FREE, PRIOR, AND INFORMED CONSENT: OBSERVATIONS ON "OPERATIONALIZING" HUMAN RIGHTS FOR INDIGENOUS PEOPLES

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment
(Apr 2013)
CHAPTER 2A
FREE, PRIOR, AND INFORMED CONSENT: OBSERVATIONS ON "OPERATIONALIZING" HUMAN RIGHTS FOR INDIGENOUS PEOPLES
David L. Deisley
Executive Vice President Corporate Affairs and General Counsel, NovaGold Resources
Salt Lake City
Lloyd K. Lipsett
LKL International
Montreal

DAVID L. DEISLEY joined NovaGold Resources Inc. in November 2012 and serves as Executive Vice President and General Counsel. In that role, Dave is responsible for all aspects of NOVAGOLD's legal governance and corporate affairs. With over 25 years of experience in the mining industry in the Americas, Dave has an extensive track record in project permitting, corporate social responsibility, mergers and acquisitions and corporate development. Formerly, he served as Executive Vice President, Corporate Affairs and General Counsel for Goldcorp Inc. and prior to that, held several progressively responsible capacities with Barrick Gold Corporation, including Regional General Counsel for Barrick Gold North America. Dave began his legal and mining career at Parsons Behle & Latimer where he served as a member and chair of the firm's Natural Resources practice. He has presented a number of papers at Rocky Mountain Mineral Law Foundation annual and special institutes and MALRI seminars on various mining topics. Dave obtained his Juris Doctor from the University of Utah, College of Law and his Bachelor of Arts from Brown University.

LLOYD LIPSETT is an international human rights lawyer with 15 years of experience working with leading companies, governments, civil society organizations and indigenous peoples. He has developed a niche in the field of human rights impact assessment with a focus on extractive industry projects and free trade agreements. He has worked on human rights impact assessments in Canada, the United States, Guatemala, Peru, Argentina, Colombia, Democratic Republic of Congo, China, Philippines and Vanuatu. Lloyd previously served as the senior assistant to three Presidents of Rights & Democracy from 2003 to 2008, and participated in all aspects of the organization's management and programming, including the development of a community-based human rights impact assessment methodology. Lloyd began his career as a corporate litigator at McMillan Binch in Toronto. He successfully represented clients at all levels of the courts of Ontario and Canada, and developed a specialization in class actions, mediation and dispute resolution. His education is from Queen's University in philosophy and politics; and then from McGill University for law. He is a member of the Law Society of Upper Canada.

Introduction

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Over the past five years, a consensus has emerged that free, prior, and informed consent ("FPIC") is a cornerstone component of international human rights law, particularly in relation to indigenous peoples. The foundation for FPIC as a concept originates in the right to self-determination and was given expression by the International Labor Organization ("ILO") Convention 169 ("ILO 169") in 1989.¹ The pace of FPIC development increased with the United Nations General Assembly's adoption of the Declaration of the Rights of Indigenous Peoples (the "Declaration") in March 2007.² The adoption of the UN Guiding Principles on Business and Human Rights, which clarified the responsibilities of business enterprises to respect all human rights, including indigenous peoples' rights, has also increased the focus on FPIC.³ While much progress has occurred in developing the academic and legal bases for FPIC and its importance to the human rights of indigenous peoples, a lack of understanding and consensus on how to "operationalize" FPIC persists.⁴ In our view, this ambiguity is frustrating achievement of the ultimate goal of FPIC - realization of respect for the human rights of indigenous peoples. We agree with Professor James S. Anaya, Special Rapporteur on the Rights of Indigenous Peoples, conclusion that "[b]ridging this gap requires the concerted, goal-oriented action of a myriad of governmental actors within the scope of their respective fields of competence, and involves a mixture of political will, technical capacity, and financial commitment."⁵

