Relationships with Arctic indigenous peoples: To what extent has prior informed consent become a norm?

• Author: Layla Hughes
• Date: 01 April 2018
• DOI: http://doi.org/10.1111/reel.12232
• Published date: 01 April 2018

SPECIAL ISSUE ARTICLE

Relationships with Arctic indigenous peoples: To what extent

has prior informed consent become a norm?

Layla Hughes

Correspondence

Email: lhughes@ciel.org

‘Indigenous engagement’re fers to a range of relation ships with indigenous

peoples. Engagement may ap ply to research activities, g overnment decision

making, economic activ ities, or any other intera ction that will bring peopl e into or

affect an indigenous comm unity. Free, prior and inform ed consent (FPIC) is an

aspect of indigenous eng agement that is gaining inc reasing recognition in int erna-

tional and domestic law. Th is article examines the e xtent to which laws, policie s

and practices in the Arcti c support FPIC. A review of cu rrent practices in the

Arctic suggests that for the m ost part, States provide for som e degree of prior

information sharing an d consultation but have yet to i mplement mechanisms to

ensure consent before allow ing activities in the Arctic to pro ceed. At the same

time, governance structu res in various parts of the Arcti c help to fulfil indigenous

self-determination and th erefore provide promising alt ernative means for support-

ing indigenous human righ ts.

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INTRODUCTION

Indigenous peoples have a specific connection to land and natural

resources, which are an important part of their culture and trad-

itional ways of life. The significance of their relationship to the nat-

ural world has led to extensive developments regarding their rights

in international law, although these rights have not yet been fully

translated into domestic law.

Many indigenous people inhabit the Arctic, and they have a wide

range of cultural, historical and economic backgrounds.

1

These

people have multiple and ever-increasing contact with non-indigen-

ous people who, for example, seek to develop natural resources or

better understand and address the rapidly changing climate. The

relationships between governments, corporations, non-profit organ-

izations, researchers and indigenous peoples are guided by evolving

laws, policies and protocols that are increasingly rooted in an

acknowledgement and respect for the autonomous nature of indigen-

ous peoples and indigenous human rights.

One of the most important aspects of indigenous relations is the

recognition of the right of free, prior and informed consent (FPIC).

The United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP) sets out this right and has helped to drive a fundamental

shift in indigenous relations.

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Given the significant impact that cli-

mate change is having on the human rights of indigenous peoples in

the Arctic,

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the growing recognition of indigenous rights is particu-

larly important in this region.

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1

There are various definitions of ‘indigenous peoples’. The 1989 Indigenous and Tribal

Peoples Convention refers to indigenous peoples as those who ‘on account of their descent

from the populations which inhabited the country, or a geographical region to which the coun-

try belongs, at the time of conquest or colonisation or the establishment of present State

boundaries and who, irrespective of their legal status, retain some or all of their own social,

economic, cultural and political institutions’. International Labour Organization Convention

No. 169 (adopted 27 June 1989, entered into force 9 May 1991) 28 ILM 1382 (ILO Conven-

tion No. 169) art 1. Although the term ‘indigenous’is not a common term for all Arctic coun-

tries, this article will use the terms ‘indigenous peoples’,‘indigenous groups’and ‘indigenous

community’interchangeably and without regard to their particular legal status.

2

See, e.g., L Hein€

am€

aki, ‘Global Context –Arctic Importance: Free, Prior and Informed Con-

sent, a New Paradigm in International Law Related to Indigenous Peoples’in T Herrmann

and T Martin (eds), Indigenous Peoples’Governance of Land and Protected Territories in the

Arctic (Springer 2016) 209.

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Petition to the Inter-American Commission on Human Rights Seeking Relief from Viola-

tions of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and

Melting Caused by Emissions of Black Carbon by Canada, Submitted by the Arctic Athabas-

kan Council on Behalf of All Arctic Athabaskan Peoples of the Arctic Regions of Canada

and the United States (23 April 2013) <https://earthjustice.org/sites/default/files/AAC_PETI

TION_13-04-23a.pdf>.

DOI: 10.1111/reel.12232

RECIEL. 2018;27:15–27. wileyonlinelibrary.com/journal/reel

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