From Consultation to Consent: Reassessing Free, Prior and Informed Consent in Nepal’s Development Projects

I. Introduction

Nepal’s commitment to the rights of Indigenous Peoples at the international level dates back to 2007. On 13 September 2007, Nepal voted in favor of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This was followed, on 14 September 2007, by the Government of Nepal’s ratification of the Indigenous and Tribal Peoples Convention, 1989 (ILO 169), which made Nepal the first South Asian country to ratify the Convention concerning Indigenous nationalities.¹ These actions signaled a strong commitment by Nepal to upholding the rights of Indigenous Peoples.² Yet, although Nepal endorsed UNDRIP and ratified ILO 169 in the same year, these commitments are yet to be implemented. The National Action Plan (NAP) created in 2009 to enforce the Convention was never put into effect, and the 2015 Constitution, while making some progress, did not fully incorporate key provisions of ILO 169 and UNDRIP.³

Ensuring conformity between national laws and international legal principles is crucial for states, particularly concerning the adoption of Free, Prior and Informed Consent (FPIC). In practice, however, Nepal’s domestic legal framework imposes no requirement for FPIC of Indigenous Peoples regarding development projects affecting their lands, territories and natural resources. Many development initiatives neglect, and thereby harm, the lands and natural resources of Indigenous Peoples because of their inadequate inclusion in decision-making processes.⁴

This article argues that Nepal’s approach to Indigenous Peoples’ rights in development has remained at consultation, not consent. This is a gap between international commitment and domestic practice that the Supreme Court’s 2025 ruling in LAHURNIP v Office of the Prime Minister et al. has exposed but not yet closed. The article proceeds in five parts. Part I sets out the introduction, Part II sets out the existing legal framework, and Part III analyzes the case of LAHURNIP v Office of the Prime Minister et al. Part IV contains a critical evaluation and analysis, and Part V offers a conclusion.

II. The Existing Legal Framework

A. Free, Prior and Informed Consent: Definition and Elements

FPIC is a principle that protects the rights of Indigenous Peoples. It has four elements, namely Free, Prior, Informed and Consent, which carry the following meanings:

1. Free means that Indigenous Peoples give their consent, or decide not to approve an activity, plan, project or policy, without coercion from any party.
2. Prior means that the decision whether to agree or not is made before the policy or activity is carried out.
3. Informed means that, before the decision-making process, the community must receive complete information in a language and form that it can easily understand. The information should be complete and objective, including the potential social, political, cultural and environmental impacts, and should tell the community about the potential benefits and losses it will experience before approval is given.
4. Consent means that a decision or agreement is reached through an open and gradual process that respects customary or local laws, collectively and with all the authorities held by the community.

The following are the principles of FPIC that need to appear in national laws in order to harmonize them with UNDRIP:

1. Self-determination (Article 3)
2. Right to land (Article 10)
3. Redress for the taking of cultural, intellectual and spiritual property (Article 11)
4. Adopting FPIC in legislative and administrative measures affecting Indigenous Peoples (Article 28)
5. Right to redress for land (Article 28)
6. Projects based on FPIC (Article 32)⁵

B. International Commitments: ILO 169 and UNDRIP

One of the key provisions of ILO 169 is Article 6, which introduces the right of Indigenous Peoples to be consulted and to participate freely at all levels of decision-making when policies and programs might affect them. The importance of this article is confirmed by the fact that the monitoring body of the Convention has described the rights to consultation and participation as its cornerstone. To appreciate the significance of this provision in relation to FPIC, one has to read it together with Article 15. That article establishes that Indigenous Peoples’ rights to the natural resources pertaining to their lands shall be specially safeguarded, and that these rights include the right to participate in the use, management and conservation of those resources. However, Article 15 also recognizes that States may retain ownership of mineral or sub-surface resources, or rights to other resources pertaining to lands. In such cases, the Convention requires governments to consult Indigenous Peoples with a view to ascertaining whether, and to what degree, their interests would be prejudiced before undertaking or permitting any program for the exploration or exploitation of such resources.

