‘Do-it-Yourself FPIC’: The Political Grammar of Canada’s Normative Entrepreneurship in the Global Extractive Sector

The question of the consent of indigenous peoples is at least as old as colonization. Indeed, the consent of indigenous peoples was already an issue at the heart of treaty-making between colonial settlers and indigenous peoples. The issue of indigenous peoples’ consent, understood as their Free, Prior and Informed Consent (FPIC), has been re-emerging and gaining acceptance internationally in international Human Rights law over the last 30 years. When the new World Bank safeguards were adopted in 2016, one of the most discussed topics during the consultation rounds had been the integration in the safeguards of the concept of the FPIC of indigenous peoples, as it had been notoriously absent from the previous safeguards. Finally, FPIC was made part of the new safeguards. This paper first maps the concept of FPIC under international law from a postcolonial perspective. Then, it attempts to analyze the processes of operationalization of the concept by the World Bank in the new safeguards, drawing on Human Rights and on law and development literature. The paper argues that there is a tension between the re-emergence of FPIC as a customary norm and the fragmentation of the interpretations of the concept of consent by different actors. The operationalization of the concept of FPIC, understood as a negotiated process rather than a process of self-determination, may in fact limit its remedial objective and diminish its quality as a resistance tool.

This chapter offers a counter-genealogy of Free, Prior, and Informed Consent (FPIC) by tracing its institutional formation within the World Bank. While FPIC is typically framed as a right derived from international legal instruments such as ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), this chapter foregrounds the World Bank’s pivotal, though often overlooked, role in shaping FPIC as a managerial and contractual norm. Drawing on internal staff reports, academic work, and policy analysis, it argues that the Bank’s engagement with FPIC emerged not from a rights-based commitment, but as a strategic response to Indigenous resistance, one aimed at legitimizing development interventions while mitigating reputational and operational risks. The chapter identifies three key policy shifts in the Bank’s evolving approach to Indigenous peoples, from early references to ‘conscionable agreement’ in the 1980s, through a focus on ‘informed participation’ in the 1990s, to the formal adoption of FPIC in 2016 under Environmental and Social Standard 7 (ESS7). It contends that FPIC, as institutionalized by the Bank, draws more from contract law, specifically the doctrine of unconscionability, than from human rights law, functioning primarily as a procedural mechanism of legitimation. Framed in this way, FPIC operates as a mode of governmentality: it manages Indigenous inclusion, neutralizes contestation, and reconfigures participation into a tool of technocratic development governance. Rather than treating FPIC as a co-opted right, the chapter conceptualizes it as a hybrid norm subject to hegemonic contestation. In doing so, it challenges assumptions about consent’s emancipatory potential and raises broader questions about the limits of rights-based safeguards within post-colonial neoliberal development regimes.

Mexico has recently overhauled the hydrocarbon sector and opened it up to international oil companies (IOCs) after 76 years. The country is unique in that it has one of the highest Indigenous populations in the world at approximately 15% of the population, or 18.3 million people. Regardless of the current industry debate over what constitutes good international practice in terms of Free, Prior and Informed Consent (FPIC), IOCs will be obliged to implement expansive Indigenous peoples' engagement processes as they enter the Mexican market to not only comply with existing international and national regulations, but to mitigate risk through securing a strong Social License to Operate. The requirement of FPIC is not new; however, its application and IOCs' engagement procedures will have to: Navigate 25-year old national legislation that has been sporadically and poorly implemented, often leading to protracted and at times violent conflicts;Boost a national government that wants to be viewed by the world as addressing their legacy of human rights abuses, and by its domestic contingency as upholding its political responsibilities (SENER 2015);Restore vulnerable stakeholders' confidence in both the industry and engagement process due to an alleged legacy of negligence regarding stakeholder rights and consultations; andAlign with financial institutions' lending requirements for investors, which are becoming increasing used as a benchmark regardless of a project's borrowing status. The country and those companies exploiting its hydrocarbons need to be aligned on how FPIC should be applied in Mexico, not only to protect the Indigenous population but the future returns to the companies and the country. Developing such an engagement process has the potential to bring about widespread Indigenous support and minimize the likelihood of expensive work-stoppages or delays. This paper will review the regulatory authority of the Secretary of Energy (SENER), which is the body governing the hydrocarbon industry, and the evolution of the Indigenous engagement process. It will also summarize the recent FPIC debates within the C-Suite of major industry players and present the accepted norm for how companies generally apply FPIC principles. This paper will culminate in the proposal of new industry best practice for Indigenous peoples' engagement in Mexico incorporating FPIC.

