FPIC

Global activism led to the emergence of new international standards concerning state obligations to consult Indigenous peoples and, under certain circumstances, obtain their free, prior and informed consent (FPIC) when extractive projects impact their rights and traditional territories. However, a growing literature shows that the implementation of Indigenous peoples’ participatory rights remains uneven and inconsistent at best. This paper focuses on Indigenous peoples’ agency in operationalising their rights. We do so by focusing on an increasingly common yet overlooked Indigenous strategy: the development of community-based consultation and consent protocols. What role do unilateral Indigenous protocols play in shaping how participatory norms are implemented? How can protocols contribute to shaping Indigenous peoples’ relations with state and industry actors? We present the result of a systematic comparative analysis of thirty-five consultation and consent protocols adopted by Indigenous nations and communities in Canada and Brazil between 2005 and 2020. While they vary in their structure and content, protocols in both countries converge in their use of both programmatic and performative languages to recast participatory processes as spaces to assert Indigenous peoples’ status and legitimacy as self-determining polities. In doing so, protocols re-politicise and re-appropriate participatory processes and put forward an alternative interpretation of their participatory rights that challenges how state authorities and industry actors tend to operationalise consultation and FPIC standards.

This article aims to document the phenomenon of Indigenous consultation protocols in Brazil by comparing two cases, the Juruna and the Munduruku protocols. This paper also intends to trace the emergence and uses of these protocols by the actors in place, in order to emphasize not only their legal but also political scope. The following comparison brings to light that, even though there are widespread advances and challenges regarding the Indigenous consultation protocols in Brazil and being the protocols theoretically similar, in fact, there is a significant variation in the trajectories of emergence and implementation of those protocols. In conclusion, the proposed comparison shows that a contextual and situated analysis that focuses on the strategies and practices of the actors may be more fruitful in order to understand, in practice, how the mechanisms of appropriation of the norm of FPIC and its implementation operate.