This series has surveyed a breadth of permitting reform issues, most recently regarding tribal consultation within the United States. International mineral development permitting in or near areas of indigenous cultural and historical significance is uniquely complex. International indigenous consultation centers around the concept of free, prior, and informed consent (“FPIC”).

FPIC aims to enable self-determination in indigenous communities and provide voice and authority during decision making processes. Its strength and effectiveness depend on ratification and enforcement by national governments, and government critique of FPIC remains a common roadblock. Nonetheless, whether binding or not, FPIC and other parallel doctrines will drive global policy during the energy transition and will continue to gain importance to public and private entities as they develop mineral assets across borders.

FPIC and other parallel doctrines will drive global policy during the energy transition and will continue to gain importance to public and private entities as they develop mineral assets across borders.

Understanding FPIC starts with a breakdown of its parts. As described by the United Nations, free means without coercion, intimidation, or manipulation. Prior indicates consent is sufficiently in advance of an authorization or commencement of activity with due respect to indigenous consultation and consensus processes. Informed implies information is provided in a language and form understandable by the affected indigenous community including the nature, scope, duration, and motive of a proposed project; localities to be affected; economic, social, cultural, and environmental impacts; all involved actors; and procedures a project may entail.¹

“Consent” is a nuanced concept in the context of FPIC. Engagement with indigenous peoples as decision makers and recognizing their right to self-determination is fundamental to the implementation of FPIC. That said, FPIC does not create a veto over a project. The Institute for Human Rights and Business describes the element of “consent” as “the collective decision made by the rights-holders and reached through the customary decision-making processes of the communities.”² The process of working toward consent must engage the indigenous community on an equal footing and with autonomous decision making.

The first major step forward for FPIC came in 1989, when the International Labor Organization (“ILO”) adopted Convention 169 (“ILO 169”). Article 6 of the Convention requires governments consult with affected indigenous communities “in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.”³

Notably, ILO 169 neither coins “FPIC” explicitly nor requires gaining consent – only consultation with a goal of consent.⁴ The omission of a consent requirement may be viewed as an opportunity for exploitation by mineral companies, but in reality it creates a pitfall. Acting without consent can and often does cause delay, litigation, or other roadblocks to a company’s ability to develop a mineral site. While consultation is any important step towards indigenous protection, consent adds a layer of certainty missing in ILO 169. ILO 169 also lacks significant international adoption. Currently, twenty four countries have ratified ILO 169, most recently Germany in 2021. Many countries in South America have ratified ILO 169, suggesting mineral development on the continent requires compliance with the Convention’s tenets. Yet major global players, including the U.S., the UK, and China, have not ratified the Convention.⁵

The omission of a consent requirement may be viewed as an opportunity for exploitation by mineral companies, but in reality it creates a pitfall. Acting without consent can and often does cause delay, litigation, or other roadblocks to a company’s ability to develop a mineral site.

In 2007, the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”) explicitly memorialized FPIC.⁶ Under UNDRIP, countries must consult with indigenous peoples when legislation or proposed projects may affect them, provide indigenous peoples a right to set resource development strategies, and enact legislation or other measures to implement UNDRIP.⁷ Consultation and consent mechanisms in UNDRIP champion indigenous peoples’ right to self-determination. Beyond bolstering consent requirements, UNDRIP also requires restitution for resources and land previously taken from indigenous communities without obtaining FPIC.⁸

International support for UNDRIP far exceeds direct adoption of ILO 169; 143 UN members voted for adoption of UNDRIP. The United States, Canada, Australia, and New Zealand, all mineral rich countries with large indigenous population, originally voted to reject UNDRIP. Criticisms include practical concerns over the declaration’s compatibility with national constitutions and other laws and the heightened deference to indigenous development strategies. Each of the four countries has since endorsed UNDRIP to varying degrees.

One issue common to both ILO 169 and UNDRIP is the onus placed on governments to gain consent. Nonetheless, project proponents often play a critical role in advancing the FPIC process. Failure to have proactive engagement in the FPIC process can lead to challenges to mining projects.⁹ Thus, failure to garner support from affected indigenous communities often leads to unnecessary delays and expenses or ultimately blocks a project from progressing.

The permitting process for a mining project rests primarily on the laws of the host country and the process adopted by its ministries, agencies, and regulators. As noted above, many countries have adopted a process for consultation and engagement with indigenous communities. Also, investors and lenders often require some documented engagement with indigenous peoples as part of approval of financing for mining projects. Proactive consultation and engagement with indigenous communities ultimately leads to efficiency, cost saving, and a defensible development plan.

¹ United Nations, Economic and Social Council, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, Permanent Forum on Indigenous Issues: Fourth Session, New York (February 17, 2005)
² “What is Free, Prior and Informed Consent (FPIC)?”, Institute for Human Rights and Business (December 13, 2022).
³ ILO 169, Art. 6.
⁴ ILO 169 Art. 16. (Removal from indigenous land requires consent under ILO 169, but removal may still take place absent consent if national laws and regulations are followed and provide an opportunity for indigenous communities to represent themselves.)
⁵ Ratifications of C169 – Indigenous and Tribal Peoples Convention, 169.
⁶ UNDRIP Arts. 10, 11, 19, 28, 29, 32.
⁷ UNDRIP Arts. 17, 19, 30, 32, 36, 38.
⁸ UNDRIP Arts. 11 and 28.
⁹ Conservation International, Guidelines for Applying Free, Prior and Informed Consent, (Dec. 2013).