Albany Law Review
Carla F. Fredericks, Operationalizing Free, Prior, and Informed Consent, 80 Alb. L. Rev. 429 (2016-2017), available at https://scholar.law.colorado.edu/articles/804.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to create their own FPIC protocols when interacting with indigenous peoples. At present, there is an absence of FPIC protocol that has been developed by indigenous peoples themselves. A tribal FPIC law and protocol may serve as a starting point and model to actualize these rights for the development or use of culture, lands, territories and resources, and may serve to implement a portion of the UNDRIP. This article contends that indigenous peoples must develop and implement their own FPIC protocol in order to assert their human rights, and offers a model under United States law for Indian tribes to assert their sovereign and human rights without waiting for member state implementation.
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