LAND RIGHTS AND FREE, PRIOR AND INFORMED CONSENT

Early HRC cases such as Ivan Kitok v Sweden (1988),²⁵⁴ Chief Bernard Ominayak and the Lubicon Lake Band v Canada (1990),²⁵⁵ Ilmari Lansman et al v. Finland (1994),²⁵⁶ and Jouni E. Lansman et al v Finland (1996),²⁵⁷ adjudicated Indigenous land rights issues. As former HRC member Martin Scheinen wrote, ‘although Article 27 does not employ the notion of “Indigenous peoples”, much of the case law developed under the provision has been related to claims by such groups.’²⁵⁸ Several of these decisions did not ultimately find a violation of Article 27, but they are nevertheless significant for establishing certain principles. Notably, the HRC understood interference can constitute “denial” in the sense of Article 27 by developing a test of meaningful consultation with the group.²⁵⁹ Scheinen cites as an example the Committee’s findings in Ilmari Lansman (1994), ‘that the authors were consulted during the proceedings’, the emphasis in bold being added by the Committee with the fact of consultation informing the conclusion that Article 27 was not violated.²⁶⁰ The Committee examined also the ‘consultation process’ in relation to Maori fishing rights in Apirana Mahuika et al v New Zealand (2000),²⁶¹ similarly concluding:

‘While it is a matter of concern that the settlement and its process have contributed to divisions amongst Maori, nevertheless, the Committee concludes that the State party has, by engaging itself in the process of broad consultation before proceeding to legislate, and by paying specific attention to the sustainability of Maori fishing activities, taken the necessary steps to ensure that the Fisheries Settlement and its enactment through legislation, including the Quota Management System, are compatible with article 27.’²⁶²

Later HRC caselaw involving Indigenous peoples would build on these findings to articulate the principle of free, prior and informed consent (FPIC). In Angela Poma Poma v Peru (2009),²⁶³ the communication related to the diversion of water from the Peruvian highlands to a coastal city, depriving the Indigenous Aymara people of access to underground springs essential to their traditional livelihood of raising llamas and alpacas. The HRC held: ‘The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.’²⁶⁴ The reference to ‘mere’ consultation distinguishes this from the higher threshold required by consent.

While Poma Poma is notable for its express recognition of FPIC, other aspects of the decision have been criticised. Katja Gocke discusses the framing of the communication in which the complainant did not initially articulate a breach of Article 27, because she wished for the case to be understood as one of a collective right to self-determination under Article 1 rather than individual minority rights under Article 27, with the HRC then “re-interpreting” the communication as a breach of Article 27.²⁶⁵ As a result, ‘it reduced Ms Poma Poma’s people, the Aymara, to a minority and thus deprived the Aymara of their collective rights.’²⁶⁶ The case was a ‘step backwards’ in not even referring to the Article 1 collective right to self-determination to interpret the content of Article 27,²⁶⁷ which it had done in previous caselaw - as the Committee held in Apirana Mahuika (2000), ‘the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27.’²⁶⁸ Hence, Poma Poma displayed a certain residual tension in addressing Indigenous peoples’ rights under Article 27.

In Ailsa Roy v Australia (2024),²⁶⁹ the Committee affirmed an approach whereby, in an Indigenous context, Article 1 informs decision-making under Article 27, and the concept of minority is avoided. The author claimed that the State Party violated Article 27 due to the lack of effective participation by the Wunna Nyiyaparli Indigenous people in the judicial proceedings demarcating their traditional territories. The communication argued specifically for an ‘evolutionary interpretation of article 27’,²⁷⁰ including incorporating regional human rights jurisprudence from the Inter-American Commission on Human Rights to interpret international human rights standards. The Committee concluded that there was a violation of Article 27, read in light of Article 1 of the Covenant and the UNDRIP.²⁷¹ It referred also in its findings to decisions by CERD, as well as jurisprudence from the Inter-American and African Commissions and Courts.²⁷² The Committee held: ‘Mechanisms of delimiting, demarcating and granting collective titles can legally affect, modify, reduce or extinguish Indigenous Peoples’ rights with regard to their traditional territories. As a consequence, the Committee considered that such mechanisms require prior consultation of the relevant Indigenous People.’²⁷³ It invoked the established principle that human rights treaties are living instruments, to conclude:

‘States are bound to adopt measures to guarantee and give legal certainty to Indigenous Peoples’ rights in relation to ownership of their traditional territories through the establishment of such mechanisms and procedures for delimitation, demarcation and titling in accordance with their customary law, values and customs.’²⁷⁴

