Indigenous Consent: A Self-Determination Perspective

IF 1 Q2 LAW
N. Yaffe
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引用次数: 5

Abstract

With the rise of “Free, Prior, and Informed Consent” (“FPIC”), obtaining consent from Indigenous peoples has become central to many struggles involving Indigenous communities. Yet even as consent-seeking practices become more universal, developments in the implementation of FPIC threaten to sever FPIC from its normative foundations. FPIC is a manifestation of, and pathway towards promoting, self-determined governance by Indigenous communities. Self-determination, however, is all but absent from the conception of FPIC articulated by those who often bear de facto responsibility for its implementation: companies who wish to pursue projects on Indigenous peoples’ land. Companies have taken the lead in (1) generating normative guidance regarding FPIC, (2) implementing FPIC processes, and (3) evaluating FPIC processes’ implementation. Yet FPIC as interpreted and implemented by actors on the ground has heretofore received insufficient attention. This article critically evaluates emerging FPIC practices in light of FPIC’s normative foundations. This article suggests that we are witnessing “FPIC’s normative drift”: a process whereby FPIC is adopted by companies, but denuded of its normative import. Corporate articulations of FPIC suggest companies employ a thin, liberal notion of consent, inconsistent with understanding FPIC as part of a self-determined governance process. I argue that corporate delegation of FPIC obligations has gone too far, such that independent oversight from settler State or independent authorities is needed. I explore options for the institutional and procedural form for settler State re-engagement.
土著同意:一个自决的视角
随着“自由、事先和知情同意”(FPIC)的兴起,获得土著人民的同意已成为涉及土著社区的许多斗争的核心。然而,即使寻求同意的做法变得更加普遍,FPIC实施的发展也有可能使FPIC脱离其规范基础。FPIC是土著社区自主治理的一种表现和促进途径。然而,那些经常对实施FPIC负有实际责任的人——那些希望在土著人民的土地上开展项目的公司——所阐述的FPIC概念中几乎没有自决。公司已经在以下方面发挥了带头作用:(1)制定FPIC的规范性指导,(2)实施FPIC流程,以及(3)评估FPIC流程的实施。然而,由实地行动者解释和执行的FPIC迄今没有得到足够的重视。本文根据FPIC的规范基础对新兴FPIC实践进行了批判性评估。这篇文章表明,我们正在目睹“FPIC的规范漂移”:FPIC被公司采用的过程,但被剥夺了规范的重要性。企业对FPIC的表述表明,企业采用了一种单薄、自由的同意概念,这与将FPIC理解为自主治理过程的一部分不一致。我认为,FPIC义务的公司授权已经走得太远,因此需要来自定居者国或独立当局的独立监督。我探讨了移民国重新接触的体制和程序形式的备选办法。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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