SEEKING CONSENT? THE LEGAL CHALLENGES IN CONSULTING INDIGENOUS PEOPLES FOR HYDROELECTRIC DAM PROJECTS

ABSTRACTThe 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) represented a watershed moment for Indigenous rights. Though wide-ranging in scope, a core element of UNDRIP is the recognition of rights to land; specifically, the right to free, prior and informed consent (FPIC) embedded in the Declaration. Given the widespread scale of insecurity and conflicts over land facing Indigenous peoples, FPIC represents a critical yet controversial development. This paper explores the links between UNDRIP/FPIC and land conflict in a unique context – sub-Saharan Africa. Notwithstanding the dismissive position of numerous African governments that ‘we are all Indigenous’, divisive debates around the politics of indigeneity are on the rise. Such debates regularly invoke the exclusionary concept of autochthony and centre on competing claims to rights to land. The paper thus considers the following questions: How have African governments responded to UNDRIP? What are the politics around applying the concept of Indigenous rights in the African context? Finally, could the right to FPIC provide a framework for preventing or possibly fuelling conflicts over land? By surveying key developments across the continent, the paper provides an African perspective on the promise and perils of UNDRIP.

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.

International and domestic rights frameworks are setting the stage for the full recognition of Indigenous Peoples’ rights in Canada. However, current political promises to restore Indigenous relations, to reconcile historic wrongs, and to foster mutual prosperity and well-being for all people within Canada remain woefully unfulfilled. Indigenous Peoples continue to call for full engagement with emerging Indigenous rights frameworks such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its principles of free, prior, and informed consent (FPIC). This article discusses the key findings from a multi-year university–community research partnership with Matawa First Nations in which we collaboratively seek to advance understanding of consultation processes and Indigenous experiences of and perspectives on FPIC. The article, based on several years of dialogue and interviews and a two-day workshop on FPIC, offers insight into Indigenous perspectives on FPIC advancing an Indigenous-informed relational approach to consultation and consent seeking.

Improving state compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be supported by monitoring and measurement. Current approaches to monitoring state compliance with the UNDRIP are qualitative and non-standardized, which limits comparability across time and across geopolitical lines. In this article, we introduce a novel approach to monitoring compliance with the UNDRIP and human rights more generally. This work highlights the potential advantages of using a performance improvement framework to clearly identify gaps in compliance, monitor state compliance with the Declaration over time, and effectively assess and compare state compliance. We describe the development of a standardized UNDRIP compliance assessment tool and report the process and findings of a pilot test of the tool. The pilot assessment utilized the UN Special Rapporteur on the Rights of Indigenous Peoples' (SRRIP; Anaya, 2014) findings on the situation of Indigenous Peoples in Canada in three thematic areas: (a) self-government and self-governance; (b) consultation and free, prior, and informed consent (FPIC); and (c) land and natural resources. While insufficient for a fulsome assessment of Canada’s compliance with the UNDRIP, we restricted ourselves to the report for two reasons: first, to test the applicability of the tool for quantifying qualitative data; and, second, to evaluate the degree to which the UN monitoring mechanism for Indigenous rights adheres to the Declaration’s Articles for monitoring and reporting. We discuss implications and opportunities for improving human rights monitoring and state implementation efforts.

The Job Creation Law (Law No. 11 of 2020) as a national strategic policy has sparked controversy, particularly concerning the protection of land rights for indigenous peoples and vulnerable groups. This research is grounded in the concern that the law shifts the orientation of agrarian policy from a social justice paradigm toward investment acceleration, potentially neglecting constitutional community rights. This study aims to critically examine the Job Creation Law and assess the relevance of international legal principles—especially Free, Prior, and Informed Consent (FPIC) under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)—in safeguarding land rights in Indonesia. Using a library research method and a critical-juridical approach, this study analyzes national legal provisions, international norms, and comparative agrarian regulations in other countries. The findings indicate that the Job Creation Law does not sufficiently incorporate the FPIC principle, weakening the bargaining power of indigenous and local communities in land acquisition for national projects. Furthermore, the lack of an independent oversight mechanism and an effective agrarian dispute resolution system undermines legal protection. Comparative analysis highlights the need to recognize collective rights and community participation. In conclusion, the law should be revised and harmonized with international legal standards to strengthen community rights through inclusive mechanisms and independent institutions