Nowhere in the decision is there a reference to Indigenous peoples as “minorities”. Thus, Ailsa Roy marks to a certain extent a break of Article 27 from the concept of a minority - in an Indigenous context, the concept of a minority is no longer needed to reach a violation. Nevertheless, the Committee maintained that a stand-alone Article 1 case on self-determination would not be admissible under the Optional Protocol. It recalled that ‘although it does not have competence under the current development of its jurisprudence to consider a claim alleging a violation of article 1 of the Covenant, it may, when relevant, interpret that article in determining whether rights protected in parts II and III of the Covenant have been violated.’²⁷⁵ Therefore, it may take Article 1 into account in interpreting Article 27 and other provisions of the Covenant, but self-determination cannot be litigated on its own and Indigenous questions must still be brought under the rubric of Article 27. We may expect the Committee, however, to avoid the language of minority rights in reaching decisions under Article 27 in relation to Indigenous peoples. Ailsa Roy is particularly significant in applying the obligation to title Indigenous land that has developed in the regional systems, to the international context. As the Committee found, for Indigenous peoples, the ‘recognition, demarcation and registration of lands represent essential rights for cultural survival.’²⁷⁶ This is now an international standard.

CERD jurisprudence has also expanded on Indigenous peoples’ land rights. In Lars-Anders Agren et al v Sweden (2020),²⁷⁷ the 15 petitioners were Indigenous Sami and all members of the Vapsten Sami reindeer herding community practising traditional reindeer herding. They argued that the State party had granted exploitation concessions to a private mining company in the community’s traditional territory without their consent in violation of a number of provisions including Article 5(d)(v) ICERD, which relates to ‘[t]he right to own property alone as well as in association with others’.²⁷⁸ Sweden countered that the concessions did not violate Article 5(d)(v) since the Sami’s right to practise reindeer husbandry under Swedish legislation is not a right of ownership of land and does not entail formal title to or ownership of the land in question, but is a right of usufruct, which allows them to use land and water for their own maintenance and that of the reindeer.²⁷⁹ It argued the right to FPIC as expressed in UNDRIP was ‘not legally binding and does not entail a collective right of veto’.²⁸⁰ It referred instead to an obligation of consultation which should be carried out in good faith with an objective of achieving agreement and building consensus, but that ‘consent may not be required when a limitation on Indigenous peoples’ rights is considered to be necessary and proportional in relation to a valid State objective.’²⁸¹ Thus, the stakes in the communication were high, with the legal meaning of FPIC in the context of the collective right to property of Indigenous peoples at issue.

Firstly, it should be recalled that in CERD GR 23, the first general recommendation on Indigenous peoples by a UN treaty body, the Committee noted that ‘no decisions directly relating to their [Indigenous] rights and interests are taken without their informed consent.’²⁸² GR 23 referred to consent rather than consultation, and the difference between the terms has since been emphasized by the UN Expert Mechanism on the Rights of Indigenous Peoples - ‘[c]onsultation and participation are crucial components of a consent process. States must have consent as the objective of consultation’.²⁸³ In Agren, the Committee recalled GR 23 and held that ‘to refrain from taking appropriate measures to ensure respect in practice for their right to offer free, prior and informed consent whenever their rights may be affected by projects carried out in their traditional territories constitutes a form of discrimination.’²⁸⁴ The Committee found Sweden’s reasoning to be misguided, and that it had not complied with its international obligations to protect the Vapsten Sami reindeer herding community against racial discrimination by adequately or effectively consulting the community in the granting of the concessions.²⁸⁵ It affirmed that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired, and ‘the close ties of Indigenous peoples to the land must be recognized and understood as the fundamental basis of their cultures, spiritual life, integrity and economic survival.’²⁸⁶ For Indigenous peoples, land rights are not a matter of mere possession, but a prerequisite to their right to life and to ‘prevent their extinction as a people’. The Committee upheld a violation of Article 5(d)(v).

The decision articulated what the Committee termed a ‘human rights-based approach of free, prior and informed consent as a norm stemming from the prohibition of racial discrimination, which is the main underlying cause of most discrimination suffered by Indigenous peoples.’²⁸⁷ As Cathal Doyle observes, the decision ‘grounds the right to give or withhold free prior and informed consent in the principle of non-discrimination’.²⁸⁸ The Committee also noted that the duty to consult in the context of FPIC is the responsibility of the State and cannot be delegated without supervision to a private company, as Sweden had done.²⁸⁹ The remedy was similarly far-reaching. The Committee specifically recommended ‘effectively revising the mining concessions after an adequate process of free, prior and informed consent’.²⁹⁰ It then called for Sweden to ‘amend its legislation to reflect the status of the Sami as Indigenous people in national legislation regarding land and resources and to enshrine the international standard of free, prior and informed consent’,²⁹¹ with this latter recommendation having potential implications for Sami groups beyond the parameters of the case.

