCS Working Paper, Implementation of the World Bank’s Indigenous Peoples Policy, August 2011, p. 1.

[lviii]         OPCS Working Paper, Implementation of the World Bank’s Indigenous Peoples Policy, August 2011, p. 2.

[lix]           OPCS Working Paper, Implementation of the World Bank’s Indigenous Peoples Policy, August 2011, p. 2.

[lx]            OPCS Working Paper, Implementation of the World Bank’s Indigenous Peoples Policy, August 2011, p. 2.

[lxi]           About the International Finance Corporation’s Vision please see https://www.ifc.org/wps/wcm/connect/corp_ext_content/ifc_external_corporate_site/about+ifc_new

[lxii]          Performance Standard 7, Indigenous Peoples (1 January 2012) available at http://www1.ifc.org/wps/wcm/connect/1ee7038049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERES

[lxiii]         Shalanda H. Baker, “Why the IFC’s Free, Prior, and Informed Consent Policy Doesn’t Matter (Yet) to Indigenous Communities Affected by Development Projects” (2012) Wisconsin International Law Journal, Forthcoming, Univ. of San Francisco Law Research Paper No. 2012-16, p. 2.

[lxiv]        Paragraph 12, Performance Standard 7, Indigenous Peoples (1 January 2012) available at http://www1.ifc.org/wps/wcm/connect/1ee7038049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERES

[lxv]         Paragraph 12, Performance Standard 7, Indigenous Peoples (1 January 2012) available at http://www1.ifc.org/wps/wcm/connect/1ee7038049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERESpp. 20-21.

[lxvi]        Guidance Note 7 available at http://www1.ifc.org/wps/wcm/connect/e280ef804a0256609709ffd1a5d13d27/GN_English_2012_Full-Document.pdf?MOD=AJPERES