The ILO Governing Body has set a clear limit on the degree of protection, ruling out the proposition that States must obtain the consent of Indigenous Peoples before implementing a development project. Consultations should nevertheless be conducted with a view to finding “appropriate solutions in an atmosphere of mutual respect and full participation”, and Indigenous Peoples should have “a realistic chance of affecting the outcome” of the relevant process. Thus, it could be argued that ILO 169 takes a pragmatic approach to FPIC, seeking to empower Indigenous Peoples without going as far as granting them a veto.

UNDRIP fully recognizes the special attachment of Indigenous Peoples to their lands. In particular, Article 25 establishes that Indigenous Peoples have the right to maintain and strengthen their distinctive spiritual relationship with their ancestral lands. Other provisions are particularly relevant in the context of FPIC, including Article 18, on the right of Indigenous Peoples to participate in decision-making in matters that would affect their rights, and Article 26, on the right to own, use, develop and control their lands, territories and resources. However, the most important provision is Article 3, which establishes that Indigenous Peoples have the right to self-determination.

The recognition of the right to self-determination has crucial implications for FPIC. In particular, it would seem difficult to reconcile the right of Indigenous Peoples to pursue freely their economic, social and cultural development with the possibility that development projects could take place on their lands without their consent and regardless of the consequences for their cultures and lives. Similarly, the right to own, use, develop and control their lands, territories and resources under Article 26 would be deprived of its essence if Indigenous Peoples were indiscriminately denied the right to oppose unwanted projects on their lands.

With regard to FPIC, special attention should be paid to the original and final versions of Article 32. The original version established that no project affecting the lands of Indigenous Peoples could take place without FPIC. In effect, this amounted to recognizing a wide right of veto for Indigenous Peoples. In the final version, States maintained that they should not “obtain” but rather “seek” the consent of Indigenous Peoples. Such a flexible approach excludes a right of veto in relation to all matters affecting their lands. At the same time, however, it affirms that when a development project is likely to have a serious negative impact on the cultures and lives of Indigenous Peoples, States must obtain their consent before implementing it.⁶

C. Nepal’s Domestic Legal Framework

Nepal’s 2015 Constitution provides vague protections for Indigenous Peoples, including the right to autonomy, traditional knowledge, and participation in state mechanisms. Similarly, domestic law still lacks specific procedures to implement FPIC or to recognize customary land rights. Although Nepal is a State Party to ILO 169, implementation remains weak. Article 6 of the Convention requires that Indigenous Peoples be consulted “with the objective of achieving agreement or consent”. In Nepal, however, consultation is only formalistic. Many government agencies view Indigenous concerns as obstacles to progress rather than as rights to be respected.⁷

III. Judicial Response: LAHURNIP v Office of the Prime Minister⁸

A. Facts and Procedural History

The petition was filed by advocates of the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP). The petitioners were Shankar Limbu, Dinesh Kumar Ghale, Jitendra Bajracharya and Bimal Shrestha. They filed the petition against the Office of the Prime Minister and Council of Ministers, the Speaker of the Legislature-Parliament, the Ministry of Federal Affairs and Local Development, and the Nepal Law Commission.

The petitioners reviewed Nepal’s laws and found fifty-four that do not align with ILO 169 and UNDRIP. These include twenty-four of the fifty-three bills that were still being considered by Parliament. They relied directly on Article 6(1) of ILO 169 and Article 19 of UNDRIP. They sought a court order requiring that laws be created and that the pending bills be amended. They also sought an order declaring that no law or action affecting Indigenous Peoples may be taken without their FPIC, to be given through the Indigenous Peoples’ own chosen institutions.

B. Respondents’ Position

Each respondent submitted a written response. The Office of the Prime Minister stated that the country had already made amendments to its constitution, structures and policies to meet the requirements. It also stated that the order in case 065-WO-0475 had already been complied with.

The Ministry of Law, Justice and Parliamentary Affairs stated that making laws is a power belonging only to the legislature. It cited a Supreme Court decision, NKP 2070 Issue 4 Decision No. 8910, which held that courts cannot interfere in “wisdom and competency”. The Speaker’s office argued that requiring permission from one group before a law is passed would restrict the exercise of parliamentary rights. It stated that no provision in the constitution or the laws requires a group to agree before a bill is passed.

