On 16 June 2026, the UN Human Rights Council (HRC) Working Group on Business and Human Rights published its “Guidance on the right of Indigenous Peoples to free, prior and informed consent (FPIC) in the context of business activities.” The Guidance broadly affirms Indigenous Peoples’ inherent right to self-determination, their rights over lands and resources, and businesses’ obligation to engage in good faith. Paragraph 11 is the exception. It provides that “the requirement to seek and obtain FPIC should not be interpreted as conferring a static or unconditional right to permanently block projects.”

This is at odds with Indigenous Peoples’ right to self-determination, which has been recognised by the Inter-American Court of Human Rights and UN treaty bodies. In East Timor (Portugal v. Australia) (1995), the ICJ called self-determination “one of the essential principles of contemporary international law,” carrying erga omnes status—an obligation every State owes the international community, not a benefit granted and later revoked. FPIC derives from Indigenous Peoples’ right to self-determination and loses its transformative function when reduced to an indefinitely revisitable consultation process rather than a substantive power to refuse projects affecting Indigenous lands and resources.

This analysis synthesises my oral statement to the Working Group on behalf of Just Atonement Inc. at the HRC’s 62nd session on 24 June 2026, and a subsequent written submission. It argues that paragraph 11 cannot be reconciled with the Guidance’s own framework—it stands in direct conflict with paragraphs 10, 17 and 54, which the Working Group would have to disown for paragraph 11 to hold—or with broader international law, and that it prolongs a harmful limitation identified by business and human rights scholarship.

The Working Group’s then Chair, Mr. Damilola Olawuyi, responded to my oral statement at the end of the session, stating that paragraph 11 was meant to frame FPIC “as part of the requirement to advance human rights rather than see it as an obstruction or economic sabotage,” and clarified that FPIC does not “give a right to Indigenous Peoples to perpetually block projects.” Characterising sustained refusal as requiring defence against “obstruction” or “economic sabotage” inverts the right’s burden: refusal is not a deviation requiring justification but a legitimate outcome of the consent process. Treating permanent refusal as inherently suspect reflects an outdated procedural conception of self-determination, rather than a substantive power over decisions affecting Indigenous lands. This response compounds the issue, risking severe consequences for Indigenous Peoples resisting “green colonialism” projects.

Paragraph 11 Contradicts the Guidance’s Own Framework

The clearest evidence against paragraph 11 comes from the Guidance itself. Paragraph 10 states that the case law converges towards FPIC “as requiring the possibility of withholding consent,” and paragraph 17 provides that any limitation “that undermines the substantive right of Indigenous Peoples to grant or withhold consent cannot be considered compatible with international human rights law.” The Guidance’s own recommendations confirm this: a decision not to engage “signifies that FPIC cannot be obtained,” the activity “should not proceed,” and a proponent must “accept ‘no’ as a valid outcome.” Paragraph 11’s framing of refusal as provisional, tied to “a given moment,” is irreconcilable with these provisions, most sharply with paragraph 54, which recognises that peoples in voluntary isolation may withhold FPIC outright. Paragraphs 11 and 54 cannot both be correct, and paragraph 54 tracks international jurisprudence.

Paragraph 11 Is Contradicted by the Broader Architecture of International Law

A. The UNDRIP and the ADRIP

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) treats FPIC as something to be satisfied before any business action, not an invitation to keep negotiating. Article 3 recognises the right to self-determination, by which Indigenous Peoples “freely determine their political status” and development. Article 19 requires consent before adopting measures affecting Indigenous Peoples; Article 32 requires consent prior to project approval. The American Declaration on the Rights of Indigenous Peoples (ADRIP) tracks the same structure (arts. III, VI, XXIII). The recurring use of ‘freely’ is not incidental: a right exercised only until a more powerful party outlasts it is no right at all.

B. EMRIP’s 2018 Study

The Expert Mechanism on the Rights of Indigenous Peoples’ (EMRIP) study on FPIC confirms that Indigenous Peoples are “entitled to give or withhold consent,” while cautioning that framing FPIC as a ‘veto’ is counterproductive. That caution is the most likely basis for a defence of paragraph 11, so the distinction it rests on should be stated plainly.

EMRIP’s objection is to the label, not to the entitlement. ‘Veto’ imports a unilateral and arbitrary power exercised outside any process. EMRIP urges practitioners to retire the term because it mischaracterises consent as a formal blocking device rather than an exercise of self-determination. What EMRIP does not do is qualify the entitlement itself; the same study affirms, without temporal limitation, that consent may be withheld.

Paragraph 11 inverts that structure. It borrows the vocabulary of anti-veto caution—‘static’, ‘unconditional’, ‘permanently block’—and turns it against the entitlement EMRIP affirms. The result is not a clarification of what FPIC is, but a limitation on what refusal can accomplish. A body can coherently hold both that FPIC is not a veto and that consent may be withheld indefinitely; paragraph 11 uses the first proposition to defeat the second.

