FREE, PRIOR AND INFORMED CONSENT: ILO 169 IN SOUTH AMERICA AND A CANADIAN PERSPECTIVES

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (April 2017)
CHAPTER 18A
FREE, PRIOR AND INFORMED CONSENT: ILO 169 IN SOUTH AMERICA AND A CANADIAN PERSPECTIVES
Kevin O'Callaghan
Partner
Fasken Martineau DuMoulin LLP
Vancouver

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KEVIN O'CALLAGHAN is the Leader of Fasken Martineau's Aboriginal Law Practice Group and he is a founder of their Corporate Social Responsibility Law Practice Group. He is based in Fasken's Vancouver office. Kevin provides strategic advice on Aboriginal, regulatory, environmental, and other corporate social responsibility (CSR) issues. While his extensive experience is focused throughout western and northern Canada, he also advises a number of clients around the world. Kevin provides ongoing advice to resource companies on obligations to First Nations and agreements with First Nations. Kevin was counsel for a coalition of businesses in two critical aboriginal cases at the Supreme Court of Canada: first on leading case on Aboriginal consultation and accommodation (Haida Nation v. B.C.); and second, on the leading case on Aboriginal title (Tsilhqot'in Nation v. B.C.).

Introduction

BIO: Kevin O'Callaghan is the leader of Fasken Martineau's Aboriginal Law Practice Group and he is a founder of their Corporate Social Responsibility Law Practice Group. He is based in Fasken's Vancouver office. Kevin provides strategic advice on Aboriginal, regulatory, environmental, and other corporate social responsibility (CSR) issues. While his extensive experience is focused throughout western and northern Canada, he also advises a number of clients around the world. Kevin provides ongoing advice to resource companies on obligations to First Nations and agreements with First Nations. Kevin was counsel for a coalition of businesses in two critical aboriginal cases at the Supreme Court of Canada: first on leading case on Aboriginal consultation and accommodation (Haida Nation v. B.C.); and second, on the leading case on Aboriginal title (Tsilhqot'in Nation v. B.C.).

This is a summary of the Introduction corresponding to the Book Indigenous Rights in South America - FPIC and Other Key Issues for Natural Resource Developments, Ed. Rocky Mountain Mineral Law Foundation, U.S. A. Colorado, 2016.

I. Introduction¹

Each jurisdiction across South America has its own peculiar history which has its present day reflection in how indigenous issues arise and are dealt with. Although this creates a myriad of indigenous issues that must each be analyzed within their historical context and legal background to truly be understood, there is a consistent theme to the modern push towards recognition of indigenous rights. The theme is Free Prior Informed Consent or FPIC.

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The concept of FPIC enters into South America law and policy through the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169),² which was ratified by nine of the twelve South American independent states: Argentina (2000), Bolivia (1991), Brazil (2002), Chile (2008), Colombia (1991), Ecuador (1998), Paraguay (1993), Peru (1994), and Venezuela (2002). Despite the fact that many of these countries have been theoretically applying FPIC for decades, it is only in the past few years that demands for FPIC, both political and legal, have been making their way into public discourse and policy.

FPIC is now firmly on the agenda for stakeholders in the extractive industries especially. As global demand for energy and natural resources continues to grow, indigenous peoples continue to call on governments and industry to enable them to give or withhold their FPIC for projects that have the potential to affect the lands and natural resources they have traditionally relied on. At the same time, FPIC is widely misunderstood, the concept itself has not been universally accepted as international law, and the expectations of business and industry with regard to FPIC are increasingly unclear. Until meaningfully addressed, calls for FPIC by indigenous peoples will continue to be the most contentious element of resource development in South America.

This paper will provide background on the development of the concept of FPIC and how it has been in use internationally. In addition, and for contrast, we have looked at how FPIC has thus far been implemented in Canada. In the 1980s, Canada included constitutional protection for "Aboriginal rights" and has, since that time, been trying to deal with the impact and import of that inclusion. The Supreme Court of Canada has emphasized the critical importance of balance in what it calls a process of "reconciliation." The Chief Justice of the Court eloquently stated:

Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve . . . "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown." Let us face it, we are all here to stay. ³

As a result, Canada has over 30 years' experience in creating the processes, both legal and political, that may lead towards the goal of reconciliation.

II. Evolution of Free Prior Informed Consent

There is no internationally agreed definition or understanding of FPIC or mechanism for implementation despite considerable discussion and debate in recent years. The International Finance Corporation (IFC) defines FPIC as a process:

FPIC . . . will be established through good faith negotiation between the client and the 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. ⁴

While there may be general agreement, or at least a building consensus, on the meaning and content of "free," "prior" and "informed,"⁵ the notion of consent is the most controversial. The controversy is whether

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the consent requirement implies an indigenous right to veto development in the name of self-determination. As a result, there is an ongoing debate on whether the concept is best understood as a procedural protection (consent being the goal of a process of consultation and engagement), or as a substantive right (the power to issue a final, binding decision, including veto).

A. Origins

FPIC is derived from the right to self-determination, which is considered to be the founding principle of indigenous peoples' rights.⁶ Indeed, FPIC appeared initially, albeit implicitly, in the 1960 United Nations Declaration on the Granting of Independence to Countries and Peoples. Article 2 reads:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. ⁷

The right to self-determination was clearly rearticulated 6 years later in the Common Article 1 of two United Nations Covenants: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).⁸ As an extension of these rights, it has been argued that indigenous peoples must have the right to grant or withhold consent to certain development projects within their lands, and that impact the resources indigenous peoples have traditionally relied upon.⁹

Since then, a number of international conventions and declarations have recognized the obligation of the states that have ratified them to secure the FPIC of indigenous peoples before taking certain actions that fundamentally affect the communities, cultures, resources or ways of life of those peoples. Two such documents are generally considered to be the most relevant to project development that may impact indigenous populations: the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

B. ILO 169

ILO 169 was the first international legal instrument to refer to FPIC when it was introduced in 1989.¹⁰ ILO 169 is legally binding on its signatories. This is significant given that, broadly speaking, ratified international treaties form an integral part of domestic law in civil law jurisdictions throughout South America and can be treated as overriding subsequently as well as previously enacted statutes in a manner akin to constitutional provisions.¹¹

ILO 169 recognizes indigenous peoples' collective land and participation rights and affirms a strong procedural requirement for consultations which must have "the objective of achieving ... consent."¹² Consultations must be undertaken "in good faith and in a form appropriate to the circumstances."¹³ Article

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16 requires that where the relocation of indigenous peoples "is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent".¹⁴ It states:

Article 16

1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.

3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.

4. When such

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