Chapter 8 The ‘Right’ to Free, Prior and Informed Consent: Evolving Customary International Law

In: Courts and Diversity
George Barrie
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In the 1990s, international law experienced significant judicial development regarding claims by indigenous people, particularly in the Americas and then spreading to Africa. These claims were prompted by the increasing global demand for natural resources. This demand led to resource exploitation in territories traditionally occupied by indigenous peoples, who in most instances were heavily dependent on their natural environment. Such exploitation impacted severely on the lives of indigenous peoples, especially their rights to property, culture, religion, physical well-being, clean environment and the right to pursue their own priorities regarding their development – all rights emanating from the right to self-determination. This right to self-determination is a cardinal principle of international law and in an evolutionary way has given rise to the concept of Free, Prior and Informed Consent (FPIC). FPIC has been outlined in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007, which in essence requires that indigenous peoples have the right to accept or reject decisions, especially regarding natural resource exploitation, that affect their lives or territories. UNDRIP is supported by various hard-law and soft-law international instruments. This chapter investigates how FPIC has developed into an emerging rule of customary international law and has resonated in jurisdictions such as Canada, Latin America and Africa – all areas with significant indigenous populations. In the concluding section, the chapter investigates the application of this emerging concept of FPIC by the Indonesian Constitutional Court. The view is expressed that this court sees FPIC as critical to resource development stakeholders – albeit in an implied manner – and sees FPIC as best practice for protecting the rights of indigenous peoples in natural resources projects.

1 Introduction

In the 1990s, international law became an active field of judicial development, especially regarding claims of indigenous peoples at the national level. Such claims were wrapped in language drawn from the rapidly developing international law on self-determination. The shape that international law took during this period was extremely attractive to indigenous people, specifically with regard to land claims. Also during the 1990s, international law and municipal law converged with much of the judicial vocabulary channeled through international institutions. The field of indigenous peoples’ rights travelled rapidly from a smattering of norms located in disparate instruments largely associated with the remit of the International Labour Organization (ilo) and as a dimension of minority rights, to being a distinct emerging field demanding the attention of the United Nations (UN). The imprimatur for the UN to become involved was the 1982 UN Working Group on Indigenous Populations, which reviewed developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations.

Thirty years later, in 2012, at its Sofia meeting, the International Law Association (ila) adopted a resolution to produce a report on which rights of indigenous peoples had or had not developed into customary international law. One of the issues it was envisaged to address was that of consultation with indigenous peoples. Various articles in the 2008 United Nations Declaration on the Rights of Indigenous Peoples (undrip)1 make reference to such consultation, especially Article 19, which states:

States shall consult and cooperate in good faith with the indigenous people concerned 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.

It is the purpose of this chapter to set out how the right of consultation and the concomitant right of free, prior and informed consent (fpic) in decisions which affect indigenous peoples developed into customary international law. How this came about was an evolutionary process. This evolutionary process will be illustrated by reference to resolutions of international organs and case law emanating from Canada, Africa, and the Americas. Due to the constraints of fitting above into a single chapter representing such a wide spectrum of jurisprudence relating to diversity and plurality, the chapter will be approached with a broad brush. Space does not allow for an in-depth discussion of the various aspects referred to, especially the case law, but it should at least whet the appetite of interested readers and lead them to more extensive sources.

The general introduction will be followed by sections – some more brief than others – on the meaning of undrip and its legal status; defining indigenous peoples; decisions of Canadian courts; decisions of the African Commission on Human and Peoples’ Rights (achpr); the role of the inter-American system of human rights; the introduction of fpic into the Southern African legal lexicon; the role of customary international law; and finally a discussion of two Indonesian Constitutional Court judgements, Decision Number 35/puux /2012 and Decision Number 95/ puuxii / 2014.

2 undrip

Indigenous rights are different from minority rights. Minorities have a right to their culture, education and religion, as indigenous peoples do. But there is a fundamental difference in that indigenous peoples, as distinct communities, have a right to self-determination and a profound relationship with traditional lands and territories. The rights of indigenous peoples to their lands, territories and natural resources and other ancillary rights flow from their right to self-determination.

This realization led to undrip.2 Article 3 of undrip affirms that “Indigenous peoples have the right to self-determination. By that right they freely determine their political status and freely pursue their economic, social and cultural development.” Article 26 of undrip affirms that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Article 10 affirms that indigenous peoples shall not be forcibly removed from their lands and territories and that “no relocations shall take place without the free, prior and informed consent of the indigenous people concerned.” Article 32(2) emphatically requires states to “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.”

An important characteristic of undrip is its affirmation of the collective rights of indigenous peoples which are “indispensable for their existence, well-being and integral development as a peoples.”3 A 1989 UN report on racism4 concluded that the effective protection of individual human rights and fundamental freedoms of indigenous peoples cannot be realized without the recognition of their collective rights. For the past five decades, the collective rights of indigenous peoples have been addressed by diverse UN human rights bodies, so it is exceedingly difficult for any UN member state to argue that the collective rights of indigenous peoples are not human rights.

undrip did not create any new rights. It was the harvest of many seeds planted previously as it were. Its foundation stemmed from two conventions drafted by the ilo. First, mention must be made of the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries, known as Convention No. 107 of 1957. Second, most important was the Convention on Indigenous and Tribal Peoples No. 169 of 1989 (ilo Convention 169)5 which came into force on 5 September 1991. Article 4 of ilo Convention 169 mandates that “special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, culture and environment” of indigenous and tribal peoples, and that “such special measures shall not be contrary to the freely-expressed wishes of the people concerned.”

In addition, ilo Convention No 169 in Article 16(2) states that indigenous and tribal peoples shall not be removed from the lands they occupy. If necessary as an exceptional measure, such relocation shall take place only with the free and informed consent. Article 33 requires states to consult with indigenous peoples and ensure their informed participation in decisions pertaining to development, national institutions and programs, cultural protection and resources.

ilo Convention 169 Article 14 was a particular focal point for the elaboration of indigenous rights at international law, especially land rights. It states:
  1. 1.The rights of ownership and possession of the peoples concerned over the lands which “they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally have access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
  2. 2.Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possessions.
  3. 3.Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

During the 1990s and beyond, a series of communications and reports by UN human rights monitoring bodies consistently recognized indigenous peoples’ right to their traditional lands and territories, as well as compensation for any expropriation. These recognitions were based on the understanding that such rights are integral to the collective human rights of indigenous communities, ensuring their ability to fully enjoy and practice of their unique cultures.

Reference to consultation, participation and consent of indigenous peoples regarding their development can also be found in the UN Declaration on the Right to Development,6 which mentions in Article 2(3) that the right to development includes “active, free and meaningful participation in development.”7

A further example is the UN General Assembly’s Programme of Action for the Second International Decade of the World’s Indigenous People.8 One of the objectives of this Programme was in “promoting full and effective participation of indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands or territories, their cultural identity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent.”

