Historically, companies have faced significant challenges when managing their relationships with indigenous peoples. As businesses operate in increasingly remote areas, their ability to act in a manner respectful of the rights of indigenous peoples will only grow in importance. Indeed, companies face particularly acute challenges when operating on or near traditional indigenous lands. This is in part because indigenous peoples are particularly vulnerable to the impacts of commercial developments. Moreover, indigenous peoples enjoy special international rights, above and beyond those that apply to other communities. To respect these rights, companies must update their policies and procedures, and grapple with a new paradigm for engagement.
The right of indigenous peoples to give or withhold free, prior, and informed consent for the use of their lands, resources, traditional knowledge, or intellectual property (“FPIC”) is one of these special protections for indigenous peoples. It is a recent development in international law that has rapidly gained widespread support, although it is not always effectively implemented in national law or practice. Companies wishing to respect this right should build upon their existing consultation processes so that they can demonstrate that they obtained consent for their activities. Yet obtaining FPIC in a “check-the-box” manner is not sufficient to ensure that the company respects the rights of indigenous peoples. This is because FPIC is not an end in of itself, but rather a process that in turn protects a broad spectrum of internationally recognized human rights.
This Good Practice Note provides background on the history of FPIC, without taking a definitive viewpoint on its legal status. Indeed, FPIC is relevant to business regardless of its precise legal status since lenders, indigenous peoples, civil society, and other stakeholders increasingly expect companies to obtain consent. The Good Practice Note also explores the business case for obtaining FPIC and the challenges that are likely to arise in the process; outlines current company good practices to obtain FPIC; and discusses emerging practices that not only support FPIC but also long-term benefits for affected indigenous communities.
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