Operational Guidance on:
Free, Prior and Informed Consent
Purpose & Summary
This guidance outlines requirements, best practices, and practical considerations for companies to fulfill their obligation to secure the Free, Prior and Informed Consent (FPIC) of Indigenous Peoples and Local Communities in relation to their own operations and supply chains. Specifically, the guidance elaborates upon Core Principle 2.2.3, which states that companies must:
“[e]nsure that, prior to any activity that may affect indigenous peoples’ and local communities’ rights, land, resources, territories, livelihoods, and food security, their free, prior and informed consent (FPIC) is secured. This is done in a culturally appropriate manner, in accordance with the traditions, norms, and values of these peoples and communities, and through the representatives and institutions they choose.”
This Principle is consistent with numerous binding international instruments affirming FPIC as a legal norm. It also aligns with a myriad of voluntary standards, initiatives, and frameworks for ethical supply chains. This Operational Guidance is not designed to duplicate guidance that is already available to companies, but references and builds upon this existing body of material to distill essential and common elements of FPIC while helping to clarify how companies can approach key challenges in the implementation of FPIC. The document provides a concise and practical overview of FPIC by addressing:
- What FPIC is and what its key elements are
- When the responsibility to secure FPIC arises
- What companies can do to demonstrate respect for the right to FPIC
- How companies may engage with government with regard to FPIC and associated consultations
- How companies can act in good faith to address a range of common challenges related to the implementation of FPIC
Topics in this Guidance
Free, Prior and Informed Consent (FPIC) is a collective human right of Indigenous Peoples and Local Communities (IP/LC) to give or withhold their consent prior to the commencement of any activity that may affect their rights, land, resources, territories, livelihoods, and food security. This right is exercised through representatives of their own choosing and in a manner consistent with their own customs, values, and norms. FPIC exists to promote, protect, and safeguard the full enjoyment and exercise of numerous underlying, fundamental human rights, including the rights to property, culture, and self-determination. For further elaboration on definitions and explanations of IP/LC, see the Definitions as well as Operational Guidance on Respecting the Rights of Indigenous Peoples and Local Communities.
Understanding the terminology associated with FPIC can help companies effectively contribute to, facilitate, lead, and assess FPIC processes.
- Free: Consent is given by the affected IP/LC voluntarily without coercion, duress, or intimidation.
- Prior: The consent is given before the specified activity is authorised or commenced.
- Informed: The consent is given after the IP/LC have received the relevant, timely, and culturally appropriate information necessary to make a fully informed decision.
- Consent: The IP/LC take a collective decision to grant or withhold approval of the specified activity.
FPIC is both a process and an outcome. As a process, FPIC is a series of information exchanges, consultation, internal deliberation, and negotiation steps conducted to seek consent from the affected IP/LC prior to implementing a given set of activities. This process may result in unqualified consent or consent with conditions for the proposed activities (or for a modified proposal), or it may result in the absence of consent. At the end of this process, the FPIC outcome is a written document that specifies what was or was not agreed to.
When the IP/LC provides consent, the written document further elaborates the terms of this consent, including the nature of the agreed activities, conditions placed on its implementation, monitoring plans, grievance mechanisms, and other terms or processes to ensure that agreed plans are duly enacted.
Not all FPIC processes lead to consent and it is the right of the affected IP/LC to withhold consent. If this is the outcome, then the company needs to accept that the specified activity cannot proceed as planned. However, if appropriate – and only if the IP/LC invites continued dialogue – then a modified proposal could then be developed and subject to further community engagement through the FPIC process.
1.1 Relationship between consultation and FPIC
Consultation with stakeholders (including IP/LC stakeholders) is an ongoing process that companies should engage in throughout the life of company operations and across supply chains to exchange information, identify and resolve challenges and problems, and thereby improve relations and outcomes for both the company and its stakeholders. Consultations with IP/LC are always required to ensure the right of meaningful and effective participation in the matters that may affect these groups. Consultation processes carried out in good faith should aim to reach agreement between the company and its stakeholders on the subject topics.
Good faith consultations largely share the same characteristics as an FPIC process. FPIC is realised through a good faith consultation process that:
- is triggered by particular circumstances (see Section 2)
- possesses certain characteristics (see Section 3) to help ensure that decisions truly reflect the principles of “free,” “prior,” “informed,” and “consent” as defined above
- has a discrete endpoint – the granting or withholding of consent – which is documented as the outcome of the FPIC process