Submission to OHCHR Call for Inputs: Indigenous Peoples Free, Prior and Informed Consent, Business and Human Rights
1. Just Atonement Inc. (JAI) is a law non-profit that trains planetary defenders to address threats to human rights, a livable planet, and the international rule of law.
2. JAI was founded in the United States of America in 2017.
3. JAI was founded to address the challenges arising from the intersection of climate change, global peace, and threats to the rule of law and the habitability of the planet.
4. JAI submits this written submission with respect to the “Call for inputs - Indigenous Peoples Free, Prior and Informed Consent, Business and Human Rights” issued by the Working Group on Business and Human Rights.
5. This submission discusses the need to implement free, prior, and informed consent (FPIC) in the context of Indigenous self-determination in the Arctic. This submission argues that FPIC, which derives from and is a corollary to the right to self-determination of Indigenous Peoples, is a mandatory component of the international legal obligation to protect and promote the self-determination of all peoples. FPIC must be strengthened and affirmed to ensure that Arctic Indigenous Peoples have primary input and control over their traditional lands, territories, and resources in the face of shifting environmental conditions and a warming Arctic.
Arctic Indigenous Peoples are under threat from climate change
6. The Arctic is home to around 500,000 Indigenous People across three continents and 20 million kilometers.[1]Arctic Indigenous Peoples have inhabited their ancestral land for millennia. The massive demand for transition minerals disproportionately impacts Indigenous Peoples all over the world, who host more than half of the transition mineral mines.[2] Negative impacts of this demand are particularly acute in the Arctic.
FPIC and the “Green Transition”
7. The demand for minerals such as lithium, copper, and nickel is anticipated to increase as countries transition to renewable energy to achieve their climate objectives.[3] Demand for critical minerals must quadruple by 2040 in order to achieve net-zero targets.[4] According to research published in Nature Sustainability, over half of the projects that are presently extracting these minerals are located on or near territories that are inhabited by Indigenous and peasant peoples.[5]
FPIC is a fundamental obligation under international law
8. FPIC is a legal principle that provides Indigenous Peoples the right to either agree to or disagree with actions that could affect their lands, territories, and resources.[6] The relationship between FPIC and self-determination is directly recognized by UN special procedures and mandates, including the Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur on the rights of Indigenous Peoples, and is embedded in key international law instruments.[7] Recent reports and studies from the UN Expert Mechanism on the Rights of Indigenous People conclude that FPIC is not merely a process, but a direct expression of Indigenous self-determination.[8] There is therefore an inextricable link between FPIC and the protection and promotion of the self-determination of Indigenous Peoples.
9. Legal sources giving rise to FPIC include:
a. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is the lowest standard with respect to State obligations to promote and protect the fundamental rights of Indigenous Peoples. Article 32(2) declares that countries must work with Indigenous Peoples “in good faith” to attain their FPIC before starting any project that affects their lands, resources, or territories, especially when it involves using minerals, water, or other resources.[9]
b. The Indigenous and Tribal People’s Convention (International Labor Organization Convention 169) has been ratified by 24 countries. Among Arctic States, only Norway and Denmark have ratified this convention that ensures Indigenous Peoples have a say in decisions that affect their resources and livelihoods.[10]
c. Article 8(j) of the Convention on Biological Diversity (CBD) requires contracting States to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.”
Other relevant, legally binding instruments include:
d. The International Covenant on Civil and Political Rights (ICCPR) (Article 1, protecting the self-determination of all peoples).
e. The International Covenant on Economic, Social and Cultural Rights (ICESCR) (Article 1, protecting the self-determination of all peoples).
f. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (as interpreted by General recommendation 21 (48) adopted at 1147th meeting on 8 March 1996: Committee on the Elimination of Racial Discrimination, 48th session, 26 February-15 March 1996).
Legal Interpretations of FPIC
10. Ogoni (SERAC v. Nigeria)
In this case, the African Commission on Human and Peoples’ Rights (ACHPR) addressed the failure to involve Ogoni communities in decisions about their land and resources. The ACHPR recognized the Ogonis as a distinct people, entitled to Charter peoples’ rights. The ACHPR determined that the Nigerian government’s approval of oil corporations had breached the Ogonis’ rights under Article 21, which provides the freedom to freely dispose of wealth and natural resources. In addition, the government did not involve Ogoni communities in development choices in Ogoniland.[11]
11. Saramaka v. Suriname
The Inter-American Court of Human Rights acknowledged the collective property rights of the Saramaka people over their ancestral lands in Suriname, which were jeopardized by logging and mining concessions awarded without their consent. The Court established that States must secure FPIC for major development projects and also raised the issue of benefit-sharing while respecting traditional governance structures. The Court articulated an “inextricable connection” between Indigenous communities and their territory and the “natural resources that lie on and within the land”, which required protection to “guarantee their very survival”.[12]
12. Tagaeri and Taromenane v. Ecuador
The Inter-American Court of Human Rights determined that the Ecuadorian government violated rights such as self-determination, cultural identity, and collective property by failing to prevent extractive activities and violence in the Tagaeri and Taromenane territories.[13] The Court’s decision established the “right to no contact”, which means that Indigenous groups who choose to stay isolated have the right to be left alone without outside interference. States are obligated to honor this choice to remain uncontacted as an expression of Indigenous self-determination.[14]
13. This jurisprudence reflects the critical understanding that FPIC is tethered to Indigenous existence and survival and Indigenous self-determination.