This article assesses the effectiveness of the Roundtable on Sustainable Palm Oil's (RSPO) Free, Prior and Informed Consent (FPIC) policy in respecting customary land rights in Indonesia using a policy implementation framework. The questions addressed are what is the practice of FPIC by oil palm companies? What is the performance of the companies in implementing the FPIC? Data from companies' documents and a survey of oil palm companies in West and Central Kalimantan show that while RSPO members are practicing the FPIC policy, their FPIC performance is inadequate, because of the absence of external monitoring of land acquisition and company reliance on inadequate Indonesian environmental law.

Following almost 25 years of work, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations General Assembly in 2007. UNDRIP has been widely recognised as an authoritative statement of human rights norms concerning Indigenous peoples around the world. However, meaningful implementation of UNDRIP has been slow. To better understand the pace and challenges facing implementation, we identify and analyze four key recurring themes that emerge from the growing literature on this topic. This includes (1) Indigenous self-determination versus state autonomy as a driver of potential conflict; (2) the meaning of Free, Prior, and Informed Consent (FPIC) in the context of UNDRIP; (3) the nexus between land, culture, and self-determination; and (4) Western/Global North influence over non-Western/Global South state implementation of UNDRIP. We examine several specific examples from across the globe to reveal the continuities and discontinuities across these four themes. The article concludes by offering ideas on how the limits of the present study and wider literature on UNDRIP might be rectified. That is, by incorporating a greater number of Indigenous perspectives on UNDRIP and adding more studies of governance and implementation challenges encountered in countries located in the Global South.

The Return of the Native

Free, Prior and Informed Consent (FPIC) plays a vital role in translating indigenous peoples’ right to self-determination into practice. Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognised the right to self-determination of indigenous peoples. Irrespective of any current recognition, the right to self-determination of indigenous peoples, including those of the Orang Asli (aboriginal peoples) in Peninsula Malaysia, are still at stake. The main objective of this article is to critically evaluate the compatibility of FPIC and the right to self-determination of the Orang Asli by looking at standards in international law. This article is a socio-legal study and adopts a qualitative approach. The current study analyses the concept of the right to self-determination of indigenous peoples under international law. The study also discusses the definition of FPIC as a manifestation of the right to self-determination. As this study focuses on the position of Malaysia’s legal framework towards the Orang Asli, it will evaluate the elements of FPIC as manifestations of the right to self-determination of the Orang Asli’s pursuant to Malaysian law as compared to the international law standards. Ultimately, suitable recommendations and possible solutions to improve the recognition of the right to self-determination of the Orang Asli will be presented. This is vital to ensure that protection of the Orang Asli’s right to self-determination is compatible with international law and thus assists the Malaysian State in meeting her duties and obligations under international law.

This article identifies the nature of Traditional Owners’ interests in Sea Country and addresses issues associated with all offshore energy projects—gas and wind. Exploring the impacts of offshore development on First Nations’ cultural heritage, the article proposes integration of free, prior and informed consent (FPIC) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), into the regulatory and legislative offshore environment. In the Australian context, this particularly regards administrative and regulatory reforms to overcome uncertainty arising from recent decisions in the Federal Court. The international focus on new energy has fast-tracked many processes that sideline First Nations’ rights, hitherto understood within the onshore minerals extraction regimes. The reforms proposed in this article recognise an international commitment to enact the principles contained in the UNDRIP and other relevant international law.