C. The Court’s Holding

Following the opinion of Justice Dr. Kumar Chudal, with Justice Sushmalata Mathema agreeing, the Court dismissed the writ on 7 February 2024. The Supreme Court stated that the state had progressively addressed the petitioners’ concerns through the National Foundation for Development of Indigenous Nationalities Act, 2058, the relevant parts of the Constitution, and the implementation of the 065-WO-0475 directive. The Court also addressed the question of whether the state needed to make more laws. It stated that this matter forms part of the state’s policy wisdom and legislative prerogative, and that it declined to enter that area, citing the separation of powers.

D. The Reasoning Behind Dismissal

The Court began by recognizing Nepal’s long-standing history of discrimination against Indigenous Peoples. It pointed to constitutional provisions, namely Articles 18(3), 42, 50, 51(b)(3), 76(9), 84(2), 176(6) and 261(1), as proof that the state had already built mechanisms for Indigenous participation into its constitutional framework. In the Court’s view, this did not support the petitioners’ request. The Court used these provisions to show that the state had already taken steps, and to establish a basis for concluding that the state’s obligations had been met progressively.

Next, the Court considered the petitioners’ argument that an earlier writ order, 065-WO-0475, had not yet been enforced, and rejected it. It cited a letter from the Judgment Execution Directorate confirming that the judgment had been carried out and the case file closed. This allowed the Court to treat the state as having already been reviewed by a court on this issue and found to be in compliance, which weakened the petitioners’ push for a new order.

After concluding that existing obligations had been implemented progressively, the Court changed the focus. It redefined the petitioners’ claim for new laws and consent-based lawmaking as a question about whether more legislation would be enough. The Court stated that this question falls under “Policy Wisdom and Legislative Prerogative”. That means it is something for the legislature to decide, not the Court.

This was a separation-of-powers move, not a rights-based decision. The Court did not say that FPIC is not a right in Nepal. Instead, it said that a writ court cannot force Parliament to pass a law, even if the right is important. The Court’s role does not extend to ordering the legislature how to act, no matter how strong the underlying rights may be.

E. The Directive Order

Despite the dismissal, the Court issued a directive order. It told the Legislature-Parliament Secretariat and the Ministry of Federal Affairs and Local Development to create laws and policies at all levels of government. These laws and policies must follow the “spirit and intent” of ILO 169 and UNDRIP. The Court also directed them to pass or amend pending bills accordingly.

The petitioners’ own claim, which relied directly on the consent standard in Article 19 of UNDRIP, was dismissed, and the Court responded only with a non-binding directive. This shows clearly that Nepal’s judiciary, when directly faced with the issue, continues to treat FPIC as a legislative aspiration. In other words, it does not treat FPIC as an enforceable right.

IV. Critical Evaluation and Analysis

Read carefully, the Court’s decision in LAHURNIP v Office of the Prime Minister et al. was about the separation of powers, not about deciding the right itself. The Court had already found that the state was progressively fulfilling its existing responsibilities. So, when the petitioners asked for new laws and consent-based decision-making, the Court stated that this was a matter of policy judgment and legislative authority, beyond what it could decide under its writ jurisdiction. It did not say that Indigenous Peoples have no right to consent under Nepal’s law; it simply chose not to answer that question.

LAHURNIP’s own chairperson called the ruling a decision that “now legally binds” all levels of government to implement FPIC. Other activists who supported the case described it as a turning point confirming the rights of Indigenous Peoples in decisions that affect them. Yet, even though the case was dismissed, the Court made it clear that further legislative steps were not within its power to order. The gap between what advocates claimed and what the Court actually decided is visible here. It suggests that some supporters of the case may be presenting the issue as if it were fully settled. If the Court’s real holding was avoidant, we should see the same lack of enforcement in practice.

That is exactly what happened with the Pathibhara/Mukkumlung Cable Car Project in Taplejung district. The project was granted to the IME Group without the consent of the Indigenous Yakthung (Limbu) people. Despite the LAHURNIP ruling being released in June 2025, the project went ahead and even expanded, after 10,000 trees were cut down under armed police protection. The developer claims the project was approved “with the consent of the community”, whereas local leaders say they were never consulted. If the ruling in LAHURNIP v Office of the Prime Minister et al. had any binding force, this project should have been stopped. Its continuation suggests that the Court’s holding is being read narrowly and has had little practical effect.

