The true meaning of free, prior and informed consent: a response to the Swedish Ministry of Enterprise and Innovation

Last week, Politico reported that Sweden, among some other EU countries, is pushing back on incorporating stronger human rights due diligence requirements in the EU’s proposed deforestation regulation, which is in the last stages of trilogue negotiations. The pushback targets proposed amendments that would impose requirements for companies to conduct due diligence related to the land and resource rights of indigenous peoples and other forest communities – violation of whose rights is highly correlated with deforestation and forest degradation activities – a key ask of civil society organisations as well as the European Parliament.

One key basis for this pushback is a document prepared by the Swedish Ministry of Enterprise and Innovation, which sought to make a number of legal arguments against the amendments, with a particular focus on the inclusion of “free, prior and informed consent” (FPIC). It perhaps goes without saying that the interests and expertise of this Ministry are not likely to be first and foremost the respect for international human rights law. This article seeks to set out a more accurate and complete understanding of the international law basis for the right to free, prior and informed consent.

Is there a right to FPIC?

The paper from the Swedish Ministry of Enterprise and Innovation (MEI) states that as a matter of international law, FPIC “does not constitute an independent right in itself”. The paper instead refers to the right to “effective participation / consultation” and says that FPIC should be considered as a “principle” rather than as a right.

This is an exercise in selective reading and legal sophistry. It is true that the right to FPIC is sometimes described as part of a right to “effective participation” – but it is not described as the right to “effective participation / consultation”, a disingenuous conjunction of two concepts, and not a phrase which exists in international law.[1] “Effective participation” when used in international law does not amount to “mere” consultation. Rather, in sources that refer to effective participation, FPIC is generally described as an essential or compulsory element of the right.[2] As such, conceptualising FPIC as part of effective participation does not change its legal effect, or limit it to a mere obligation to consult. Moreover, beyond the right to effective participation, the right to FPIC is also considered to be derived from other rights, such as the right to self-determination and to non-discrimination.[3]   

Similarly, as a matter of general international human rights law, the question of whether FPIC is described as a “principle” or a “right” does not change its binding legal effect. When looking at key international human rights law sources, both “principle” and “right” are used interchangeably (often in the same document[4]) to refer to FPIC – although in recent times FPIC is much more commonly described as a right. In addition, international treaty bodies including the Committee on the Elimination of All Forms of Racial Discrimination (CERD) have, in their direct communications with Sweden, referred to the right to FPIC (frequently when expressing concern that Sweden is not respecting this right in respect of the Saami people, its own indigenous population).[5]  

Really, the entire argument about whether FPIC is a right or a principle is a distraction. Binding and justiciable obligations can equally be described as “principles” – for example, non-discrimination is generally described as a “principle”, but that makes it no less obligatory and binding. In contrast, there is a distinction between the legally binding nature and justiciability of rights and principles in the EU Charter of Fundamental Rights[6] - apparently what the MEI is seeking to invoke – but this is simply not applicable as a matter of international human rights law.  

Does FPIC apply to “any” activity?

The MEI paper also takes issue with the idea that FPIC applies to “any activity” that affects indigenous peoples’, or in appropriate circumstances other collective rightsholders’, lands or resources. The MEI expresses concern that this goes beyond what international law provides.

Firstly, this is extremely disingenuous, because the activities to which this provision may apply are already substantially constrained by the framework of the regulation – that is, deforestation and forest degradation of customary lands linked to the production of a small number of agricultural commodities or timber. Deforestation and forest degradation of customary lands due to the production of timber or these commodities are activities that are always likely to significantly affect the rights of indigenous peoples or other collective customary rightsholders.

