Public Lab Research note

Free, prior informed consent obligation to Indigenous Tribes

by JuliaGuerrein | October 23, 2022 00:19 23 Oct 00:19 | #35725 | #35725

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The principle of Free, Prior Informed Consent (FPIC) is an obligation in international law. As explained by the Food and Agriculture Organization (FAO) of the United Nations, Free, Prior Informed Consent respects and includes Indigenous people while also promoting their issues. The "free" piece means that the Indigenous people who are likely to be impacted by an action give their consent freely, that is without being coerced, intimidated, or manipulated. "Prior" means that whoever is doing the action, whether that be a government or a private entity, seek consent from the Indigenous tribe before any authorization or commencement of the activities. Indigenous people are properly "informed" when they are engaged in the process and are given adequate information to base consent on. Finally, "consent" encompasses a collective decision made by Indigenous communities, who hold rights to land, knowledge, resources, their culture, and more.

In international law, FPIC comes from the right to self-determination. FPIC is generally applied through specific treaties and declarations that countries, as Parties, sign onto. Through many instruments and implementations, the overall consensus is that nations must have good faith consultations with Indigenous peoples before gaining access to their resources or acting in a way that could harm Indigenous peoples.

In 2007, the United Nations General Assembly adopted the "United Nations Declaration on the Rights of Indigenous Peoples." Several Articles in the Declaration specifically reference FPIC. Article 10 requires that Indigenous peoples cannot be relocated without FPIC and that they must receive "just and fair compensation and, where possible, with the option of return." Article 11 requires countries to provide redress for cultural, intellectual, religious, and spiritual property taken without Indigenous peoples' FPIC. Article 19 says "States shall consult and cooperate in good faith with the indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them." Similar to Article 11, Article 28 requires redress when Indigenous peoples' land is taken from them without FPIC. Article 29 ensures that countries cannot store or dispose of hazardous materials on Indigenous land or territories without their FPIC. Finally, Article 32 says that "States shall consult and cooperate in good faith with 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 exploration of mineral, water or other resources." Although the Declaration is non-binding, therefore considered "soft law," it sets out ideals for nations to implement into national law.

Nations have translated FPIC from an international principle, which is generally non-binding and non-enforceable, into binding and enforceable national laws. The Declaration encourages nations to "provide effective mechanisms for prevention" and redress of actions that is meant to harm Indigenous people. The harm could be to their culture, land, resources, or rights. Disappointingly, the United States Government does not have any national laws on FPIC.

The State of Minnesota has translated FPIC into a state requirement. On April 4, 2019, Minnesota Governor Tim Walz issued Executive Order (EO) 19-24, titled "Affirming the Government to Government Relationship between the State of Minnesota and Minnesota Tribal Nations: Providing for Consultation, Coordination, and Cooperation." This EO recognizes the important relationship between the State of Minnesota and the Minnesota Tribal Nations. The EO requires the State of Minnesota to engage in "[m]eaningful and timely consultation" with the Minnesota Tribal Nations to "facilitate better understanding and informed decisions..." Therefore, all state agencies in Minnesota must consult with Minnesota Tribal Nations prior to allowing projects that could potentially impact the Minnesota Tribal Nations.

Minnesota's EO is a first step towards honoring the international law principle of FPIC. EOs should only be a temporary solution because the next president or governor could repeal them unilaterally. Because of this both, the U.S. Government and the Minnesota Legislature need to honor FPIC through legislation that codifies FPIC into law.


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