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Hastings Law Journal

Authors

Kylah Staley

Abstract

Resource extraction and exploitation threaten the survival of Indigenous and tribal peoples, who are amongst the most marginalized communities in the world. This is both a human rights issue and an environmental issue. There are around 300 million people that make up Indigenous communities worldwide, the majority of whom live in forests. Furthermore, Indigenous customary lands contain 80% of the world’s biodiversity. Traditionally, Indigenous communities have been stewards of their lands, where they regard the land as means for their own physical, spiritual, and cultural survival rather than a commodity to be exploited. The only protection Indigenous Peoples have against resource extraction in international law, under the Indigenous and Tribal Peoples (ILO) Convention 169, is the right to consultation and participation. Effectively, Indigenous communities have limited decision-making power in this context. This narrow protection of Indigenous Peoples’ lands and natural resources under ILO Convention 169 is inadequate and informed by a colonial past. For there to be adequate protections of Indigenous Peoples’ land and resource rights, Indigenous Peoples must hold actual decision-making power, not just participatory power. Free, prior, and informed consent (FPIC) is the principle and right that is critical to safeguarding Indigenous lands and resources as it is grounded in the foundational right of self-determination. Thus, I argue operationalizing FPIC would provide a comprehensive protection of Indigenous rights by ensuring that affected Indigenous communities (1) design the procedures for obtaining their consent (2) retain negotiating power and (3) actually agree to proposed projects.

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