By virtue of the reality that natural resources are geographically fixed, extractives industries are uniquely situated to be catalysts for improving respect for the human rights of indigenous peoples, but consensus on operationalization of FPIC is required. To date, FPIC has been cited as the basis for challenging approvals of a number of mining and hydroelectric projects.⁶ Efforts to adopt laws and regulations for implementation of FPIC are progressing in several countries.⁷ However, these initiatives are being challenged by indigenous peoples.⁸ In part, opposition is due to the fact that the need for FPIC arises from the historic and persistent failure of States to perform their duty to protect the human rights of indigenous peoples.⁹ Implementation of FPIC requires fundamental changes to political, cultural, and social biases and perspectives that have developed over centuries. As a result, implementation of FPIC will necessarily be a gradual process and success will be achieved only through cooperation among government, civil society, business enterprises and indigenous peoples. Professor Anaya underscored this point in the concluding recommendation of his first report to the United Nations Human Right Commission in 2008:

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Civil society actors, including the educational sector and the media, religious groups, non-governmental organizations and the private sector, further have roles in supporting the broad societal changes required to meet the challenges involved in making the United Nations Declaration a living reality.¹⁰

Professor Anaya called on local and international non-governmental organizations ("NGOs") to be "key actors in disseminating the content of the Declaration and in facilitating a constructive dialogue among States, indigenous peoples and other relevant stakeholders in order to promote its implementation."¹¹

The thesis of this presentation is that FPIC is not a right unique to indigenous peoples, but an inherent component of the right of self-determination enjoyed by all people. However, in the context of the marginalization of indigenous peoples in the political and economic power structures of many, if not all, States, FPIC is an important tool that has the potential to remediate the historic and persistent failure to respect indigenous peoples' human rights.¹² Our objective is to offer pragmatic recommendations for implementation of FPIC in the specific context of extractive industry development.

In the first section of the paper, we will trace the evolution of the FPIC in international law and policy. At present, there is a shift from defining the normative content of FPIC to its practical implementation by governments, companies, indigenous groups, and civil society. In the second section, we will outline some of the key elements for implementing FPIC based on emerging guidance being developed for companies, particularly in the context of the extractives sector. In the final section, we will reflect upon the practical challenges that still exist for operationalizing FPIC based on our recent experiences with mining projects in Nunavut and Guatemala. We will then conclude with some observations about the way forward to ensure that FPIC becomes a means of building understanding, constructive, and sustainable partnerships around resource developments and contributes to improved respect of the human rights of indigenous peoples.

Developing consent about the overall legal, regulatory and policy framework for resource development at the national or regional through consultation between the State, indigenous peoples, industry and other stakeholders remains one of the main priorities for the effective implementation of FPIC. At the same time, companies in the extractive industry can also act as catalysts for implementing FPIC and improving respect for the human rights of indigenous peoples through their engagement efforts and due diligence at the project level. While FPIC cannot be fully implemented without the collaboration of the State and indigenous peoples, this paper seeks to highlight, in particular, some of the approaches that companies can take to help operationalize different facets of FPIC.

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Section One: Evolution of FPIC in international law and policy

Background

International recognition of indigenous peoples' human rights is based on the historic and persistent lack of respect for the human rights of indigenous peoples evident in colonization, dispossession of lands and resources, demonization of indigenous spiritual beliefs, dismissal of indigenous culture and values, discrimination, and economic and political marginalization.¹³ The United Nations expressed this concern in the Declaration preamble:

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,¹⁴

Indigenous people do not enjoy different or greater human rights than other people;¹⁵ however, the historic failure to respect the human rights of indigenous peoples requires remedial action.¹⁶ "Far from affirming special rights per se, the Declaration aims at repairing the ongoing consequences of the historical denials of the right to self-determination and other basic human rights affirmed in international instruments of general applicability."¹⁷

Implementation of remedial measures begins with acknowledgement and acceptance of indigenous peoples' values and norms that differ from western values and norms in important...