Secondly, the reference to “any activity” is consistent with the terminology used in international law. For example, article 32(2) of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) states that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.[7]

It is important to note that this does not mean that, regardless of how minimal the impact of an activity, a State is never able to proceed if FPIC is not forthcoming (but nor does it mean that a State can always proceed regardless of consent – see further discussion in the following sections). It does mean however that whenever any activity is proposed that affects customary lands, it should be the subject of an FPIC process, involving genuine good faith negotiations with a view to reaching a mutually satisfactory outcome.[8]

On the contrary, it is important not to limit in advance the activities to which an FPIC process should apply, for example only to activities with “significant” impacts, precisely because those with customary rights to the land have a right to determine for themselves how significant an impact an activity would have, from their own economic, social and cultural standpoint.[9]

Does international law offer different “options” on how to fulfil the right to FPIC?

The MEI suggests that that international law offers States different “options” for how the right to free, prior and informed consent should be fulfilled. This reflects a fundamental misunderstanding of the position in international law.

 The correct understanding is that the requirements of FPIC are not fixed in advance, but dependent on the specific context and circumstances in which it is being applied. That is to say, the requirements of FPIC exist on a spectrum. The more significant the impacts on indigenous peoples or other peoples with collective rights, the more rigorous and robust the requirements of an FPIC process will be. This does not mean that the process requirements are “optional”, it means they need to be determined in relation to the specific case at hand.

It is also important to note that the right to FPIC is not only enshrined in UNDRIP,[10] but has also been derived from the International Covenant on Economic, Social and Cultural Rights (ICESCR)[11], the International Convention on the Elimination of all forms of Racial Discrimination (ICERD)[12], the International Covenant on Civil and Political Rights (ICCPR)[13] and the Convention on the Elimination of All Forms of Discrimination of Women (CEDAW).[14] Sweden is a party to all of these instruments. The requirements for compliance with these treaty obligations are cumulative – States must act in accordance with the authoritative guidance of all treaty bodies in respect of treaties to which they are a party, meeting the highest standard required. Equally, they cannot rely on guidance which has been superseded by further legal developments.

Does FPIC give indigenous peoples a right of veto?

The MEI also states that under international law “while [FPIC] is the objective, the state and the consultee may ultimately agree to disagree. Thus, according to international law, FPIC does not imply a right of veto”.

Several international experts have noted that framing the debate in terms of whether indigenous peoples have a right of veto over development projects “undermine[s] the legitimacy of the free, prior and informed consent concept”.[15] As the Special Rapporteur on the Rights of Indigenous Peoples has noted, “consent is not a freestanding device of legitimation … The principle of free, prior and informed consent … does not contemplate merely a yes to a predetermined decision, or a means to validate a deal that disadvantages affected indigenous peoples”.[16] Arguably, the refusal of a State to even countenance that an indigenous people may ever have the right of veto is a failure to engage in good faith negotiations required for an FPIC process.

The correct legal position is that FPIC will sometimes, but not always, mean that a project cannot lawfully proceed.[17] As with the requirements of the FPIC process itself, this depends significantly on the circumstances, and in particular how significant the impact will be on the indigenous peoples (or other affected peoples with collective customary rights). The Special Rapporteur on Indigenous Peoples expressed it as follows:

 

Necessarily, the strength or importance of the objective of achieving consent varies according to the circumstances and the indigenous interests involved. A significant, direct impact on indigenous peoples’ lives or territories establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent. In certain contexts, that presumption may harden into a prohibition of the measure or project in the absence of indigenous consent.[18]

 

As a matter of international law, proceeding with a project that directly affects indigenous peoples or other collective rightsholders’ lands when consent for the project has been withheld will generally require an exceptionally strong justification, based on the human rights framework (including that the project is necessary and proportionate to a legitimate public interest in a democratic society, and is in accordance with law). This means that stakeholders who proceed without consent by indigenous peoples move into a legal grey area and expose themselves to judicial review and other types of recourse mechanisms, potentially including international, regional and national tribunals, and by indigenous peoples’ own institutions.[19] What is clear is that in many cases, such stakeholders will be in direct violation of human rights obligations. In short, the fact that there is not absolute legal certainty about when a project can proceed without FPIC does not mean that it can automatically proceed without consent. Rather, the opposite – the general rule is that without consent, a project should not proceed.[20]

Can the deforestation regulation refer to UNDRIP, if it is a non-binding instrument?