This research discusses the challenges of implementing Free, Prior, and Informed Consent (FPIC) for indigenous peoples in national legal arrangements in Indonesia. FPIC is a principle that gives indigenous peoples the right to give consent to policies that affect their territories and resources freely, prior to full information, and without pressure. Although the FPIC rights of indigenous peoples are implicitly described and regulated in various national regulations, such as the 1945 Constitution, Forestry Law, Village Law, and environmental regulations, these arrangements do not necessarily guarantee the protection of indigenous peoples' rights over their customary territories. Explicit legal arrangements are needed to guarantee indigenous peoples' FPIC rights over their customary territories. This is because in its implementation, the application of FPIC rights still faces various challenges such as conflicts of interest with the State's Right to Control (HMN), low understanding in the field, and gender injustice being the main obstacles. This study uses a normative juridical approach to identify differences between international and national legal arrangements, and offers recommendations to improve the protection and implementation of FPIC in Indonesia. The research emphasizes the importance of explicit legal arrangements to achieve justice, prosperity and harmony between indigenous peoples and the government.

The Northern Review 47 (2018): 113–134The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has catalyzed Indigenous rights conversations in Canada around free, prior, and informed consent (FPIC). Discussions and debates on FPIC are ubiquitous in scholarly, legal, and political communities, at international and Canadian scales, as all players continue to grapple with understandings of the right to FPIC. The Yukon territory, where mineral extraction has a long history and a majority of First Nations have self-government and settled land claims, offers an ideal case for assessing how FPIC is being defined and exercised in light of possible mine developments. Surprisingly, semi-structured interviews with key informants representing Yukon governance institutions, and a document review, both completed in 2017, reveal limited explicit engagement with the FPIC concept. This paper serves to identify and make sense of this situation in an exploratory way. Three factors are offered to explain what appears to be a lack of engagement by these key Yukon institutions: 1) that modern treaties and associated established governance systems are well respected; 2) that key institutions are awaiting federal action; and 3) that explicit engagement with FPIC will eventually surface in the territory, but has been delayed by established governance systems and treaty implementation priorities. This dynamically evolving and yet ambiguous situation creates an opportunity for better dialogue with specific Indigenous communities and governments regarding their unique expectations and understandings of their right to exercise FPIC.

The politics of scale in global governance: Do more stringent international forest certification standards protect local rights in Russia?

Even though the principle of free, prior and informed consent (FPIC) is soft law, the need to respect, protect and fulfil the rights to be informed and to be involved in development projects is strongly backed in international legal instruments including inter alia the ILO Convention 169 Concerning Indigenous and Tribal People in Independent Countries (1998) and the UN Declaration on the Rights of Indigenous and Tribal People (2007). These instruments do not only appear to be the most comprehensive and advanced international legal instruments that deal with indigenous peoples' rights in terms of the FPIC, but also signal an addition to the growing body of international human rights law that serves to ensure the realisation and protection of the substantive environmental and other human rights of indigenous people, particularly in the context of land grabbing activities that have the potential to negatively impact on their rights. Such rights include, for example, the rights to be informed and to participate in decision-making processes with respect to development projects, including land grabbing activities. This implies an obligation on states party to such international agreements to ensure that indigenous people are informed about and are actively involved in both the negotiation and the implementation of land grabbing deals. However, because the latter often takes place against the background of non-transparent transactions which are inimical to the rights and interests of indigenous people, one may wonder why the principle of FPIC is not applicable during land grabbing transactions. Focusing on Cameroon, this article examines instances of land grabbing in the country in order to support this hypothesis. This is done by focusing specifically on the application of the principle of FPIC. The arguments in the article are inspired by international law in which the application of the principle in the context of land grabbing serves not only to protect the rights and interests of indigenous people but is also conducive to fostering and reinforcing the land governance regime of host countries involved in such deals. To this end, the article concludes that because the principle embodies aspects of procedural rights such as the rights to information and participation, which are often conspicuously lacking during land grabbing contracts, its application in and during land grabbing might be useful to set the basis for the recognition, promotion, and enforcement of local communities' rights in Cameroon.

