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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

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1. What

  • 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.

    • Consent

    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.

2. When

    • 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.

3. Who

    • 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.

4. How

    • 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.

[1] 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 (viewed 19 November 2010).