Protecting Indigenous Peoples’ rights with principle of Free, Prior and Informed Consent
|Published
by |Khaeb (Shaun MacDonald)
“The only constant is change”.
This statement, credited to Greek philosopher Heraclitus, is an apt one when considering the global Indigenous movement over the past decade or two. This does, however, coincide with a growing interest to challenge the status quo by the broader international community.
Let me be clear, the status quo I refer to is the collective still operating within the mindset spurred on by greed.
Greed is a simple and effective contributor to the exploitation of others. Likewise, this is the case with nature, specifically the natural resources humans use for their personal benefit. For centuries, this was a driving force for colonialism. To date, there have been many unjust practices that have already been addressed.
However, many more still faces challenges of correction as the status quo would agree in principle, but lacks credibility in implementation. Is this more evident than the status of the Republic of South Africa, noted as being the most unequal society on the planet?
Surely, it cannot be that one of the most celebrated Constitutions in the world would produce a result such as that of inequality.
To address the centuries-old unjust and grotesque practice of exploiting Indigenous Peoples, the principle of Free, Prior and Informed Consent (FPIC) is being acknowledged more and more, with what could be described as progressive results.
To those not familiar with the principle of FPIC, it refers to the right of Indigenous Peoples to give or withhold their consent for any actions that would affect their lands, territories or rights. This principle is within the most advanced global mechanism on Indigenous rights – the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on September 13, 2007.
Considering that the democratic republic’s government has been perpetuating these practices of exploitation and marginalisation against the Indigenous Peoples of these lands, this has interesting ramifications locally. To better emphasise this, I’ll share international examples/actions that will affect local operations.
On September 14, this year, the European Parliament took a major step in aligning with the UNDRIP. In their Critical Raw Materials Act (CRMA), they adopted the principle of FPIC. The Critical Raw Materials Act, according to the European Commission, “was presented in parallel to the EU’s Net Zero Industry, is a regulatory framework that will ensure EU access to a secure and sustainable supply of critical raw materials, enabling Europe to meet its 2030 climate and digital objectives”.
What this means is that the EU has legislated that when they acquire the materials needed for their strategic sectors of decarbonisation, digitalisation, and aerospace and defence, the source of the materials itself has to have the principle of FPIC adopted and implemented. This is an important act especially considering that, according to the UN, more than 60% of the minerals needed for future technology is located on the lands of Indigenous Peoples.
What does this mean from a local perspective?
In a previous piece on published on January 30, I made mention of the to-date perpetuation of exploitative practices from the mining industry. The republic’s mining sector has no policy in place that recognises the Indigenous Peoples whose lands they are mining, and making massive profits from as an industry.
However, with the European market being a key market for the republic, the CRMA places the onus on the local mining sector to adapt.
The principle of FPIC too will need to make its way into the policies of mining companies, especially those trading with the European market.
As is the case for Indigenous Peoples across the globe, legislation such as the CRMA from “leading” countries bode well for the local work to address the rights of Indigenous Peoples to the lands and natural resources.
This adds to other mechanisms such as the UN Guiding Principles on Business and Human Rights, where a stronger focus is on corporate accountability.
On a broader note, it is the reaction from the government of South Africa that one is to keep a close eye on. As a trading partner, what legislative response will they take to the CRMA?
We come across a simple example when shining a light on the Presidential Climate Commission and the work that it does in relation to the, Just Energy Transition.
What will adopting the principle of FPIC mean to the strategy and recommendations coming from this commission?
For even greater consideration – how soon before the mining charter is challenged through the lens of FPIC?
Obviously, the challenges the local mining industry will be facing is not limited to that sector alone though.
When the Deputy Judge President of the Western Cape High Court on March 18, 2022, gave judgement that temporarily put a stop to the River Club (Amazon) development in Observatory, Cape Town, she said that the First Nations Peoples must again be consulted, and fairly so. This was a case of FPIC being recognised by the judge.
This follows similar judgements by the same court to stop seismic surveys off the West Coast a few months earlier. Again, the lack of consent from Indigenous (fishing) communities played a key role in the judgement.
With more and more Indigenous Peoples understanding their Indigenous rights, we are sure to have an increase in cases where the State and private sector is challenged for not applying the principle of FPIC.
The State will need to act better than its idea of recognition of the First Nation Peoples through the Traditional and Khoi-San Leadership Act (3 of 2019).
It has already successfully been challenged at the Constitutional Court. The private sector can no longer refer to a national government that does not recognise the Indigenous Peoples, as there are international laws and case studies that can be used to hold them to account as well.
We do, however, remain hopeful that these aforementioned stakeholders begin to act progressively out of their own accord, instead of needing to be nudged into addressing past injustices that they wilfully continue to this day.
The Indigenous Peoples have rights, and our Free, Prior and Informed Consent is no longer to be discarded.
* |Khaeb (Shaun MacDonald) is an Indigenous business leader, and CEO of The Khoeporation (SA’s first Indigenous Strategic Advisory company).
** The views expressed here are not necessarily those of Independent Media.
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