Even though the principle of free, prior and informed consent (FPIC) is soft law, the need to respect, protect and fulfil the rights to be informed and to be involved in development projects is strongly backed in international legal instruments including inter alia the ILO Convention 169 Concerning Indigenous and Tribal People in Independent Countries (1998) and the UN Declaration on the Rights of Indigenous and Tribal People (2007). These instruments do not only appear to be the most comprehensive and advanced international legal instruments that deal with indigenous peoples' rights in terms of the FPIC, but also signal an addition to the growing body of international human rights law that serves to ensure the realisation and protection of the substantive environmental and other human rights of indigenous people, particularly in the context of land grabbing activities that have the potential to negatively impact on their rights. Such rights include, for example, the rights to be informed and to participate in decision-making processes with respect to development projects, including land grabbing activities. This implies an obligation on states party to such international agreements to ensure that indigenous people are informed about and are actively involved in both the negotiation and the implementation of land grabbing deals. However, because the latter often takes place against the background of non-transparent transactions which are inimical to the rights and interests of indigenous people, one may wonder why the principle of FPIC is not applicable during land grabbing transactions. Focusing on Cameroon, this article examines instances of land grabbing in the country in order to support this hypothesis. This is done by focusing specifically on the application of the principle of FPIC. The arguments in the article are inspired by international law in which the application of the principle in the context of land grabbing serves not only to protect the rights and interests of indigenous people but is also conducive to fostering and reinforcing the land governance regime of host countries involved in such deals. To this end, the article concludes that because the principle embodies aspects of procedural rights such as the rights to information and participation, which are often conspicuously lacking during land grabbing contracts, its application in and during land grabbing might be useful to set the basis for the recognition, promotion, and enforcement of local communities' rights in Cameroon.

Since the United Nations’ passage of its “Declaration on the Rights of Indigenous Peoples” in 2007, the global development institutions have increasingly adopted the demand of Indigenous Peoples’ Organizations for the Free, Prior and Informed Consent (FPIC) of local communities to be required for all projects materially affecting the lives and livelihoods of Indigenous Peoples (IPs). Yet, there have been few efforts to actually implement this new and potentially game-changing financing requirement. Feared as a potential veto power over development projects, FPIC challenges companies, nations and development institutions to readjust both the power equation and governance models that have ruled for a generation and more. The experience of implementing the first successful FPIC processes in the private sector, in the hydropower industry, and in South Asia and in Russia, however, has shown that FPIC can not only be implemented as a win-win-win for local governments, indigenous communities and projects, but it can also serve to institute a new type of stakeholder engagement that can institutionalize the FPIC principle into project-community relations. Yet for such a serendipitous outcome to be achieved, companies, projects and governments must be willing to make a wider space for effective collaboration for a new participation and partnership paradigm.

Free, prior, and informed consent (FPIC) has received notable consideration as Indigenous Peoples continue to establish participatory rights in natural resource extraction. Using a qualitative study design consisting of a series of interviews with relevant actors, we explored the meaning they ascribe to each component of FPIC and suggest approaches to incorporate FPIC in decisions related to the mining sector in Canada. The meanings given to “free”, “prior”, and “informed” were consistent with the published literature, with overlapping elements. “Consent” was considered from a few perspectives: what it means for a process, whether it represents veto, with whom the responsibility lies, and how best to achieve it. Our data showed significant convergence around the meanings given to FPIC, a strong desire among participants to find ways to implement FPIC, and a sense of shared responsibility to do so.