This basically echoes the stance of the Committee on the Elimination of Racial Discrimination (cerd), which, in its General Recommendation xxiii on the Rights of Indigenous People, called on states to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interest are taken without their informed consent.”9

The International Convention on Economic Social and Cultural Rights (1996) (icescr)10 and the International Convention on Civil and Political Rights (1996) (iccpr)11 share a common Article 1 that affirms the rights of all peoples to self-determination. By virtue of this right, all peoples “freely determine their political status and freely pursue their economic, social and cultural development.” In monitoring state compliance with the icescr, the Committee on Economic, Social and Cultural Rights (cescr) has highlighted the need for states to obtain indigenous people’s consent in matters of resource exploitation. For instance, in its 2001 Concluding Observations on the periodic report on Colombia, the cescr noted with regret that the traditional lands of indigenous peoples have been reduced or occupied, without their consent, by timber, mining and oil companies, at the expense of the exercise of their culture and the equilibrium of the ecosystem.12 Likewise, in 2004 the cescr stated in relation to Ecuador that it was deeply concerned that natural extracting concessions had been granted to international companies without the full consent of the communities concerned.13

Despite undrip being a non-binding declaration, it is not without any standard-setting significance. Its adoption was supported by 144 states, while 11 states abstained and four states voted against it. Those four states (Australia, Canada, the United States and New Zealand) subsequently endorsed undrip. Due consideration must be given to the major influence on the development of international law by other UN declarations such as the Universal Declaration on Human Rights;14 the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space;15 and the Declaration on the Granting of Independence to Colonial Countries and Peoples.16 In Filartiga v. Pena-Irala17 the US Second Circuit Court of Appeals declared that UN declarations are significant because they specify with great precision the obligations of UN member states. undrip is unarguably such an international instrument that specifically addresses the obligations of states towards their indigenous peoples. In Simon v. Canada,18 for instance, the Federal Court held that while undrip does not create substantive rights, it nevertheless favors an interpretation that will embody its values.

3 Definition of Indigenous People

Having determined the legal status of undrip, it is also opportune at this juncture to briefly define the term indigenous people. For purposes of this chapter, the following definition can be accepted as being authoritative.

This definition sees indigenous people as:

Communities, people’s and nations … which have a historical continuity with pre-invasion and pre-colonial societies, that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in these territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.19

The term ‘indigenous peoples’ however has different nomenclatures in English. It is also synonymous with the term ‘aboriginal peoples’. In this chapter, the terms are used generically depending on the context, be it indigenous/aboriginal peoples in Canada, Africa, South America or Indonesia. While the terms ‘indigenous’ and ‘aboriginal’ are used interchangeably throughout this chapter, it is not the purpose of this chapter to engage in semantic debates about the connotations of these words. Attempting to determine who qualifies as indigenous or aboriginal is an impossible task due to the passage of time. The reason being that the conquests or assimilation of the original inhabitants occurred hundreds rather than scores of years ago. The above definition appears to refer mainly to Western expansion and does raise questions regarding its applicability to pre-invasion and pre-colonial societies. It must be noted that neither ilo Convention 169 nor undrip define ‘indigenous people’.

4 Canadian Courts and the Duty to Consult Indigenous Peoples

Canadian courts have always accepted that they have a duty to consult indigenous peoples. This duty emanates from Section 35 of the Constitution Act 1982, which declares that “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” This section has been interpreted taking into account evolving international norms on this duty.20 In R v. Sparrow21 the Canadian Supreme Court referred to a duty to consult as emanating from Section 35 of the Constitution, which recognizes aboriginal rights. In this case, the ‘duty to consult’ was based on a constitutional imperative and had no international law connotation. After the Sparrow case, the developing customary international law duty of consulting aboriginal people in Canada merges with the Constitutional imperative of Section 35, albeit implicitly, and plays an important role in Canada endorsing undrip in 2012.

The application of the duty to consult in Canadian courts was emphatically illustrated in the trilogy of cases: Haida Nation v. British Columbia (Minister of Forests),22 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),23 and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage).24 It is outside the ambit of this chapter to discuss these and further cases decided by the courts in any detail and such cases will consequently only be discussed briefly.

In the Haida Nation case, the Supreme Court explained how the duty to consult applies to aboriginal people in Canada. In this case, the government transferred a tree farm license to a large forestry corporation named Weyerhauser without consulting the Haida Nation. The Court held that the Haida Nation should have been consulted prior to the transfer of the license because the government was bound to act honorably in its relations with aboriginal people. This duty to consult, Chief Justice McLachlin held, arises when the government has knowledge of the potential existence of the aboriginal title to land and when the contemplated conduct might adversely affect such aboriginal title.

In the companion Taku River case, the Supreme Court held that the government had met the necessary consultation requirements after the Tlingit’s concerns about the possible impacts of a 160 kilometer road through their traditional territory. The Court found that issues relating to wildlife migration and the environmental impact had been adequately consulted on. In the Mikisew Creek case, the aboriginal Mikisew Creek Nation protested that the location of a road near their reserve would adversely affect their traditional lifestyle because it intersected with a number of their trap lines and hunting grounds. The Supreme Court held in the circumstances there was a duty to consult and that there had not been adequate consultation. Consequently, the government was ordered to reassess its initial decision.

These three cases established a new legal doctrine relating to government consultation with aboriginal nations in matters that seriously impact their economic interests, natural resource developments and traditional way of life.

The impact of these three cases was manifested in 2010 in Rio Tinto Alcan v. Carrier Sekani Tribal Council.25 The case concerned applications for renewals of energy production licenses at hydro-electric facilities powered by dams that had been built decades ago with no consultation and with clear impacts on the aboriginal nation in the area. Questions were raised as to the duty of utilities commissions and various administrative boards to consult with the relevant aboriginal peoples in such situations. The Supreme Court held that the government is constantly obliged to see that consultation occurs. It also importantly held that the duty to consult was not retrospective but a forward-looking duty that attaches to potential future impacts of decisions made in the present. Dene Tha’ First Nation v. Canada (Minister of the Environment)26 resonates with the principles established in the Rio Tinto case, emphasizing the forward-looking nature of the duty to consult. Justice Phelan used the example of government planning a gas pipeline. If a plan was envisaged and a roadmap was in the contemplation of government officials, the court held that there should at that early stage be consultation with the affected indigenous nations.

What constitutes meaningful consultation was addressed in White River First Nation v. Yukon (Minister of Energy, Mines and Resources).27 The Supreme Court saw it to be a form of consultation which generates an appropriate level of respect for aboriginal rights and comprises a genuine process for feedback that is appropriate in the circumstances and allows the government to take proper account of such feedback. It was also determined that meaningful consultation should adhere to principles of procedural fairness, including adequate notice and the opportunity for all parties to be heard (audi alteram partem). Meaningful consultation was also addressed in various further cases. In Ka’a’gee Tu First Nation v. Canada (Indian Affairs and Northern Development)28 it was held that consultation must be ongoing, including during the final stages of the decision-making. Brokenhead Objiway Nation v. Canada (Attorney General)29 concerned a set of oil pipelines, one of which was the Keystone Pipeline. Justice Barnes emphasized the principle that the duty to consult must be proportionate to the anticipated impact of a development or project on the asserted interests.

The views of the Canadian courts regarding the respective rights and duties of the federal and provincial governments, the aboriginal communities and industry stakeholders regarding consultation is encapsulated in Saugeen First Nation v. Ontario (Minister of Natural Resources and Forestry).30 The case concerned the government’s duty to consult with the Saugeen Objiway Nation (son) regarding an application for a license for a quarry on son traditional lands. The court decided that the duty to consult required the government to: (i) give notice to son of the application for the quarry project; (ii) provide son with details of the project; (iii) disclose details of government funding to obtain expert assistance for son; (iv) communicate with son about son’s concerns after having received expert advice; and (v) follow a reasonable process to complete adequate consultations and, where appropriate, accommodate son’s concerns.

