20 - Innovative Contractual Remedies with Indigenous Peoples

Summary

This chapter identifies the rise of a new paradigm of contracts within the modern global political economy: direct private contracts negotiated between companies and indigenous peoples (IPs) with a special socio-economic and cultural relationship to land.The above clause is taken from one such contract. These contracts are unique as IPs are one of the main negotiating parties and benefits for them are viewed as the main focus of negotiation. The contract cited above is special as it goes further than community development or social impact agreements, in order to translate indigenous rights to land by way of contract. These contracts effectively recognise indigenous rights on land and various forms of authority over said land, in addition, or in the absence of any formal title. They expose an emerging practice of formalizing free, prior and informed consent (FPIC) processes which may result (or not) in some procedural and substantive benefits for IPs. Consequently, we call this paradigm a contractualisation of indigenous land rights.