This chapter begins with a brief history of the Canadian government’s mistreatment of Indigenous people and an overview of the legal frameworks governing Indigenous rights in Canada. Broadly speaking, aboriginal rights are sui generis, or unique, rights held by aboriginal peoples ‘by reason of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada’. Treaty rights arise from treaties or land agreements between Indigenous groups and the Canadian government. The chapter then presents a background of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), focusing on its core principles of free, prior, and informed consent (FPIC) and the corresponding duty to consult. It also examines potential issues and tensions that may arise in adopting UNDRIP as domestic law in Canada. Finally, the chapter looks ahead and discusses strategies to build partnerships between Indigenous groups and the Canadian government as a path forward to achieving reconciliation.

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.

How to assess the issue of indigenous land rights in the face of man-m⁠a⁠d⁠e climate change and Amazon fires? How to classify the EU free trade agreement „Mercosur“ and relevant climate, environmental and indigenous rights? What are legal opportunities for indigenous people(s) on the international, inter-American and EU level, to prevent the loss of land and forests, and to protect themselves from climate change? On the basis of indigenous land and environmental rights in Brazil and reactions to the Amazon fires, environmental regulations of the "Mercosur Pact" as well as concerned human and indigenous rights are discussed. Further, this article deals with relevant inter-American law (individual indigenous land rights) and international law (collective land rights). Environmental and climate law provide legal and political options for indigenous people(s), for instance in Brasil. Negative impacts of climate actions on indigenous peoples, the competition between environmental protection areas and indigenous territories, the inclusion of indigenous knowledge in sustainable environmental protection and the allocation of Global Public Goods are discussed. There are various interactions between climate and biodiversity protection, human rights, indigenous peoples rights, and free trade between the EU and South America. While protecting forests as a carbon sink, negative environmental or social consequences must be avoided. Like trade agreements, environmental standards for the protection of the Brazilian Amazon rain forest should be enforceable. To reduce deforestation and to confine the effects of climate change, indigenous peoples rights have to be strengthened. The free, prior, and informed consent of indigenous peoples to projects that may affect their territories is essential. It requires effective, coordinated solutions to protect human rights and indigenous land rights, and it needs a sustainable preservation of climate and forests - nationally and internationally. A collapse of the Amazon forest ecosystem would have global climate effects. In Brazil, alternatives to deforestation and destruction are: strengthening the rule of law and agro-ecology, and to defend indigenous territories.

French Guiana, located in South America, hosts over 10,000 Indigenous Peoples, principally the Kali’na Tileuyu, Lokono and Pahikweneh, Wayãpi, Teko and Wayana people. Despite making up around 4% of the total population, Indigenous Peoples in French Guiana continue to face systematic challenges in being able to fully enjoy their human rights and rights as Indigenous Peoples. As an overseas territory of France, French Guiana falls under the governance of France and is fully integrated as an overseas department, separate from other overseas territories such as New Caledonia. This full integration has classified Indigenous Peoples as French People, making it not only difficult to get estimates of the actual number of Indigenous Peoples in French Guiana as the French Constitution prohibits ethnic statistics, but also prevent the ability of Indigenous Peoples to obtain their right to self-determination and control over their own land as provided in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Therefore, this paper will discuss the violations of the UN Declaration on the Rights of Indigenous Peoples committed by France that hinders their attainment to their fundamental freedoms and basic human rights. To do so, this paper will firstly begin by discussing the implementation of the UNDRIP in French Guiana in reference to several articles. In explaining the various articles, it will demonstrate how the French government’s recent actions continue to lead to the destruction of Indigenous territories and threaten their survival. Moreover, this paper will focus on articles 3, 10, 25, 29 which pertain to the right to self-determination, the right to land and territories, and the right to protect biodiversity. These rights alongside the right to Free, Prior and Informed Consent (FPIC) should allow Indigenous Peoples to exercise control over decisions that essentially affect not only their way of life but also their existence, particularly considering the history of Indigenous Peoples that have frequently been the “first victims of development activities.”