The Right to Veto - Or Emphasizing Adequate Decision-Making Processes? Clarifying the Scope of the Free, Prior and Informed Consent (FPIC) Requirement

Recent statements by United Nations bodies point to free, prior and informed consent (FPIC) as a potential requirement in the development of engineered gene drive applications. As a concept developed in the context of protecting Indigenous rights to self-determination in land development scenarios, FPIC would need to be extended to apply to the context of ecological editing. Without an explicit framework of application, FPIC could be interpreted as a narrowly framed process of community consultation focused on the social implications of technology, and award little formal or advisory power in decision-making to Indigenous peoples and local communities. In this paper, we argue for an articulation of FPIC that attends to issues of transparency, iterative community-scale consent, and shared power through co-development among Indigenous peoples, local communities, researchers and technology developers. In realizing a comprehensive FPIC process, researchers and developers have an opportunity to incorporate enhanced participation and social guidance mechanisms into the design, development and implementation of engineered gene drive applications.

When it comes to the planning and execution of resource use activities, indigenous peoples’ voices do not carry the same weight as those of states—not even when the activity at issue will have a profound and irreversible impact on indigenous peoples’ survival. As illustrated by how the norm of free, prior, and informed consent (FPIC) is implemented in the Philippines, this is due to competing state-centric international and domestic legal norms that privilege state prerogatives over natural resources vis-a-vis indigenous peoples’ rights over their territories. The doctrine of state sovereignty is so fundamental in international law that states’ acknowledgment of indigenous peoples’ rights, in general, and FPIC, in particular, continue to be qualified by this doctrine. FPIC, therefore, remains to be a regime of unfulfilled promise due to the inherent power imbalance in the international law framework in which it exists, which is based on a Western conception of state sovereignty that denies the (pre-)existence and validity of indigenous polities and their historical sovereignty. The way forward is to assert indigenous peoples’ participation in international law-making, based on their right to self-determination and historical sovereignty, to empower them to influence the content of other norms of international law that affect them—not just those international law norms that ostensibly exist specifically for the protection of indigenous peoples (such as FPIC).

In order to protect the rights of indigenous peoples in Indonesia and the Philippines, this study aims to examine the connection between substantive justice and the FPIC framework. Since Indonesia has not officially adopted Free, Prior, and Informed Consent (FPIC), there is a major difference between the two countries' legal systems in this respect. On top of that, it's a part of the Philippines' Indigenous Peoples' Rights Act (IPRA). Methods used in the study include conceptual frameworks, legal philosophy, comparative procedures, comparative approaches to policy and law, and normative (doctrinal) approaches to analysis. In spite of difficulties, the Philippines demonstrates a more thorough application of FPIC, but the results reveal that Indonesia's implementation is shallow and does not effectively protect the rights of indigenous groups. Separate bodies, such as the National Commission for the Rights and Protection of Indigenous Peoples (KNHPMA), should be established in Indonesia so that FPIC may be formally incorporated into laws, according to the paper. By fully integrating FPIC in Indonesia, we may achieve equity, inclusivity, and sustainable development based on respect for local knowledge. This might reduce agricultural disputes and improve the protection of indigenous peoples' human rights.

This chapter argues that Ecuador has implemented legislation that requires Free, Prior and Informed Consent (FPIC), but in practice continues to support extractivist development strategies, without observing the regulations and the real will of Indigenous Peoples. It analyses the degree of success that prior consultation and FPIC have had in the oil extraction project carried out in the ITT oil block in the Yasuni, after the Yasuni-ITT Initiative was abandoned in 2013. The struggle for participation in the decision-making process on this project reflects the important challenges in the construction of national and socio-environmental policies, and that is why it is a fundamental case to study regarding Indigenous Peoples' right to consultation and their FPIC. The legal framework on Indigenous Peoples' right to consultation and their FPIC in Ecuador has been clearly established within national and international legal instruments. It is clear that the implementation of the right to consultation and FPIC of Indigenous Peoples failed in the Yasuni-ITT case.