²⁵⁴ UN Doc. CCPR/C/33/D/197/1985 (1988).
²⁵⁵ UN Doc. CCPR/C/38/D/167/1984 (1990).
²⁵⁶ UN Doc. CCPR/C/52/D/511/1992 (1994).
²⁵⁷ UN Doc. CCPR/C/58/D/671/1995 (1996).
²⁵⁸ Martin Scheinen, ‘Indigenous Peoples’ Land Rights Under the International Covenant on Civil and Political Rights’ Aboriginal Policy Research Consortium International (2004) 195 <https://ir.lib.uwo.ca/cgi/viewcontent.cgi?params=/context/aprci/article/1249/&path_info=ind_peoples_land_rights.pdf>
²⁵⁹ Ibid.
²⁶⁰ Ibid, citing Ilmari Lansman et al v. Finland (1994). The paragraph reads in full: ‘Against this background, the Committee concludes that quarrying on the slopes of Mt. Riutusvaara, in the amount that has already taken place, does not constitute a denial of the authors’ right, under article 27, to enjoy their own culture. It notes in particular that the interests of the Muotkatunturi Herdsmens’ Committee and of the authors were considered during the proceedings leading to the delivery of the quarrying permit, that the authors were consulted during the proceedings, and that reindeer herding in the area does not appear to have been adversely affected by such quarrying as has occurred.’ (para 9.6)
²⁶¹ UN Doc. CCPR/C/70/D/547/1993 (2000).
²⁶² Ibid para 9.8.
²⁶³ UN Doc. CCPR/C/95/D/1457/2006 (2009).
²⁶⁴ Ibid para 7.6.
²⁶⁵ Katja Gocke, ‘The Case of Angela Poma Poma v Peru: The Concept of Free, Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights’ (2010) 14 Max Planck Yearbook of United Nations Law 337-370, at 347 et seqq.
²⁶⁶ Ibid 349.
²⁶⁷ Ibid 355.
²⁶⁸ Apirana Mahuika et al v New Zealand para 9.2.
²⁶⁹ UN Doc. CCPR/C/137/D/3585/2019 (2024).
²⁷⁰ Ibid para 3.4.
²⁷¹ Ibid para 8.7.
²⁷² Ibid para 8.3 n 28.
²⁷³ Ibid para 8.5.
²⁷⁴ Ibid para 8.14.
²⁷⁵ Ibid par 7.3.
²⁷⁶ Ibid para 8.3.
²⁷⁷ UN Doc. CERD/C/102/D/54/2013 (2020).
²⁷⁸ Ibid paras 1.1 and 1.2.
²⁷⁹ Ibid para 2.10.
²⁸⁰ Ibid para 2.12.
²⁸¹ Ibid.
²⁸² CERD General Recommendation 23, ‘Indigenous Peoples’ UN Doc. A/52/18, Annex V at 122 (1997) para 4(d).
²⁸³ OHCHR, ‘Consultation and Free, Prior and Informed Consent (FPIC)’ <https://www.ohchr.org/en/indigenous-peoples/consultation-and-free-prior-and-informed-consent-fpic> citing ‘Study of the Expert Mechanism on the Rights of Indigenous Peoples’ UN Doc. A/HRC/39/62 (2018) paras 3 and 6.
²⁸⁴ Ibid para 6.7.
²⁸⁵ Ibid para 6.12.
²⁸⁶ Ibid para 6.6.
²⁸⁷ Ibid para 6.16.
²⁸⁸ Cathal Doyle, ‘Agren v Sweden’ International Human Rights Reports (University of Nottingham, 2021) <https://www.nottingham.ac.uk/hrlc/publications/international-human-rights-reports/index.aspx> Doyle writes that the decision ‘provides important insights into the implications of the principle of non-discrimination for indigenous peoples’ right to land and territories and in particular their right to give or withhold free prior and informed consent, a right which CERD has been instrumental in incorporating into the corpus of international human rights law’.
²⁸⁹ Agren v Sweden, para 6.17.
²⁹⁰ Ibid para 8.
²⁹¹ Ibid.