Paragraph 11 is Contradicted by International Jurisprudence

Regional tribunals have applied FPIC as determinative, not provisional. The Inter-American Court, in Saramaka v. Suriname, held that a state must abstain from acts affecting Saramaka territory “unless” it obtains consent (¶ 134). In Tagaeri and Taromenane v. Ecuador, the Court affirmed the self-determination of peoples in voluntary isolation and recognised that such peoples cannot be re-consulted, a holding the Guidance cites along with Saramaka (Operative ¶ 5). The African Court, in Ogiek v. Kenya, required consultation consistent with the right to give “or withhold” consent (¶ 144). None of this jurisprudence treats persistent refusal as provisional; each treats it as the outcome the right protects, foreclosing paragraph 11’s “given moment” framing.

A related line of authority shows what happens when a tribunal does find a violation but leaves the door open to continued pressure. Although decided on cultural-rights grounds rather than as an FPIC case, Norway’s Fosen litigation illustrates what becomes of a legally vindicated refusal at the remedial stage — precisely where paragraph 11’s framing would do its work. In 2021, Norway’s Supreme Court held that two wind farms on the Fosen peninsula violated the Article 27 ICCPR cultural rights of Sámi reindeer herders, rejecting the developer’s claim that the “green shift” justified overriding those rights. Yet the turbines kept operating for years: the government took over 500 days to acknowledge the violation, and the herders were funnelled into a mediation process many Sámi representatives viewed as inadequate. The episode illustrates precisely the dynamic paragraph 11 would formalise: a legally cognisable ‘no’ treated as an opening bid the more powerful party controls.

Paragraph 11 as Harmful Weakness Identified by Business and Human Rights Scholarship

Paragraph 11 perpetuates a weakness business and human rights scholarship has identified in the field’s foundational instruments. The UN Guiding Principles, from which the Working Group’s mandate descends, rest on a weak conception of corporate accountability: a social expectation that businesses do no harm, “without binding obligations or sanctions.” Surya Deva has argued the Guiding Principles’ drafting process gave business actors disproportionate influence relative to civil society and those whose rights were at stake. TWAIL scholars press further: the language of consensus and voluntarism in these instruments obscures persistent power asymmetries, so “soft” formulations default towards accommodating the better-resourced party.

Paragraph 11 fits this pattern. It is affirmatively worded to preserve a business’s latitude to keep approaching a community after it has said no. That asymmetry reflects the dynamic Deva describes: a text produced through a process where the risk of “obstruction” to business attracted more concern than the risk of coerced consent to Indigenous Peoples. The Working Group’s own defence of paragraph 11 uses precisely that vocabulary, which is itself telling.

Indigenous Peoples, the Energy Transition, and the Stakes of Paragraph 11

Paragraph 11 is also vague, offering no standard for what counts as “permanent.” That vagueness matters amid the acceleration of mining, siting, and geoengineering projects justified by the green transition’s urgency. Indigenous Peoples and scholars increasingly describe these projects as “green colonialism,” capturing how climate urgency licenses the same extractive pressure earlier resource booms produced.

A 2022 study mapping over five thousand energy-transition mineral projects found more than half sit on or near Indigenous and peasant lands; in the United States, ninety-seven percent of nickel and eighty-nine percent of copper in US reserves are concentrated within 35 miles of Native American reservations. The SIRGE Coalition has documented mining proceeding on Indigenous lands without FPIC, describing the pattern as colonial extraction relabelled “green.” As Joan Carling put it, “the [energy] transition without the respect of Indigenous rights is another form of colonialism.”

Read against that backdrop, paragraph 11 could easily be invoked to treat sustained refusal as an obstacle to overcome through aggressive engagement, prolonged pressure, and even threats. Indigenous, environmental, and land defenders opposing extractive projects already face serious threats to their safety. Paragraph 11 could endanger defenders by giving businesses legal cover to justify continued pressure after a community refuses a project.

The alternative is instructive. In 2021, the Sámi Council rejected Harvard’s planned solar-geoengineering project over Sápmi, a legitimate exercise of self-determination which halted the project. Harvard abandoned the project in 2024 rather than continuing to press the community. Paragraph 11 would cut against precisely that kind of outcome.

Conclusion

A right to consent that cannot be permanently withheld is not a right to consent. Paragraph 11 is inconsistent with the Guidance’s own framework and the jurisprudence it relies upon. The Working Group should remove it through a corrective addendum and reaffirm that FPIC includes the right to withhold consent permanently.

The mechanism for doing so exists and this ask is procedurally modest. The corrigendum route already operates within this mandate’s own lineage: the Special Representative’s addendum to the report that introduced the Guiding Principles was corrected by A/HRC/17/31/Add.1/Corr.1, which revised the summary, paragraph 5(c) and a footnote. Corrigenda conventionally address technical errors, but special procedures also revise their own standing guidance where subsequent law and practice require it. The Working Group on Arbitrary Detention did exactly that with its revised deliberation No. 5, adopted at its eightieth session in November 2017 to replace a 1999 text that changes in international law had overtaken, and annexed to its next annual report to the Council. Neither route requires a new mandate or a further Council resolution. The Working Group could adopt a correction at one of its regular sessions and transmit it when it next reports to the Council.

This narrow correction closes a gap the Guidance is meant to foreclose. Given the pace of extractive and transition-related projects on Indigenous lands, correcting this provision is a modest step with disproportionately positive consequences.