Native Title Report 2010: Appendix 3: Elements of a common understanding of free, prior and informed consent

Native Title Report 2010

Appendix 3: Elements of a common understanding of free, prior and informed
consent^[1]

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1. What

• Free should imply no coercion, intimidation or
  manipulation.
• Prior should imply that consent has been sought sufficiently
  in advance of any authorization or commencement of activities and that respect
  is shown for time requirements of indigenous consultation/consensus
  processes.
• Informed should imply that information is provided that covers
  (at least) the following aspects:

  • the nature, size, pace, reversibility and scope of any proposed project or
    activity

  • the reason(s) for or purpose(s) of the project and / or activity

  • the duration of the above

  • the locality of areas that will be affected

  • a preliminary assessment of the likely economic, social, cultural and
    environmental impact, including potential risks and fair and equitable
    benefit-sharing in a context that respects the precautionary principle

  • personnel likely to be involved in the execution of the proposed project
    (including indigenous peoples, private sector staff, research institutions,
    government employees and others)

  • procedures that the project may entail.

• Consent

Consultation and participation
are crucial components of a consent process. Consultation should be undertaken
in good faith. The parties should establish a dialogue allowing them to find
appropriate solutions in an atmosphere of mutual respect in good faith, and full
and equitable participation. Consultation requires time and an effective system
for communicating among interest-holders. Indigenous peoples should be able to
participate through their own freely chosen representatives and customary or
other institutions. The inclusion of a gender perspective and the participation
of indigenous women are essential, as well as participation of children and
youth, as appropriate. This process may include the option of withholding
consent.

Consent to any agreement should be interpreted as indigenous peoples have
reasonably understood it.

2. When

• FPIC should be sought sufficiently in advance of commencement or
  authorization of activities, taking into account indigenous peoples’ own
  decision-making processes, in phases of assessment, planning, implementation,
  monitoring, evaluation and closure of a project.

3. Who

• Indigenous peoples should specify which representative institutions are
  entitled to express consent on behalf of the affected peoples or communities. In
  free, prior and informed consent processes, indigenous peoples, United Nations
  organizations and Governments should ensure a gender balance and take into
  account the views of children and youth, as relevant.

4. How

• Information should be accurate and in a form that is accessible and
  understandable, including in a language that the indigenous peoples will fully
  understand. The format in which information is distributed should take into
  account the oral traditions of indigenous peoples and their
  languages.

5. Procedures / mechanisms

• Mechanisms and procedures should be established to verify free, prior and
  informed consent as described above, inter alia, mechanisms of oversight and
  redress, including the creation of national ones.

• As a core principle of free, prior and informed consent, all sides in a FPIC
  process must have equal opportunity to debate any proposed
  agreement/development/project. ‘Equal opportunity’ should be
  understood to mean equal access to financial, human and material resources in
  order for communities to fully and meaningfully debate in indigenous
  language(s), as appropriate, or through any other agreed means on any agreement
  or project that will have or may have an impact, whether positive or negative,
  on their development as distinct peoples or an impact on their rights to their
  territories and/or natural resources.

• Free, prior and informed consent could be strengthened by establishing
  procedures to challenge and to independently review these processes.

• Determination that the elements of free, prior and informed consent have not
  been respected may lead to the revocation of consent given.

• It is recommended that all actors concerned, including private enterprise,
  pay due attention to these elements.
  

^[1] Extract from United Nations
Permanent Forum on Indigenous Issues, Report of the International Workshop on
Methodologies regarding Free, Prior and Informed Consent and Indigenous
Peoples

(New York, 17–19 January 2005), UN Doc E/C.19/2005/3
(2005), paras 46–49. At http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html (viewed 19 November 2010).