Concerns have arisen in Canada as to whether the duty to consult implies a veto by aboriginal communities in authorizing development projects after consultation. In the Haida Nation case, it was held that the duty to consult does not include an aboriginal power to veto any government decision. The 2009 Annual Report of the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People31 suggests that undrip does not create a veto power but rather creates an obligation to consult in good faith. However, the 2013 Annual Report of the Special Rapporteur on the Rights of Indigenous Peoples,32 though not specifically adopting a veto power, stated that aboriginal peoples have the right to withhold consent in resource developments in their traditional territories.

An analysis of the state practice outlined above concerning the duty to consult indigenous peoples in Canada found that while the concept of fpic is not explicitly mentioned, it is implicitly recognized in the ongoing jurisprudential conversation. This is evident especially in activities with a particularly severe impact on the indigenous peoples’ lives.

5 The African Commission on Human and People’s Rights

The African Charter on Human and Peoples’ Rights33 (Charter) was designed to reflect the particular circumstances of Africa and is the founding document of the Organisation of African Unity (oau). The Charter has special provisions drawn from indigenous customary laws. Besides referring to civil, political, social, economic and cultural rights, the Charter provides for so-called third generation rights. These rights relate to development, self-determination and the environment. The latter group of rights vest in the main in groups rather than in individuals.

Implementation of the Charter is supervised by the African Commission on Human and Peoples’ Rights (achpr). The achpr is the key mechanism for ensuring observance of the Charter. States party to the Charter are obliged to submit reports to the achpr. Any state party may refer any alleged violation to the achpr. Significantly, the achpr may entertain petitions from individuals if the petitions refer to a special case that reveals a series of serious massive violations.

Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria (Serac and cesr v. Nigeria)34 (the Ogoni case) is a renowned decision of the achpr regarding state obligations under peoples’ socio-economic and cultural rights and the Charter. It was alleged that oil resource exploitation in the Niger Delta had violated the rights of the Ogoni people by degradation of the environment and resulted in health problems. The achpr recognized the Ogonis as a distinct people entitled to the peoples’ rights provisions of the Charter. Regarding Article 21, which guarantees the right to freely dispose of wealth and natural resources, the achpr found that the Nigerian government, by giving the green light to oil companies, had devastated the wellbeing of the Ogonis. Second, the achpr found that the government had not involved the Ogoni communities in decisions that affected their development in Ogoniland.

This interpretation of the Charter is not only in line with the related provisions Articles 8(2)(b), 25–29 and 32 of undrip, but also with those on the right to free, prior and informed consent in important matters affecting their lives, as outlined in Articles 10, 11, 19, 28, 29 and 32. It is also worth noting that the decision erases any doubt as to whether peoples’ rights provisions in the Charter are applicable to indigenous groups as the Ogonis were

In Centre for Minority Rights Development (Kenya) and Minority Rights Group International obo Endorois Welfare Council of Kenya v. Kenya (Endorois case)35 the cause of action was Kenya’s eviction of an indigenous community, the Endorois, from their ancestral land for the establishment of a game reserve. The Endorois were relegated to semi-arid land, which proved to be unsuitable for pastoralism. As a result of the loss of their ancestral land, their access to clean drinking water was severely undermined. Moreover, the strict conditions attached to the access to their ancestral land resulted in the curtailment of their traditional means of subsistence by grazing cattle. The Endorois were not only unable to access the healthy pastures around Lake Bogoria, their traditional home, but also the salt licks their cattle required. A complaint was lodged with the achpr against the Kenyan state by the Endorois.

The achpr found that the Endorois were a distinctive tribal community and that the alleged violations of the African Charter espoused by the Endorois went to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands.

The main thrust of the complaints of the Endorois can be encapsulated in Articles 21 and 22 of the Charter. Article 21(1) provides that all peoples have the right “freely to dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.” Article 22 reads:
  1. 1.All people shall have the right to their economic, social, and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of the mankind.
  2. 2.States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

Regarding Article 21, the achpr held that Kenya had a duty to “evaluate whether a restriction of these property rights is necessary to preserve the survival of the Endorois community.” Further, with reference to the African Commission’s Ogoni case, the achpr held that a right to natural resources contained within their traditional lands vested in the indigenous people. The achpr was of the opinion that the Ogoni case made it clear that a “people” inhabiting a specific region within a state can claim the protection of Article 21.

The achpr subsequently concluded that in relation to Article 21, Kenya had not consulted with the Endorois community, who possess the right to freely dispose of their wealth and natural resources through consultation with Kenya. Consequently, Kenya was found to have violated Article 21.36

As evident from the above, Article 22 of the African Charter proclaims the right to development of peoples. This right to development is comprehensive and includes peoples’ rights to their economic, social and cultural development. Kenya contended that this meant that the task of communities within a participatory democracy is to contribute to the wellbeing of society at large and not only to care selfishly for one’s own community at the risk of others. This contention was rejected.

The achpr endorsed the sentiment expressed in the Report for the UN Working Group on Indigenous Populations37 that “indigenous peoples are not coerced, pressurized or intimidated in their choices of development”. The achpr referred to Article 2(3) of undrip, which notes that the right to development includes active, free and meaningful participation in development. The achpr held that Kenya’s consultation had not been sufficient and did not obtain the fpic of all the Endorois before designating their land as a game reserve and evicting them.

In a nutshell, the achpr held that any developments or investment projects that would have a major impact within the Endorois territory generated a duty not only to consult with the community, but also to obtain their fpic according to their customs and traditions.38

6 The Inter-American System of Human Rights

The Inter-American system upholds and enforces human rights through the Inter-American Commission on Human Rights (Commission) and the Inter-American Court of Human Rights (IACrtHR). The human rights obligations of member states of the Organization of American States (oas) are set out in the Charter of the oas,39 the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights (Convention). The Convention contains a comprehensive guarantee of civil, political, economic, social and cultural rights and provides for a system of individual applications leading to decisions by the Commission. Although Article 26 of the Convention obliges states to progressively realize second-generation rights, Article 21 specifically guarantees the right to property.

Only states and the Commission may refer cases to the IACrtHR – provided that the states in question have accepted the jurisdiction of the court. The court may give advisory opinions on the interpretation of the Convention. The IACrtHR has no jurisdiction to receive individual complaints. Only the Commission has compulsory jurisdiction over individual petitions, which it may then refer to the IACrtHR.

The IACrtHR in the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua40 and the case of the Moiwane Village v. Suriname41 accepted the collective rights of indigenous peoples or tribal groups to the communal use of their property. In the Awas Tingni case, the court held that possession of land should suffice for indigenous communities lacking real title to obtain official recognition of that property.

This approach was borne out by the IACrtHR in the case of the Sawhoyamaxa v. Paraguay,42 where it was ruled that indigenous peoples’ collective notion of

ownership of land does not necessarily conform to the classic concept of property, but deserves equal protection under Article 21 of the American Convention. Disregard for specific versions of use and enjoyment of property, springing from culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of persons.

