Social Justice Report 2010

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Appendix 4: Elements of a common understanding of free, prior and informed
consent^[1]

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.

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^[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).