14. Although international law mandates that States consider Indigenous Peoples’ refusal of consent as a critical factor when a proposed project is likely to significantly affect them, there is a significant gap between international legal standards and State implementation.[15]
15. It is not enough to treat FPIC as a mere suggestion; rather, international law must affirm that FPIC is a critical, substantive requirement, providing Indigenous Peoples with affirmative rights to protect their self-determination and their connection to lands, territories, and resources. FPIC must be strengthened and affirmed as Arctic environmental conditions are radically shifting and the Arctic itself transforms into a different landscape. Arctic Indigenous Peoples are not responsible for environmental degradation in the Arctic, and their right to decide the future of Arctic lands, territories, and resources must be protected and promoted as an essential aspect of their self-determination.
Application of FPIC in the context of business and human rights
16. States must ensure that businesses follow international law, including (without limitation) applicable rules set forth in the UNDRIP and ILO 169. This means that corporate policies, supply chains, and investments must not support violations of international law or engage in discrimination against Indigenous Peoples.
17. FPIC must be treated as a mandatory component of corporate practice. Businesses should only undertake corporate conduct where affected Indigenous Peoples have freely and affirmatively provided consent.
18. Policies adopted by financial institutions, including performance standard 7, OECD guidelines, and the Equator Principles must be significantly strengthened to include grievance and compliance monitoring, judicial review, and other accountability mechanisms.[16]
19. Judicial review must be strengthened to ensure that a State complies with international norms regarding Indigenous self-determination. This must include domestic judicial review of corporate business conduct as well as the possibility of regional or international review by a competent human rights authority. The positive obligation to promote the self-determination of Indigenous Peoples may therefore require significant improvements and upgrades in State judicial processes to ensure that Indigenous Peoples can obtain judicial relief to stop or halt a project that did not comply with international FPIC standards.
20. Investors of business enterprises should demand that such companies uphold the rights of Indigenous Peoples across all facets of their operations, align with international standards, and adopt policies and practices that guarantee the fulfillment of consultation and consent obligations in regions where Indigenous communities may be impacted.[17]
Application in the context of Arctic Indigenous Peoples
21. The self-determination of Arctic Indigenous Peoples must be upheld, promoted, and protected in the context of climate change. Therefore, we provide the following recommendations in the context of FPIC, the Arctic, and resource extraction:
States must:
a. Enshrine in domestic law the right of Indigenous Peoples to their self-determination and to their lands, territories, and resources.
b. Ensure that Indigenous Peoples may seek legal redress for infringements of their self-determination, including in instances where FPIC was not obtained for a corporate project.
c. Enter into regional agreements to ensure that Indigenous Peoples whose communities may cross State borders have unhindered access to traditional lands, territories, and resources, irrespective of State nationality.
d. Ensure coordination among ministries (environment, mining, and energy) and require that investors use FPIC compliance as a due diligence benchmark.
e. Guarantee continuous consultation throughout the project lifecycle and fund independent legal and technical advisory services for Indigenous communities.
f. Legally prioritize and support resource extraction initiatives led by Indigenous Peoples in their territories over third-party interests.
g. Comply with, and ratify as applicable, the UNDRIP, ILO 169, and the American Declaration on the Rights of Indigenous Peoples, and consent to independent monitoring and reporting with respect to the same.
h. Implement and promote the rights protected by the ICCPR, ICESCR, and ICERD, and consent to monitoring with respect to the same.
Businesses must:
i. Publicly disclose impact assessments and consultation outcomes with respect to extractive projects on Indigenous lands and territories.
j. Refrain from obtaining permits and licenses in violation of Indigenous rights.
k. Cooperate and coordinate with other business enterprises regarding FPIC compliance, including by creating a UN-based global reporting mechanism on FPIC compliance in business contexts.
l. Comply with applicable international law.
Financing institutions, banks, and investors must:
m. Make FPIC a non-negotiable condition for financing and require independent verification of FPIC compliance before disbursing funds.