The case of Mary and Carrie Dann v. USA43 concerned meetings conducted with an indigenous community 14 years after their property rights had been extinguished. One of the issues was whether the community really understood what the nature and consequences of the meetings were. The IACrtHR was of the opinion that the meetings held 14 years after the fact could not constitute effective participation. The IACrtHR emphasized that to have a process that is fully informed, a minimum requirement was obtaining the consent of all of the members of the indigenous community and providing them with an effective opportunity to participate individually or collectively.

Yakye Axa Indigenous Community v. Paraguay44 concerned the restitution of traditional lands and communal resources to indigenous peoples. The return of alternative lands, the IACrtHR held, must be done by agreement with members of the indigenous peoples according to their own consultation and decision procedures.

In the case of the Saramaka People v. Suriname,45 the IACrtHR had to consider the Saramaka, whose lands were given to mining and logging companies with no regard to their fpic. The court ruled that large-scale development projects that might affect indigenous and tribal peoples’ lands and natural resources requires their free, prior and informed consent in accordance with their customs and traditions. The court further ruled that the Saramakas receive a reasonable benefit from the development and that an environmental and social impact be undertaken under supervision of the state. Any consultation with the Saramakas, the court added, must be effective consultation and held in good faith.

An important case related to a South American country, Peru, was a decision of the UN Human Rights Committee. This Committee was established under Article 28 of the iccpr to consider complaints of human rights violations under the iccpr by states parties of the iccpr. In Poma Poma v. Peru,46 the complainant owned an alpaca farm in the Tacna region of Peru where she and her children raised alpacas, llamas and other animals as their only means of subsistence. This farming activity was practiced according to the traditional customs of the family, who were descendants of the indigenous Aymara people, as part of their way of life for thousands of years. Between the 1950s and 1980s water diversion projects authorized by Peru reduced the water supply to the pastures and areas from where the water for human and animal consumption was drawn. This caused the drying out of the wetlands on which the complainant depended for grazing and underground springs. The situation further deteriorated in the 1990s when Peru drilled wells in the area, accelerating pasture drainage and degradation, resulting in the deaths of thousands of animals. This potentially deprived the indigenous community of their only means of survival.

The complainant alleged several violations of the iccpr the most important being Article 27, which emphasizes the right to enjoy a particular culture which may consist of a way of life that is closely connected with a territory and the use of its resources. This provision is particularly relevant in the context of members of an indigenous community constituting a minority. Where this is the case, the Human Rights Committee held, the enjoyment of the rights associated with the community’s traditional activities may require measures be taken by the state to ensure the effective participation of members of the community in decisions affecting them. It was not disputed that the complainant was a member of an indigenous people and that the raising of llamas constituted an essential element of her community’s culture. It was uncontested that the degradation of the pastures was the direct result of the water diversion schemes and led to the death of thousands of head of livestock and the financial ruin of the community, including that of the complainant.

The UN Human Rights Committee took into account the failure of Peru to properly consult with the complainant and affected indigenous community, and to require impact studies to be undertaken by an independent body to determine the impact of the wells on the economic activities of the complainant and community. The nature and scope of the required consultation in the Committee’s comments in paragraph 7.6:

In the Committee’s view, the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority of indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers the participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community. In addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members.

A landmark decision of the IACrtHR is the Case of the Kichwa Indigenous People of Sarayaku v. Ecuador47 (Sarayaku people case). This case was initiated inter alia by the Association of the Kichwa People of Sarayaku, which sued the state of Ecuador by submitting that a number of rights of the Sarayaku people as set out in the Convention had been violated, including the right to private property (Article 21); the right to life and personal integrity (Articles 4 and 5), and freedom of movement and residence (Article 22).

The Sarayaku people lived in different sectors of Pastaza province along the banks of the Bobonaza River in the Amazonian region of Ecuador, in an undivided parcel of land that was granted to them in 1992 by Ecuador. The Sarayaku comprised approximately 1,200 people divided in different groups. They carried out traditional activities such as collective family-based farming, hunting, fishing and gathering. In 2004, the Sarayaku people registered their parcel of land before the competent governmental authority, setting out the dimensions of their territory.

In 1996, Ecuador granted a concession to Petro Ecuador, the national oil company, and other consociated oil companies, to explore and exploit hydrocarbons in Block 23 of the Amazonian basin. Petro Ecuador never complied with its obligations to do an environmental impact assessment or to preserve the ecological balance in the surrounding areas of Block 23. Meetings held between the government and the Sarayaku people never reached any substantial common agreement. Petro Ecuador placed 1,433 kilograms of explosives on the surface and at deeper levels to continue their seismic operations, which damaged the Sarayaku peoples’ sacred sites and environment. Despite the police having been ordered to remove the explosives from Sarayaku territory by the end of 2009, only 14 kilograms had been removed.

The IACrtHR found that Ecuador had violated certain rights of the Sarayaku people such as the right to consultation, the right to property, and the right to life and personal integrity.48 For present purposes, the court’s views on the right to consultation of the Sarayaku people will be discussed in more detail. The IACrtHR held that the spiritual relationship between indigenous people and their land must be respected in a democratic society and can be safeguarded by their right to consultation. The court linked participation with consultation regarding measures likely to affect the rights of indigenous peoples. This relationship between consultation and participation the court saw as being recognized by ilo Convention No 169 and undrip. The court significantly saw the obligation to consult as being not only a treaty provision “but also a general principal of international law”.

The Court also in paragraph 167 gave more content to the right to consultation and participation of indigenous peoples:

Given that the State must guarantee these rights to consultation and participation at all stages of the planning and implementation of a project that may affect the territory on which an indigenous or tribal community is settled, or other rights essential to their survival as a people, these dialogue and consensus-building processes must be conducted from the first stages of the planning or preparation of the proposed measure, so that the indigenous peoples can truly participate in and influence the decision-making process, in accordance with the relevant international standards. In this regard, the State must ensure that the rights of indigenous peoples are not ignored in any other activity or agreement reached with private individuals, or in the context of decisions of the public authorities that would affect their rights and interests.

After recalling its previous cases Awas Tingni (2001) and Saramaka v. Suriname (2001), and taking into account the iccpr and the icescr, the IACrtHR concluded that Ecuador, by failing the consult the Sarayaku people on the execution of a project that would have a direct impact on their territory, failed to comply with its obligations under the principles of international law, and its own domestic law. It further failed to adopt all necessary measures to guarantee the participation of the Sarayaku people, in accordance with their values, practices, customs and forms of organization, in the decisions made regarding matters that could have an impact on their territory, their life and their cultural and social identity. The court laid emphasis on common Article 1 of the iccpr and the icescr, which declares that by virtue of the right to self-determination, all peoples freely determine their political status and freely pursue their economic development. Relative to Article 21 of the Convention – the right to property – it can be submitted that this clearly implies the right to free, prior and informed consent regarding decisions and actions taken which have an impact on the territory of indigenous peoples. The court, in coming to its conclusion, referred to the participation and consultation rights of indigenous people recognized in ilo Convention 169. In paragraph 161, it reiterated that “human rights treaties are living instruments, the interpretation of which must evolve over time.”

