New Report on Free, Prior, and Informed Consent

Foley Hoag recently released a ground-breaking report on the relationship between companies and indigenous peoplesTalisman Energy commissioned this report at the request of two responsible investors, Bâtirente and Regroupement pour la responsabilité sociale des entreprises (“RRSE”).  The World Resources Institute (“WRI”), a think tank and thought leader on indigenous rights, was asked to provide a third party commentary on it.  The report was developed with substantial input from business and civil society.  The report focuses on the benefits and challenges of implementing a corporate free, prior, and informed consent (“FPIC”) policy, and also provides guidance on best practice for community engagement. The final report:

  • Reviews the international legal standards that address the responsibilities of states and companies to indigenous peoples, as well as the implications of evolving case law in domestic and international human rights courts. 
  • Highlights the evolution of voluntary commitments to respect indigenous rights, including commitments to obtain the FPIC of indigenous peoples.  
  • Concludes with recommendations regarding the components of a FPIC policy and implementation steps.

Indigenous rights constitute a rapidly evolving area in both international law and the practices of companies. Although international law principally creates obligations for governments, rather than companies, to respect indigenous rights, it nevertheless affects corporations. For example, international legal standards increasingly influence domestic courts, which can lead to the revocation of a company’s license if the government fails to carry out its duty to consult or obtain the consent of indigenous peoples. It is, therefore, timely for companies to consider revising their policies on indigenous peoples.

Companies that seek to implement a policy on free, prior, informed consent face a number of challenges. These include:

  • Identifying the customary users of land and the traditional representatives of the community.
  • Balancing the rights of indigenous peoples against the expectations of non-indigenous populations.

On the other hand, companies that implement a FPIC policy will enjoy benefits, such as a stronger social license to operate and a reduced risk of legal challenges to their projects.

The report is particularly timely, as the International Finance Corporation is reviewing its lending requirements regarding indigenous rights, including with regard to FPIC.  In addition, the U.S. government, one of four governments that voted against the U.N. Declaration on the Rights of Indigenous Peoples in 2007, is formally reviewing its position on the Declaration.  New Zealand, Australia, and Canada, the other three governments that initially voted against the Declaration, have already changed their positions and now support the Declaration.

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