Native Title Report 2010: Appendix 3: Elements of a common understanding of free, prior and informed consent
Native Title Report 2010
Appendix 3: Elements of a common understanding of free, prior and informed
- Free should imply no coercion, intimidation or
- Prior should imply that consent has been sought sufficiently
in advance of any authorization or commencement of activities and that respect
is shown for time requirements of indigenous consultation/consensus
- Informed should imply that information is provided that covers
(at least) the following aspects:
the nature, size, pace, reversibility and scope of any proposed project or
the reason(s) for or purpose(s) of the project and / or activity
the duration of the above
the locality of areas that will be affected
a preliminary assessment of the likely economic, social, cultural and
environmental impact, including potential risks and fair and equitable
benefit-sharing in a context that respects the precautionary principle
personnel likely to be involved in the execution of the proposed project
(including indigenous peoples, private sector staff, research institutions,
government employees and others)
procedures that the project may entail.
Consultation and participation
are crucial components of a consent process. Consultation should be undertaken
in good faith. The parties should establish a dialogue allowing them to find
appropriate solutions in an atmosphere of mutual respect in good faith, and full
and equitable participation. Consultation requires time and an effective system
for communicating among interest-holders. Indigenous peoples should be able to
participate through their own freely chosen representatives and customary or
other institutions. The inclusion of a gender perspective and the participation
of indigenous women are essential, as well as participation of children and
youth, as appropriate. This process may include the option of withholding
Consent to any agreement should be interpreted as indigenous peoples have
reasonably understood it.
- FPIC should be sought sufficiently in advance of commencement or
authorization of activities, taking into account indigenous peoples’ own
decision-making processes, in phases of assessment, planning, implementation,
monitoring, evaluation and closure of a project.
- Indigenous peoples should specify which representative institutions are
entitled to express consent on behalf of the affected peoples or communities. In
free, prior and informed consent processes, indigenous peoples, United Nations
organizations and Governments should ensure a gender balance and take into
account the views of children and youth, as relevant.
- Information should be accurate and in a form that is accessible and
understandable, including in a language that the indigenous peoples will fully
understand. The format in which information is distributed should take into
account the oral traditions of indigenous peoples and their
5. Procedures / mechanisms
Mechanisms and procedures should be established to verify free, prior and
informed consent as described above, inter alia, mechanisms of oversight and
redress, including the creation of national ones.
As a core principle of free, prior and informed consent, all sides in a FPIC
process must have equal opportunity to debate any proposed
agreement/development/project. ‘Equal opportunity’ should be
understood to mean equal access to financial, human and material resources in
order for communities to fully and meaningfully debate in indigenous
language(s), as appropriate, or through any other agreed means on any agreement
or project that will have or may have an impact, whether positive or negative,
on their development as distinct peoples or an impact on their rights to their
territories and/or natural resources.
Free, prior and informed consent could be strengthened by establishing
procedures to challenge and to independently review these processes.
Determination that the elements of free, prior and informed consent have not
been respected may lead to the revocation of consent given.
It is recommended that all actors concerned, including private enterprise,
pay due attention to these elements.
 Extract from United Nations
Permanent Forum on Indigenous Issues, Report of the International Workshop on
Methodologies regarding Free, Prior and Informed Consent and Indigenous
(New York, 17–19 January 2005), UN Doc E/C.19/2005/3
(2005), paras 46–49. At http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html (viewed 19 November 2010).