Shortly after the Sarayaku people case, the Commission referred the case of the Kalina and Lokono Peoples v. Suriname49 (Kalina and Lokono case) to the IACrtHR. The case stemmed from the unresolved land claims of the Kalina and Lokono peoples due to the actions and inactions of Suriname. From 1966 to 1998, the Wia Wia, Galibi and Wave Creek nature reserves were created by order of the president of Suriname. These nature reserves were partly located in the lands of the Kalina and Lokono indigenous peoples and were created without their consultation. Following on the creation of these nature reserves, the fishing and hunting activities essential for the spiritual and material development of the Kalina and Lokono were affected and they were forced to flee their traditional lands due to the internal conflict between some tribes and the military regime. Beside creating tourism projects on these reserves, Suriname in 1958 granted bauxite mining concessions to a company called Suralco until 2033. Some of these activities were planned to take place in parts of the Wave Creek reserve. The mining activities resulted in the prohibition of the Kalina and Lokono peoples to enter their traditional territory in the Wave Creek reserve and had a significant environmental impact, which further led to the decline of fishing and hunting. After failing to get recognition of their traditional ownership over the nature reserves, the Kalina and Lokono indigenous peoples submitted their claims to the Commission, which in turn referred the claims to the IACrtHR.

For our purposes we shall focus broadly on Article 21 of the Convention, which concerns the right to property, as well as the related participatory rights outlined in Article 23. The court concluded that Suriname violated Article 21 of the Convention by denying the Kalina and Lokono peoples access to some portions of their traditional land and preventing them from enjoying the benefits of the Galibi and Wave Creek reserves. Further, the court found that the mining operations restricted the indigenous people’s rights to their collective property. Regarding Article 23, the court gave a restrictive interpretation to participation in that it only referred to “free, prior and informed consultation” without addressing the term ‘consent’. Despite this restrictive interpretation of the participatory rights of the Kalina and Lokono peoples, the IACrtHR did conclude that Suriname did not meet the benchmark of effective participation because it failed to consult the Kalina and Lokono peoples prior to the commencement of the mining operations. Suriname was consequently ordered to pay reparations to reverse the negative effects of the mining operations.

In the Kalina and Lokono case, the IACrtHR in defining effective participation in paragraph 305 referred to Articles 18 and 19 of undrip. The latter Article refers to “free and informed consent.”

As was submitted (supra) at the end of the discussion of the Sarayaku people case, it is similarly submitted here that the court’s conclusion in the Kalina and Lokono case implies consent as being an inherent part of fpic.

7 South Africa

In Baleni and Others v. Minister of Mineral Resources and Others50 (Baleni case), the Gauteng Division of the High Court of South Africa had to interpret the provisions of the Informal Protection of Land Rights Act 31 of 1996 (ipilra). The applicants in the case were known as the Imizi. They had lived in an area known as uMgungundlovu, which is in the greater Xolobeni area, according to their customs and traditions for centuries. The respondents were Transworld Energy and Mineral Resources (sa) Pty (Ltd) (temr) and various government departments.

temr applied for mining rights in the Xolobeni area. The Imizi lived in close proximity to the proposed mining area and were unequivocally opposed to the proposed mining activities. Their opposition was due to the fact that they had family graves in the proposed mining area and considered them essential sites for their community rituals. According to their culture, the relationship between the living and the dead is intertwined. It was not disputed by temr that the Imizi had informal rights to the land as defined by the ipilra and it was not disputed that they occupied the land according to their own laws and customs.

According to section 2(1) of the ipilra, an informal holder of rights to land is one who uses or occupies land in terms of any tribal, customary or indigenous law or practice of a tribe. Section 2(1) further states that no person may be deprived of any informal right to land without his or her consent. Section 2(2) states that where land is held on a communal basis, a person may only be deprived of such land in accordance with the custom and usage of the community. Section 2(4) declares that ‘custom and usage of a community’ shall be deemed to include the principle that a decision to dispose of an informal right to land may only be taken after a majority holders have attended a meeting and they all had a reasonable opportunity to participate. The Imizi submitted that they had never consented to the proposed mining operations. temr submitted that according to the Mineral Resources Development Act 28 of 2002 (mprda), their only obligation was to consult with the Imizi before mining operations commenced, which they had done.

The court saw the Imizi as part of the uMgungundlovu community and being holders of informal rights to land as defined in the ipilra. Consequently, their consent was necessary, as set out in section 2(1) of the ipilra, before being deprived of their informal rights to land. The court found that the consent requirement of the ipilra trumps the sole consultation requirement as required by the mprda.

The court referred to section 233 of the South African Constitution, which states that when interpreting legislation a court must prefer any reasonable interpretation that is consistent with international law. In applying the section 233 to the terms of the ipilra, the court found that multiple instruments in international law required that communities such as the Imizi have the right to grant or refuse their free, prior and informed consent to any mining development that will significantly affect them.51 These multiple instruments in international law the court held were:
  1. 1.General Recommendation No. xxiii on Indigenous Peoples, issued in terms of cerd.52
  2. 2.General Comment 21 of 2009 of escor,53 which states that states must take measures to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands and resources. Where such lands or resources have been used or inhabited without their free and informed consent, take steps to return such lands.
  3. 3.The Poma Poma v. Peru decision.54
  4. 4.The Endorois case.55

The court held that although the African Charter does not expressly provide for the concept of fpic, the Endorois case emphasized that no decisions may be made about indigenous peoples’ land without their fpic. The court56 concurred with this finding of the achpr. The court accordingly held that customary communities not protected by law have the right to decide what happens with their land. As such they may not be deprived of their land without their consent. Where the land is held on a communal basis – as in this matter – the community must be placed in a position to consider the deprivation of their land and take a communal decision in terms of their custom whether they consent to a proposal to dispose of their rights to their land.

In Maledu and Others v. Itereleng Mineral Resources (Pty) Ltd and Another,57 the South African Constitutional Court (cc) on a similar set of facts came to the same conclusion. In this case the cc concurred with paragraph 291 of the Endorois case that any development that would have a major impact on the territory of indigenous people generates a duty not only to consult the community but also to obtain their fpic according to their customs and traditions.

8 Botswana

Roy Sesana Keiwa Setlhobogwa and Others v. The Attorney General58 (Sesana case) concerned Roy Sesana, who was a member of the Kgei band of the San or Basarwa people whose ancestors were indigenous to the Central Kgalagadi region. Roy Sesana was a human rights activist and a member of the First People of the Kalahari (fpk). He acquired fame in the mid-1990s due to events surrounding the removal of his people from the Central Kgalagadi (Kahahari) Game Reserve (ckgr).

The applicants were part of a larger community of Botswana’s San/Basarwa people representing approximately 3% of the national population. The High Court case was highly publicized and is still the longest and most expensive court case in Botswana’s history.

The Sesana case dealt with the removal or relocation of members of the Basarwa/San from various settlements within the ckgr. These settlements had been created by the departing British colonial administration in 1961. The stated reason for the creation of the ckgr was to protect wildlife resources and the need to safeguard the traditional lifestyle of the Basarwas/San. A 1963 regulation on the control of entry into the ckgr declared that no person other than a member of Basarwa/San people indigenous to the ckgr shall enter the reserve without first having obtained a permit in writing from the district commissioner in Ghanzi. This regulation, it was submitted, implied a recognition of the historical right of the Basarwa/San as an indigenous people to access ancestral lands that they had occupied for more than 2,000 years.

