Free, Prior and Informed Consent

Free, Prior, and Informed Consent (FPIC) is a distinct right afforded to First Nations and other Indigenous Peoples under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), consistent with their fundamental and inherent right to self-determination.

FPIC: a collective right

FPIC empowers First Nations Peoples to offer or withhold consent, at any stage, as part of their participation in decision-making that concerns projects, laws and policies affecting their lives and lands, skies, waters and resources. In this sense, FPIC is a collective and procedural right. It has four main components:

Free – refers to consent given voluntarily and without coercion, intimidation or manipulation. It also refers to a process that is designed and self-directed by the community from whom consent is being sought, unencumbered by coercion, expectations or timelines that are externally imposed.

Prior – means that consent is sought sufficiently in advance of any authorisation or commencement of activities, at the early stages of a development or investment plan, and not only when the need arises to obtain approval from the community. When determining timelines, respect must be shown for time requirements of Indigenous consultation and consensus processes.

Informed – refers mainly to the nature of the engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process. Information should be accessible, culturally relevant and easily understandable, including in community languages and/or consistent with the oral traditions of many Indigenous cultures;

Consent – refers to the collective decision made by the rights-holders and reached through the customary decision-making processes of the affected Indigenous peoples or communities. Consent must be sought and granted or withheld according to the unique formal or informal political-administrative dynamic of each community. First Nations and other Indigenous peoples and communities must be able to participate through their own freely chosen representatives, while ensuring the participation of youth, women, the elderly and persons with disabilities in order that they might offer their unique perspectives.

While FPIC in the context of UNDRIP is a relatively recent articulation of contemporary international law, the foundational elements of FPIC are not new. Central to FPIC is the process of giving or withholding consent, a practice that has been developed and exercised by First Nations communities the world over for many thousands of years.

A unique and important component of FPIC is that consent is considered not just an individual but also a collective right, and as such must be granted by the community as a whole. What counts as ‘collective’ consent will differ depending on the community and its unique governance model. This means that FPIC is not a ‘one size fits all’ process and cannot be simply imported or dragged and dropped from one context, community or project into another.

Consent: beyond consultation

FPIC is often conflated or confused with the duty to consult, but the requirements and conceptual underpinning of FPIC goes further than consultation.

While the duty to consult has been established in international law through treaties such as the  International Labour Organization (ILO) Indigenous and Tribal Peoples Convention (No. 169), these obligations are incumbent upon States as opposed to being a distinct right that Indigenous Peoples possess. Furthermore, before UNDRIP, human rights instruments framed consent as an aim of consultation processes, but not a necessary requirement.

By contrast, UNDRIP sets out that FPIC must be obtained via consultation and cooperation with Indigenous Peoples “prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.” In this sense, UNDRIP goes beyond the duty to merely consult First Nations and other Indigenous Peoples and explicitly requires that their consent is granted prior to the commencement of any activities on their lands, as well as in an ongoing sense.

Case study: Santos and who speaks for Sea Country

In practice, the duty to obtain FPIC is often interpreted by corporations as merely the duty to consult, and even then the standards for consultation can be embarrassingly low. We can see this in cases like the ‘Barossa’ offshore gas development project in Australia, where energy company Santos had its $4.7 billion project approved despite objections from several Traditional Owners who claimed they were not consulted. Santos later claimed in court that it had sent two emails and a follow up phone call to the Tiwi Land Council, but that it did not have a duty to consult or seek consent from Traditional Owners as they did not count as “relevant persons” to consult (relevant persons being defined as those who have “functions, interests or activities” that may be affected by the activities to be carried out within the Operational Area of the project).

Judges Kenny and Mortimer JJ went on to find that the interests of the Traditional Owners in question, Mr Tipakalippa and the other Munupi clan members, were in fact “immediate and direct” and “well known to contemporary Australian law”. Therefore, Santos failed in its duty to consult.

As we can see, this case illustrates many of the complexities and misunderstandings inherent in operationalising notions of consultation and consent. Ultimately, what constitutes consultation and consent – and whether these processes have been adequate and meaningful – is for First Nations communities to decide.

Benefits and limitations

When FPIC processes are carried out in sincere and robust ways that are centred on the right to self-determination for First Nations and other Indigenous peoples, they hold great promise for these communities to freely determine their own economic, social and cultural development.

Some benefits of FPIC processes are:

• The design and implementation of economic, social and cultural development activities that are better aligned with First Nations and Indigenous Peoples’ needs and priorities, and which First Nations and Indigenous communities stand to benefit from;
• Inclusive participation that is better able to anticipate and mitigate potential risks (such as conflicts, harm to communities, environmental or cultural heritage damage), and foster trust-based relationships within a sustainable decision making process;
• Enabling and ensuring that companies and states respect the right of First Nations and other Indigenous peoples to control their lands and territories, and to participate fully in consultation and decision making about activities and projects on those territories;
• The potential to rectify and rebalance unequal power relationships; and
• Greater awareness of and respect for the unique governance systems and processes of First Nations and Indigenous communities.

Alongside these potential benefits, there are significant challenges to these rights being realised, as well as limitations to what FPIC both promises and can deliver. Some of these limitations are:

• Differing conceptions of consent and collectivity – in particular, the tendency of many states and corporations to operate on individualistic liberal notions of consent that may not represent or respect the conceptions held by First Nations communities. This includes corporations treating FPIC processes as obligatory and often minimal  ‘stakeholder consultation’;
• Lack of understanding of First Nations governance models and processes, including who to consult with – in practice, this can mean that formal representative bodies make decisions during consultations that do not reflect ‘grassroots’ wishes and do not include certain members of the community who hold the cultural authority to make such decisions;
• Narrow, static, outcome-driven interpretations of FPIC – FPIC is an ongoing process, not a ‘one time’ event or a box to tick, though it is often treated by states and corporations this way. Increasingly, particularly where it concerns resource development or extraction, a corporate version of FPIC is emerging in which consent is a transactional outcome borne of a commercial, rather than a governance, process;
• Power imbalances – there is often a gross power imbalance at play during FPIC processes due to the legacies and structures of ongoing colonisation, the vast economic and political advantage of states and corporations, as well as the enormous wealth and political momentum behind many of the proposed projects. This power imbalance can lead to a weakened or ultimately performative version of FPIC being carried out.

This country has a shocking record of decision-making for and often to the detriment of First Peoples, completely ignoring the principle of FPIC. This manifests in the failure of achieving the Closing the Gap targets, destruction of Country and cultural heritage –without consent of Traditional Owners and often even consultation, to name just a few.

For more on Free, Prior and Informed Consent, including what it can look like in practice, see our FPIC Factsheet.