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10 Nw. U. J. Int'l Hum. Rts. 54 (2011-2012)
The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law

handle is hein.journals/jihr10 and id is 54 raw text is: NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law Tara Ward* I. INTRODUCTION The right to free, prior, and informed consent (FPIC) in relation to development projects, resource extraction, and other investment projects within the territory of indigenous peoples is currently being debated within international law. On a basic level, the concept of FPIC is contained within its phrasing: it is the right of indigenous peoples to make free and informed choices about the development of their lands and resources. The basic principles of FPIC are to ensure that indigenous peoples are not coerced or intimidated, that their consent is sought and freely given prior to the authorisation or start of any activities, that they have full information about the scope and impacts of any proposed developments, and that ultimately their choices to give or withhold consent are respected.' This article explores the development of FPIC within international law. It does so by examining the development of indigenous peoples' rights of participation, consultation, and consent within international law, and asks whether these rights represent a customary international legal principle as of yet. It then applies these standards to two distinct cases. The first is the case of the Lubicon Cree in Northern Alberta, Canada, which revolves around a historic land claim dispute. Ultimately, the lack of clarity regarding the status of their rights to land has severely limited the ability of the Lubicon Cree to exercise their participation rights. The second case is that of the Mayan communities of Sipacapa and San Miguel Ixtahuacan, Guatemala, and the development of a gold mine within their territory. The Mayan communities have clearly articulated their struggle as the failure of both the company involved and the Guatemalan government to effectively consult them prior to the granting of either the exploration or exploitation licenses. These cases are in distinct political, social, judicial, and legislative contexts, but together provide insight into the challenges that exist for indigenous peoples in exercising their participation rights. This article finds that although a customary international legal principle that addresses indigenous peoples' full right to FPIC does not yet exist, there is a clear consensus within international human rights jurisprudence that at a minimum States must engage in good faith * Tara Ward has an L.L.M in Human Rights from the University of East London, a Masters of Education in Studies in Lifelong Learning from Mount Saint Vincent University, and a Bachelor in Environmental Studies from York University. She has worked extensively in support of human rights defenders with Peace Brigades International and her research interests revolve around the framework for business and human rights with a particular focus on the extractive industries. 1 U.N. Comm'n. on Human Rights, Sub-Comm. on the Promotion and Protection of Human Rights Working Group on Indigenous Populations, Working Paper: Standard-Setting: Legal Commentary on the Concept ofFree, Prior and Informed Consent, T 57, U.N. Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005 (July 14, 2005) (prepared by Antoanella-lulia Motoc and the Tebtebba Foundation). 54 [ 2 011

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