The heart of the legal battle revolved around the relocation of about six Basarwa/San settlements or communities who, it was submitted, had lived in the ckgr for ages in harmony with the wildlife and nature. It was submitted that the relocation would disrupt their traditional lifestyle. Sesana brought an action before the court, requesting it to declare inter alia that the removal of the Basarwa/San from the ckgr was an unlawful dispossession of land and that the applicants should be reinstated in their possession. The High Court of Botswana court decided that the applicants were indeed deprived of their possession of land forcibly or wrongly and without their consent. Within the ranks of advocates of human rights, the ruling of the court was hailed as a significant victory for indigenous rights, not only in Botswana but also in Africa more generally.

9 Customary International Law

Customary international law plays a significant role in the international legal order.59 While states give their express consent to be bound by a rule when they enter into a treaty, the consent of states to a customary rule must be inferred from their conduct. The two main requirements for a rule of customary international law to exist is the settled practice of states (usus) and the acceptance of an obligation to be bound by the rule (opinio iuris sive necessitatis).

Usus in the context of customary international law means the practice of states. This practice must be general and widespread. Such practice can be found in a variety of materials, including treaties, decisions of national courts, national legislation, government policy statements, opinions of government law advisers, reports of the International Law Commission (ilc), resolutions of international organizations, and comments of states on such resolutions and reports. According to Justice Conradie in the South African case S v. Petane,60 one must consider the action and practice of states and not their promises or rhetoric, as customary international law is founded on practice, and not on preaching.

According to the International Court of Justice (icj), a practice must constitute a constant and uniform usage before it will qualify as a custom. This was held in the Asylum Case (Columbia v. Peru).61 The icj relaxed this approach in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA),62 where it held that a custom did not require absolute rigorous conformity with a rule. It is sufficient that the conduct of states should indicate a “general” or “widespread acceptance” of the rule. Universal acceptance63 is not a requirement.

A further requirement for customary international law is that states must feel that they are under an obligation (opinio iuris) to be bound by the rule. As stated by Article 38(1)(b) of the Statute of the icj, states must be of the opinion that the custom is evidence of a general practice accepted as law.64 Evidence of opinio iuris can be found in the same materials that are used for state practice. The difference being that for opinio iuris the search is for evidence that states feel bound or entitle to act in a particular way, not just for policy or political reasons but by virtue of the existence of a rule of customary international law.

Resolutions of international organizations, in particular political organs of the UN, can play an important part in the formation of customary international law – either as proof of practice (usus) or as opinio iuris. An accumulation of resolutions may be evidence of a collective practice of states. Where a resolution specifies that a practice is a rule of customary international law, such a resolution may also serve as opinio iuris. Measured against the requirements necessary for customary international law, fpic is moving inexorably towards meeting such demands. There is a vast amount of literature on the subject animated by what academics are saying about undrip. As stated by Dayo Ayoade,65 fpic is recognized as an emergent right under international law and is here to stay. This is borne out by the many references to case law in various countries referred to above and is not based on a utopian reading of the significance of these cases.

10 fpic in Essence

What in a nutshell do above developments and decided cases say about the nature and extent of fpic?

‘Free’ implies lack of coercion, intimidation or manipulation. Indigenous people are thus free to make their decisions in the ways and manners they wish, and according to their own norms and customary laws.

‘Prior’ implies that an indigenous community’s consent must be obtained before a decision is reached on a project which affects the community’s interests. This avoids a situation where indigenous communities only participate as rubber stamps.

‘Informed’ means that the indigenous people are provided with the full and comprehensive information that encapsulates the nature, size and scope of any proposed project, its purpose and duration; the likely impacts and the risks and benefits.

‘Consent’ is the collective decision of the affected communities. It is a combination of the elements of consultation and participation. It is important that the consent carries the interpretation of the term the indigenous people normally ascribe to it.

11 Indonesia

How has fpic impacted on decisions of the Constitutional Court of the Republic of Indonesia, The two decisions to be discussed will, like those previously discussed, be approached with a very broad brush, thereby avoiding the legal intricacies involved. The focus will be on the position of indigenous people in general and in what way, if any, fpic was taken into account.

Decision Number 35/puu-x/2012 concerned an application by way of petitions for a judicial review of mainly Law Number 41 of 1999 on Forestry (Forestry Law). It was contended that the Forestry Law for various reasons was in conflict with the 1945 Constitution of the Republic of Indonesia (Constitution). The focus of the discussion will mainly be on the comments of the Constitutional Court relating to the position of indigenous peoples in general in Indonesia.

The Court recognized the legal standing of all the Petitioners according to Article 51(1) of the Constitution. By virtue of Article 5(1)(c), Petitioner i was in alliance with indigenous communities who together fought for the rights of indigenous communities. By virtue of Article 51(1)(b), Petitioners ii and iii were indigenous community units: Petitioner ii represented the Kenegerian Kuntu indigenous community and Petitioner iii represented the Kasepuhan Cisitu indigenous community.

Since Decision Number 006/puu-iii/2005 and Decision Number 11/puu-v/2007, the Petitioners have also complied with the five conditions for standing mandated by these two Decisions:
  1. 1.The existence of constitutional rights;
  2. 2.The constitutional rights are deemed to be impaired by the enactment of the Law for which judicial review is requested;
  3. 3.The loss of constitutional rights must be specific and actual or potential in nature, which may reasonably occur;
  4. 4.There is a causal relationship between the loss of the relevant constitutional rights and the enactment of the Law for which judicial review is being petitioned for;
  5. 5.There is a possibility that if the petition is granted, the loss of constitutional rights will no longer occur.

A brief precursor relating to the legal standing of indigenous peoples in Indonesia may be necessary before the gist is discussed. According to Article 18B paragraph 2 of the Constitution, “The state recognizes and respects entities of the adat (indigenous) law communities along with their traditional rights as long as these remain in existence and are in accordance with the development of community and the principles of the Unitary State of the Republic of Indonesia, are regulated by law.”

According to Article 281 paragraph 3 of the Constitution “Cultural identities and rights of indigenous people are respected in accordance with the development of times/age and civilizations.” In addition to these statutory provisions, evidence has been presented showing that indigenous communities, as population groups, have special characteristics as groups that have continuously inhabited areas for generations, maintaining cultural systems that bind various social groupings. (This evidence, set out in paragraph 3.9, was not rejected by the Court). This, in a nutshell, sets out how indigenous communities are constitutionally viewed in Indonesia.

Significantly, in paragraph 3.9, the Court recognized the petitioners as being indigenous and autonomous community groups in accordance with the Articles 3 and 4 of undrip. This affirmed their right to self-determination and the freedom to pursue economic development, as well as their autonomy in internal affairs. Additionally, the Court in paragraph 3.9 made reference to ilo Convention 169.

The Court referred to the evidence presented, which demonstrated that indigenous communities have been among the victims of mining, forestry and plantation concessions. The Court also referred to international conventions aimed at protecting indigenous communities, including ilo Convention No. 1969 on Indigenous and Tribal Peoples in Independent Countries, which effectively protected and recognized indigenous communities.66 Furthermore, the Court commented that the land conflicts with indigenous peoples in Indonesia went as far back as the Dutch East Indies colonial era, which had deprived indigenous peoples from enjoying their natural resources.

