States must hold good faith consultations with indigenous, peasant, fisher-folk, traditional, urban or other communities before any plan, project, legislative or constitutional reform, or administrative measure that may affect directly or indirectly the housing or land, territories or natural wealth in their possession, or that they occupy, or traditionally utilize or depend on for their traditional and livelihood activities. States must generate consensus regarding the procedures of these consultations that must be in harmony with the criteria, customary rules and decision-making structures of the indigenous peoples or other communities, as to facilitate access to the consultations to all the affected population, giving it ample diffusion and creating a climate of trust that will favor a productive dialogue.
The consultation aims for both parties to reach a mutual understanding and to adopt decisions by consensus. If the consulted communities do not give their free, prior and informed consent (FPIC) to the plan, project, policy, or legislative or administrative measure object of the consultation, then this cannot be implemented.
FPIC applies distinct rights to livelihood, food and housing, as enshrined in the International Covenant on Economic, Social and Cultural Rights (Article 11), as well as its prohibitions against violating self-determination: "In no case may a people be deprived of its own means of subsistence” (Article 1.2). It combines also human rights to information and participation, as guaranteed is the International Covenant on Civil and Political Rights (Articles 19 and 21, respectively).
In local application, FPIC grounded in the principle that "a community has the right to give or withhold its consent to proposed projects that may affect the lands they customarily own, occupy or otherwise use.” A concept advanced by many organizations, including the Forest Peoples Program, is now a key principle in international law and jurisprudence related to indigenous peoples.
Case law establishing FPIC rights includes Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008).
For more detail, see: Civil Society Organizations´ Proposals for the FAO Guidelines on Responsible Governance of Land and Natural Resources Tenure (pp. 20–23).