The United Nations Declaration on the Rights of Indigenous Peoples is, like all declarations in international law, strictly a non-binding instrument. However, UNDRIP should not be understood as a standalone instrument which goes substantially beyond the broader body of international law (including binding instruments). Rather, as the Expert Mechanism on the Rights of Indigenous Peoples has pointed out:

 “The provisions of the Declaration, including those referring to free, prior and informed consent, do not create new rights for indigenous peoples, but rather provide a contextualized elaboration of general human rights principles and rights as they relate to the specific historic, cultural and social circumstances of indigenous peoples”.[21]

That is to say, UNDRIP is mostly a compilation and restatement of existing human rights law derived from binding instruments which collects these different strands in one document. Thus, the obligations arise as a matter of binding law, regardless of whether UNDRIP is specifically referred to.

But is it a problem for an EU regulation to refer to a non-binding declaration anyway? The short answer is no. There is absolutely no legal reason why a state should not enshrine the principles contained in a declaration within binding law – indeed, Canada has recently passed the United Nations Declaration on the Rights of Indigenous Peoples Act (2021), doing just that. For an example closer to home, the EU is also currently working on its own corporate sustainable due diligence directive, which seeks to create binding law derived from the (internationally non-binding) UN Guiding Principles on Business and Human Rights. The European Commission’s proposal for the directive also explicitly references UNDRIP as a source of human rights. It is a normal trajectory within international law for norms which begin as aspirational and non-binding to become binding over time, including through state actions to make them binding. The suggestion that including UNDRIP in the deforestation regulation "undermines” international law is simply nonsense.

Conclusion 

The Swedish Ministry for Enterprise and Innovation is seeking to give the cloak of legal authority to what is fundamentally a political position which seeks to deny the recognition of the rights of indigenous peoples. However, its paper is rife with inaccuracy, selective reading and elision of concepts. The result is a position which bears no resemblance to the true position under international law.

Really, this is about politics, power and money. It is no coincidence that the three countries rumoured to be pushing for the exclusion of indigenous peoples’ rights from the deforestation regulation – Sweden, Finland and France – all have indigenous peoples in their own territories (in the case of France, in its overseas territories). But the fact that European countries are among those at risk of violating these provisions makes it all the more important that the protection of the customary tenure rights and free, prior and informed consent of indigenous peoples, and other peoples and communities with collective customary traditions who are entitled to these rights, is included in the regulation. The EU wants to lead by example – this is the place to start.

 

[1] Poma Poma v. Peru (2006), CCPR/C/95/D/1457/2006, para. 7.6; CERD (1997), General Recommendation No. 23 on the rights of indigenous peoples.   

[2] From Poma Poma v Peru, note 1, para 7.6: “The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community”; from CERD Committee (1997), note 1, para 4(d): “The Committee calls on States Parties to … ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent”.   

[3] See e.g. Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) (2018), Free, prior and informed consent: a human rights-based approach, A/HRC/39/62, para 3, also para 14, where the report notes: “Free, prior and informed consent is a manifestation of indigenous peoples’ right to self-determine their political, social, economic and cultural priorities. It constitutes three interrelated and cumulative rights of indigenous peoples: the right to be consulted; the right to participate; and the right to their lands, territories and resources”. See also Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) (2022), General Recommendation on the Rights of Indigenous Women and Girls, CEDAW/C/GC/39, e.g. at para 6: “The prohibition of discrimination should also be implemented to ensure their rights to effective and equal participation in decision-making and to consultation, in and through their own representative institutions, in order to obtain their free, prior and informed consent before the adoption and implementation of legislative or administrative measures that may affect them. This set of rights lays the foundation for a holistic understanding of the individual and collective rights of Indigenous women. The violation of any of these or related rights constitutes discrimination against Indigenous women and girls.”