The Court emphasized that achieving social justice for all Indonesian people, as demanded by the Constitution, includes attaining the general welfare of all Indonesian people, comprising various groups and ethnicities with different religions, different customs and habits, and their respective traditional rights. Importantly, the Court, in paragraph 3.12.1, held that indigenous communities are constitutionally recognized and respected as rights holders, who also bear certain obligations. The Court saw indigenous communities as being legal subjects.

Returning to the Forestry Law, the Court held that three legal entities regulated forests. First, the state. Second, the indigenous communities. Third, the rights holders of land containing forests. The Court agreed with the petitioners that indigenous people had no clarity regarding their specific rights relating to forests, distinct from mere land rights where forests exist. As a result, indigenous communities faced the risk of losing their rights to the forests that produce the natural resources for their livelihoods and sustenance. The Court held that this often occurred in an “arbitrary manner” that caused injustice and legal uncertainty for indigenous communities.

It is submitted that the fact that the Court saw arbitrariness as possibly leading to injustice and legal uncertainty, is a strong indication that the Court would have preferred the inputs or participation of the indigenous communities when it comes to disputes over forest lands. One of the issues raised by the Petitioners was that as mandated by the law, the state could grant rights to indigenous lands without first obtaining the approval of the indigenous communities who already lived on that land. Further, that the state was under no legal obligation to pay compensation. The Court here reacted by referring to the Earth Summit in Rio de Janeiro and Principle 22 of the Rio Declaration on the Environment and Development,67 which stated that indigenous communities had an important role in environmental management because of their traditional knowledge and practices and should thus actively participate in the achievement of sustainable development. Such participation, as has been indicated above, is an element of fpic.

Based on these considerations the Court held that regarding state forests, the state has full authority to make regulations. Regarding indigenous forests, however, the management is based in the residents who live there and who may control and cultivate the land according to their personal and family needs. Placing indigenous forests into parts of state forests, the Court held, was disregarding the rights of indigenous communities. ‘Disregard’ according to the Oxford Dictionary means “pay no attention to, to ignore.” This rejection by the Court of any decisions which ‘disregard’ the rights of indigenous people is seemingly based on Article 18B paragraph 2 and Article 281 paragraph 3 of the Constitution, which recognize and protect indigenous forests. These articles were seen by the Court in paragraph 3.13.1 to be “living indigenous law” and clearly implied fpic.

The Court held that in determining the boundary of state forest areas and indigenous forest areas, the decision should not unilaterally be taken by the state but based on Decision Number 34/puu-ix/2011 it must be conducted with the participation of the stakeholders, which clearly include the people who live in the indigenous forests. It is submitted that here, the Court applied the principles of fpic. In paragraph 3.13.2, the Court in so many words applied fpic by stating that the status of indigenous forests or land may not be utilized for other purposes consequent on evictions without the permission of the indigenous people.

Decision Number 95/puu-xii/2014 was also due to petitions for a review of Law Number 18 of 2013 on the Prevention and Eradication of Forest Destruction and Law Number 41 of 1999 (Forestry Law). It was contended that both these laws were in conflict with the Indonesian Constitution. fpic did not in so may words feature as prominently in Decision 35/puu-x/2012 discussed above, but the case’s importance lies in the Court’s overall awareness of the importance and recognition of indigenous peoples. Similarly by virtue of the provisions set out in the case just discussed, including Article 51(1) of the Constitution and Decision Number 006/puu-iii 2005 and Decision Number 11/puu-v/2007, the Court accepted the standing of the petitioners.

Petitioner i was a citizen and member of the Gugak Malalo indigenous community. Petitioner ii was a citizen and chief of Pekasa Customary Village, who lived with the indigenous people of Pekasa in a government-declared protected forest area. Petitioner iii was a citizen and a member of the Dukuk Pidik indigenous people, who were farmers claiming an area managed by state-owned forestry company Perhutani. Petitioner iv was a member of the Kaspepuhan indigenous community. Petitioners v to x were ngos focused on promoting human rights, forest conservation, agrarian justice and the protection of indigenous peoples.

The Petitioners submitted that both above laws were contrary to the Constitution and thus had no binding force in that they violated legal certainty, were discriminatory and restricted indigenous communities in fulfilling their daily needs. It was also submitted that the Government, due to its negligence, had failed clearly to designate the different categories of forests. It was contended that the criminal regulations regarding the forests were vague and did not comply with international standards. It was submitted that people who caused forest damage were not always held responsible and that there was no adequate environmental conservation and protection to cater for future generations. It was statistically proven that due to government negligence there had been massive forest degradation reaching 2 million hectares per year. This led to material losses, forest damage and the loss of a healthy and proper living environment, which impacted heavily on indigenous people living in the forests.

The Court was of the opinion that under the circumstances it had the right to intervene with the enforcement of environmental policies in accordance with the principles of sustainable and environmentally sound developments, including establishing and implementing criminal law provisions within the forestry sector. The Court held that the criminal provision, Article 50(3) of the Forestry law, that all people are prohibited from cutting down trees or harvesting or collecting forest products in the forests without having the right or permits from the authorized official, must not apply to people who for generations have lived in the forest, as long as the products were not intended for commercial purposes. The same applied, the Court held, to Article 50(3)(i) of the Forestry Law, which prohibited the grazing of livestock in forest areas without the competent authority. Here the Court held that this prohibition must not apply if the relevant livestock are for the daily needs of people who have lived in the forests for generations.

By implication, the Court held that these two prohibitions were arbitrary in nature by not taking the views of the indigenous people into consideration. The Court ordered that transitional provisions be made to avoid any legal vacuum, to guarantee legal certainty and provide legal protection to all affected parties. The affected parties in the case by implication were clearly the indigenous peoples of Indonesia. It is submitted that above two Constitutional Court cases must be read together and that the Court’s remarks in Decision Number 35/puu-x/2012, which clearly applied the principles of fpic relating to indigenous people, is also applicable to Decision Number 95/puu-xii/2014 as it relates to the interests of indigenous peoples of Indonesia. The two cases are companion cases and have contributed to the development of customary international law. fpic, as a product of emerging customary international law, has decidedly influenced the approach of the Constitutional Court of Indonesia to matters affecting the lives of indigenous peoples.

12 Conclusion

fpic in simple terms refers to the right of indigenous peoples to give or withhold their consent to any action expected to impact their lands, resources and rights. It is the product of various hard law and soft law international legal instruments such as ilo Convention 169 and undrip. As we have seen, case law emanating from numerous countries and international tribunals has accepted fpic as a necessary requirement in interactions between governments, investors and indigenous peoples. Relevant customary international law has developed in the direction that for all practical purposes, indigenous peoples are rightful ‘owners’ of their lands, territories and resources and this has created emergent standards critical to resource development projects. It is for states to ensure that fpic becomes a condition precedent for natural resource developments and have a fpic regime in place. As stated by Ayoade, the wheel has turned and there is no turning back.68 It is important to reiterate that ‘consent’ in fpic is a collective decision of the affected communities and is a combination of the elements of consultation and participation. ‘Consent’ must carry the interpretation of the term indigenous people normally ascribe to it. fpic must be seen as a procedural requirement and not as an effective veto power, as it is not intended to block lawful activities. Courts and policymakers dealing with fpic need to consider carefully all the complex dynamics associated with it and ensure that it continues developing in forms that will work well for all. fpic is a complex doctrine that includes a number of related aims and aspirations. It has room to evolve and its ongoing development will take time. This development may prove to be an exciting and enriching experience for all indigenous peoples.


undrip is annexed to ga Res. ungaor 61st Sess. No 49, vol iii, UN Doc a/61/49 (2008) 15. See in general George Barrie, “The United Nations Declaration on the Rights of Indigenous Peoples,” Tydskrif vir die Suid-Afrikaanse Reg 2 (2013): 292–305.


