Understanding consent: the history and practical challenges to implement FPIC in the transnational mining sector

Topic: Understanding consent: the history and practical challenges to implement FPIC in the transnational mining sector

Presenter: Stephen Young - PhD Candidate, TC Beirne School of Law

The United Nations Declaration on the Rights of Indigenous Peoples actualized the dreams of many Indigenous peoples to have international personality and recognize certain demands. One of those demands was the right to free, prior and informed consent (FPIC). FPIC is regarded as the right of indigenous peoples to freely give or withhold their consent to any decision that will affect their lands, territories or livelihoods, which has been called transformative. This thesis tests whether FPIC has any effect and if it is transformative by examining how FPIC is being used in the mining industry. There is a general consensus that FPIC is an international norm stemming from multiple and varying sources, primarily non-binding or soft-law instruments. As an international norm, FPIC has two problems: its status in various soft-law instruments and how it can be used as a non-legally binding norm. This thesis argues that problems surrounding FPICs status and use are only problems under Old Governance models of international regulation, which assume that greater obligation is derived from greater definitional precision and delegation. Instead, this thesis presents the view that FPIC is better understood under New Governance Theory, a view of international regulation that places non-state actors and voluntary norms, rather than State-mandated norms, as the central feature of the regulatory regime. New Governance Theory provides several benefits: it can better explain the relationship between Indigenous peoples, States and industry, why FPICs status carries a level of obligation, and provide a metric for measuring if FPIC has been integrated into mining projects. 

Contact: Claire Lam, ph: (336) 57903, email: c.lam@law.uq.edu.au