[1] Federal Environment Ministry. (2025). The Arctic. Federal Ministry for the Environment, Climate Action, Nature Conservation and Nuclear Safety; BMUKN. https://www.bundesumweltministerium.de/en/topics/international/multilateral-cooperation/the-arctic
[2] Hillsdon, M. (22 Sept 2025). Indigenous peoples “caught between a rock and a hard place” in the energy transition. Reuters. https://www.reuters.com/sustainability/land-use-biodiversity/indigenous-peoples-caught-between-rock-hard-place-energy-transition--ecmii-2025-09-22/
[3] Niri, A. J., Poelzer, G. A., Pettersson, M., & Rosenkranz, J. (2025). Evaluating battery mineral future supply through production predicting in the context of the green energy transition. Resources Policy, 103, 105526. https://doi.org/10.1016/j.resourpol.2025.105526
[4] World Economic Forum. (13 May 2025). What are the critical minerals for the energy transition – and where can they be found? https://www.weforum.org/stories/2025/05/critical-minerals-energy-transition-supply-chain-challenges/.
[5] Owen, J. R., Kemp, D., Lechner, A. M., Harris, J., Zhang, R., & Lèbre, É. (2022). Energy transition minerals and their intersection with land-connected peoples. Nature Sustainability, 6(2), 203–211. https://doi.org/10.1038/s41893-022-00994-6
[6] Owen, J. R., Kemp, D., Harris, J., Lechner, A. M., & Éléonore Lèbre. (2022). Fast track to failure? Energy transition minerals and the future of consultation and consent. Energy Research & Social Science, 89, 102665–102665. https://doi.org/10.1016/j.erss.2022.102665
[7] Calí Tzay, J. F. (2023). Green financing: A just transition to protect the rights of Indigenous Peoples (A/HRC/54/31). United Nations Human Rights Council. https://docs.un.org/en/A/HRC/54/31, paras 38, 76.
[8] United Nations Expert Mechanism on the Rights of Indigenous Peoples. (4 Aug 2021). Efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples: Indigenous peoples and the right to self-determination (A/HRC/48/75). https://docs.un.org/en/A/HRC/48/75para 39; United Nations Expert Mechanism on the Rights of Indigenous Peoples. (10 Aug 2018). Free, prior and informed consent: a human rights-based approach (A/HRC/39/62) https://docs.un.org/en/A/HRC/39/62 para 3.
[9] United Nations Declaration on the Rights of Indigenous Peoples | Division for Inclusive Social Development (DISD). (2025). Un.org. https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples
[10] Implementing the ILO Indigenous and Tribal Peoples Convention No. 169: Towards an inclusive, sustainable and just future | ORBIS. (2020). Europa.eu. https://espas.secure.europarl.europa.eu/orbis/document/implementing-ilo-indigenous-and-tribal-peoples-convention-no-169-towards-inclusive
[11] Barrie, G. (2024). ‘The ‘Right’ to Free, Prior and Informed Consent: Evolving Customary International Law,’ in Villiers, B., Isra, S., and Faiz, P.M. (eds), Courts and Diversity: Twenty Years of the Constitutional Court of Indonesia pp. 205-206.
[12] Comar, D.-I. (2024). Protecting the Territorial and Resource Dimension of Self-Determination from Climate Change Impacts. https://doi.org/10.2139/ssrn.4858152
[13] Auz, J. (2025). The justiciability of the precautionary principle in the Tagaeri and Taromenane et al. v. Ecuador before the Inter-American Court of Human Rights. Opinio Juris. https://opiniojuris.org/2025/07/30/the-justiciability-of-the-precautionary-principle-in-the-tagaeri-and-taromenane-et-al-v-ecuador-before-the-inter-american-court-of-human-rights/
[14] Bachmann, J. (2025). From the right to be consulted to the right to no contact: The Inter-American Court faces its first case on Indigenous Peoples in voluntary isolation. EJIL: Talk!. https://www.ejiltalk.org/from-the-right-to-be-consulted-to-the-right-to-no-contact-the-inter-american-court-faces-its-first-case-on-indigenous-peoples-in-voluntary-isolation/
[15] Razzaque, J. (2019). A Stock-Taking of FPIC Standards in International Environmental Law. Cambridge University Press EBooks, pp. 202-203. https://doi.org/10.1017/9781108612500.009
[16] Calí Tzay (n 8) paras 30-38.
[17] Klein, L., María Jesús Muñoz-Torres, & Izquierdo, F. (2025). Free, Prior, and Informed Consent and Human rights impact assessments: Lessons from Repsol’s operations in Wayuu territories in La Guajira, Colombia. Resources Policy, 106, 105554–105554. https://doi.org/10.1016/j.resourpol.2025.105554