Margaret Beukes, “The Recognition of ‘Indigenous Peoples’ and Their Rights as ‘People’: An African First,” South African Yearbook of International Law 35 (2010): 216–238.


Preamble para. 22.


UN Doc e/cn 4/1989/22, para. 40(d), United Nations Commission on Human Rights, “Study of the Problem of Discrimination against Indigenous Populations” (Final Report Submitted by Mr. José R. Martínez Cobo, Special Rapporteur).


ilm 28, 1982 (1989).


UN gaor 41st Sess. Doc A/Res/41/128 (1986), “Declaration on the Right to Development,” adopted by the United Nations General Assembly on December 4, 1986.


Pashuram Tomay, “An Overview of the Principle of Free, Prior and Informed Consent to Development,” Australian Indigenous Law Reporter 9 (2005): 111–116; George Barrie, “International Law and Indigenous People: Self-Determination, Development, Consent and Co-Management,” Comparative and International Law Journal of Southern Africa” 51 (2018): 171–184.


ga Res 50/174, “United Nations Declaration on the Rights of Indigenous Peoples,” UN gaor, 59st Sess., Supp. No 49, Vol 1, UN Doc a/61/49 (2005) 344.


UN gaor, 52d Sess., Supp. no. 18, UN, Official Records: Supplement to the Official Records of the General Assembly.


993 unts 3 (1967).


999 unts 171 (1966).


UN escor 2002 Supp. No. 2, UN Doc. E/2002/22, ec.12/2001/17, para. 761.


UN escor 2005 Supp. No. 2, UN Doc. E/2005/22, ec.12/2004/9, para. 278.


ga Res. 217 A iii of 10 Dec 1948.


ga Res. 1962 xvii 1963.


ga Res. 1514 xiv 1960.


Filartiga v. Pena-Irala, 630 F 2d 876, 882 (1980).


Simon v. Canada, 2013 fc 1117, para. 121.


UN Doc e/cn 4 Sub 2/1983/21 Add 8. See in general Stephen Anaya, Indigenous Peoples and International Law (Oxford: Oxford University Press, 2004); Solomon Derso, Perspectives on the Rights of Minorities and Indigenous Peoples of Africa (Pretoria: Pretoria University Press, 2010); Alexandra Xanthaki, Indigenous Rights and United Nations Standards (Cambridge: Cambridge University Press, 2007) and Paul Mc Hugh, Aboriginal Title (Oxford: Oxford University Press, 2011).


George Barrie, “The Canadian Courts Approach to the ‘Duty to Consult’ Indigenous Peoples,” Comparative and International Law Journal of Southern Africa 53 (2020): 1–20. See in general Dwight Newman, Revisiting the Duty to Consult Aboriginal People (Saskatoon: Purich, 2014).


R v. Sparrow, 1 scr 1075 (1990).


Haida Nation v. British Columbia (Minister of Forests), scc 73 (2004).


Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), scc 74 (2003).


Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), scc 69 (2005).


Rio Tinto Alcan v. Carrier Sekani Tribal Council, scc 43 (2010).


Dene Tha’ First Nation v. Canada (Minister of the Environment), fc 1354 (2006).


White River First Nation v. Yukon, yksc 66 (2013).


Ka’a’gee Tu First Nation v. Canada (Indian Affairs and Northern Development) fc 764 (2007).


Brokenhead Objiway Nation v. Canada (Attorney General) fc 484 (2009).


Saugeen First Nation v. Ontario (Minister of Natural Resources and Forestry), 4 cnlr 213 (2017).


UN Doc a/hrc/12/34 (15 July 2009).


UN Doc a/hrc/24/41 (1 July 2013).


ilm 21, 58 (1982).


Communication No. 155/96 (2001); 10 ihrr 287 (2003). See Felix Nahinda, Indigenousness in Africa (The Hague: Springer, 2011): 196–198.


ilm 49, 859 (2010).


Endorois case, para. 268.


UN Doc e/cn 4/ Sub /2ac 4/2004/4 para. 14(a).


Endorois case, paras. 290–291.


119 unts 3.


10 1 hrr 758 (2003).


IACrtHR (Series C) No 124.


IACrtHR (Series C) No 146, para. 120.


10 ihrr 1143 (2003).


15 ihrr 978 (2008).


16 ihrr 1045 (2009).


UN Doc ccpr/c/95/d 1457/2006.


IACrtHR (Series C) No 245.


Alexandra Tomaselli and Frederica Cittadino, “Land Consultation and Participation Rights of Indigenous Peoples in the Jurisprudence of the Inter-American Court of Human Rights,” in Litigating the Rights of Minorities and Indigenous Peoples in Domestic and International Courts, ed. Bertus de Villiers (Leiden: Brill, 2021), 149–178.


IACrtHR 2015 (Series C) No 309.


2019 2 sa 453 (gp).


Baleni case, para. 78.


UN gaor 52nd Sess., Supp. 18.


unescor 2002 Supp. No 2.


undoc ccpr/c/95/d 1457 /2006.


ilm (49) 858 2010.


Baleni case, para. 82.


2019 2 sa 1 (cc).


bwhc 1 (2006). See N Olmsted, “Indigenous Rights in Botswana: Development, Democracy and Dispossession,” Washington University Global Studies Review 3 (2004): 799–866.


Johan Dugard’s, International Law (Cape Town: Juta, 2018), 30–41; TW Bennett and J Strug, Introduction to International Law (Cape Town: Juta, 2022), 14–26.


S v. Petane, 3 sa 51 (C), 61 (1988).


Columbia v. Peru, icj Rep 266, 277 (1950).


Nicaragua v. USA, icj Rep 14, 98 (1986).


Judge Tanaka in South West Africa Cases (Ethiopia v. South Africa: Liberia v. South Africa) Second Phase 1966 icj Rep 169: 291.


North Sea Continental Shelf Cases (Germany/Denmark: Germany/Netherlands) 1969 icj Rep 176.


Dayo Ayoade, “Towards Free, Prior, Informed Consent in Natural Resource Development Projects,” South African Yearbook of International Law 44 (2019): 2–15; Andrea Carmen, “The Right to Free, Prior and Informed Consent,” in Realizing the UN Declaration on the Rights of Indigenous People, ed. Jackie Hartley (Saskatoon: Purich, 2010), 120–134.


ilm 28, 182 (1989).


See Patricia Birne and Alan Boyle, International Law and the Environment (Oxford: Oxford University Press, 2002), 79–177.


Dayo Ayoade, “Towards ‘Free, Prior, Informed Consent’ in Natural Resource Development Projects,” South African Yearbook of International Law 44, no. 1 (2019): 12.


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Courts and Diversity

Twenty Years of the Constitutional Court of Indonesia

Series:  Brill's Asian Law Series, Volume: 12