[4] See e.g. EMRIP, note 3; FAO (2016), Free, prior and informed consent – an indigenous peoples’ right and good practice for local communities, https://www.un.org/development/desa/indigenouspeoples/publications/2016/10/free-prior-and-informed-consent-an-indigenous-peoples-right-and-a-good-practice-for-local-communities-fao/ (accessed 2 December 2022).

[5] Letter from the CERD to Sweden under the early warning and urgent action procedure, Kallak/Gàllok mining concession and the free, prior and informed consent of Sami indigenous peoples in Jokkmokk, 29 April 2022, CERD/EWUAP/106 th session/2022/MJ/CS/ks, which states “The abovementioned allegations, if verified, could amount to a breach of the State party’s duty to respect and protect the rights of the Sami indigenous peoples, in particular the right to be consulted and to free, prior and informed consent.”; Agren v Sweden (2020), CERD/C/102/D/54/2013, para 6.9: “The Committee recalls that … [i]t has repeatedly recommended the adoption of legislation recognizing and protecting traditional Sami land rights, reflecting the centrality of reindeer husbandry to the way of life of the indigenous people of Sweden and enshrining the right to free, prior and informed consent into law, in accordance with international standards.” See also e.g. Committee on Economic Social and Cultural Rights (CESCR) (2016), Concluding observations: Sweden, E/C.12/SWE/CO/6, para 14.

[6] See EU Charter on Fundamental Rights articles 51 and 52.

[7] See also CERD (1997), note 1.

[8] Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, James Anaya (2009), Promotion and protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/12/34, para 48, “In all cases in which indigenous peoples’ particular interests are affected by a proposed measure, obtaining their consent should, in some degree, be an objective of the consultations.”

[9] EMRIP (2018), note 3, para 34: “The perspective of the indigenous peoples concerned on the potential broader impact of a decision is the starting point for assessing whether a legislative or administrative measure or any project affecting their lands or territories and other resources affects them. Indigenous peoples should have a major role in establishing whether the measure or project affects them at all and, if it does, the extent of the impact. Indigenous peoples may highlight possible harms that may not be clear to the State or project proponent, and may suggest mitigation measures to address those harms.” (references omitted).

[10] See UNDRIP, arts. 10, 19, 28, 29 and 32.

[11] Including articles 1 and 15. See CESCR, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, para. 12.

[12] In particular under article 5(v)(d) and the broader principle of non-discrimination, see CERD (1997), note 1, para. 4.

[13] Under articles 1 and 27. See e.g. Poma Poma v. Peru, note 1, paras. 7.4 and 7.6.   

[14] CEDAW, General Recommendation No. 39 (2022) on the rights of Indigenous women and girls, paras 6, 18, 23(h).

[15] EMRIP (2018), note 3, para 26(a); see also Report of the Special Rapporteur (2009), note 8, para 48.

[16] Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya (2013), Extractive industries and indigenous peoples, A/HRC/24/41, para 30.

[17] For examples of where a strict requirement of consent has been applied, see Saramaka Peoples v Suriname (2007) Inter-American Court of Human Rights, paras 134ff, and Saramaka Peoples v Suriname (interpretation decision) (2008), Inter-American Court of Human Rights, para 17; Endorois Peoples v Kenya (2009), African Commission of Human and Peoples’ Rights, para 226. Several United Nations treaty bodies have impliedly upheld FPIC as a strict requirement by requiring the return lands of which indigenous peoples were deprived without their free, prior and informed consent: see, e.g., CERD (1997), note 1, para. 5; CESCR, General Comment No. 21. Other national courts have held that projects that have proceeded without FPIC have violated the land or cultural rights of indigenous peoples or others with collective customary rights, see e.g. Statnett SF et al. v. Sør-Fosen sijte et al. (the Fosen Vind case), 11 October 2021, Supreme Court of Norway.

[18] Report of the Special Rapporteur (2009), note 8, para 47.

[19] See EMRIP (2018), note 3, paras 28 and 38-41.

[20] Report of the Special Rapporteur (2013), note 16, para 36.

[21] EMRIP (2018), note 3, para 3. See also Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, James Anaya (2009), Promotion and protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/9/9, para 18.