Free Prior and Informed Consent for Indigenous Communities

The LRC’s regional project focuses on the protection of community rights to resources and, in particular, aims to find ways in which to improve the imbalance of power between rural communities in Africa and those interested in their resources; be they government or potential investors.

The imbalance of power is not only a function of the gross inequality of financial resources between these parties, but exacerbated by the fact that the resource rights of rural communities on the African continent continue to be unrecognised within the formal legal systems of their countries. Ironically, while the British Privy Council’s pronouncements in 1919 in In re Southern Rhodesia that, “some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society”, seem outrageous in a world that now accepts equality as a fundamental right, African governments and investors continue to regard customary tenure as inferior to titled ownership and treat it with the associated indifference. The result is the displacement and resource dispossession of millions of people across the continent as the demand for Africa’s land and resources increase.

Our advocacy for the proper recognition of customary law as a source of community rights and resources aims not only to establish community ownership, and the protections that that will entail, but also to promote the principle of free, prior and informed consent. This principle has been established in international law as a right of indigenous groups. But rural communities consulting with potential investors can only have actual bargaining power if they have the right to say “no”. We argue that this principle is one found in customary legal systems and, as such, should be applied to all customary communities.

The nature of customary law also provides the basis for our understanding of compensation and reparation. In cases where communities are compensated after removals, the measurement of their loss is generally reduced to the hectares of grazing land and the square metres of their houses. However, if the nature of customary communities is to be understood and recognised, reparation will have to take into account the loss of community, custom and culture. We are actively engaging with the African Commission on Human and Peoples’ Rights and, in particular, its Working Group on Extractive Industries, Environment and Human Rights Violations. Notably, we successfully lobbied for the Commission to adopt a resolution on the situation of extractive industries in Africa, which acknowledges the problem of the non-recognition of customary tenure and the right to free, prior and informed consent. To read more about the Working Group, please visit the website.

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realisingrights

The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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