Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: developments and challenges ahead

Abstract

The indigenous rights regime fully recognises the special relationship that indigenous peoples have with their ancestral lands. While it is clear that, before implementing development projects on these lands, states must consult the indigenous peoples concerned, doubts remain as to whether they also have the legal obligation to obtain their consent before taking any such action. Determining the actual meaning of the principle of free, prior and informed consent (FPIC) is crucial to answer this question. This article will argue that a flexible approach to FPIC is gaining increasing recognition internationally. This understanding of FPIC has its normative foundations in the UN Declaration on the Rights of Indigenous Peoples and has been further elaborated by the Inter-American Court of Human Rights.