Even projects that are praised as success stories are now being questioned. Take Upper Trishuli-1, once seen as a flagship project in South Asia, funded by foreign investment, that followed FPIC. It was said that a developer-led process secured the agreement of ten villages and 6,000 people through an elected community council. A report from a civil society group has now raised doubts about whether this process actually happened or was merely for show. The report claims that FPIC procedures in large hydropower projects, including Upper Trishuli-1, were either completely ignored or turned into performative consultations. If even the best-documented example of compliance in Nepal is now being seriously doubted, then the gap between consultation and real agreement is much bigger than clear violations alone suggest. It affects cases that were once promoted as models.

Where FPIC works well in practice, its power comes not from national law but from institutions. For instance, WWF Nepal has made FPIC a strict requirement for its programs. The organization will not support any initiative unless the affected Indigenous communities consent. The fact that the strongest FPIC standard operating in Nepal today comes from the policies of a private international NGO, and not from domestic legislation, proves how weak the legal foundation remains.

V. Conclusion

This article has followed Nepal’s obligations under FPIC from international promises to national laws and then to court decisions. It shows that when the Supreme Court was directly asked to rule on whether FPIC applies to development projects affecting Indigenous Peoples, it did not answer the legal question. Instead, it stated that deciding whether consent is needed is not a matter for the courts but for lawmakers. The Court treated it as a question of policy and legislative power, not a right to be decided by judges.

The Pathibhara/Mukkumlung Cable Car Project and the controversy at Upper Trishuli-1 make this clear. Without a binding law, whether true consent is sought depends on how each project is handled. It becomes a matter of practice and self-reporting rather than a legal requirement, and developers can falsely claim to have consulted Indigenous Peoples because there is no legal standard to check whether that consultation actually took place.

To put it simply, the main point of this article is that Nepal’s approach to Indigenous Peoples’ rights in development has been based on consultation, not on actual consent. The judiciary has not closed this gap; it has left the responsibility with the legislature. To fix this, Nepal must do what the Court itself said should be done: pass laws.

First, Nepal should ensure that Indigenous Peoples’ rights to self-determination, FPIC, custodianship of ancestral lands, territories and resources, customary laws, and all other collective and individual rights are fully in line with ILO 169 and UNDRIP, as directed by the Supreme Court of Nepal. The law should define when an objection by Indigenous Peoples can legally stop a project, not just slow it down.

Second, the National Foundation for Development of Indigenous Nationalities already has guidance on FPIC. That guidance should be made into binding regulation, not soft advice. At present, its strength depends on organizations such as WWF Nepal, which apply it only within their own projects, and that is insufficient on its own.

Third, Nepal should establish mechanisms, processes and protocols for FPIC, along with a body to verify whether consent was truly obtained. This would help test claims in cases like the Pathibhara/Mukkumlung Cable Car Project and Upper Trishuli-1, where developers say Indigenous Peoples have been consulted while the communities deny it. Until Nepal passes laws like these, its commitment to Indigenous Peoples’ rights will remain just words. It will be about consultation, not consent, both in law and in reality.

Reference(S):

Table of Cases

LAHURNIP v Office of the Prime Minister et al. (2025) 074-WO-0053 (Supreme Court of Nepal)

Legislation

International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169)

United Nations Declaration on the Rights of Indigenous Peoples, 2007

Secondary Sources

Dev Kumar Sunuwar, ‘Historic Victory: Nepal’s Supreme Court Mandates Nationwide Implementation of Treaties for Indigenous Peoples’ Rights’ (2025)

Eduard Wojczynski, ‘Using Free, Prior and Informed Consent to build trust with indigenous communities in Nepal’ (International Hydropower Association 2026)

Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead’ (The City Law School, City University, London)

Pasang D. Sherpa and Tunga B. Rai, ‘Experience of Nepali Indigenous People on Free, Prior and Informed Consent (FPIC)’ (2013) 11(2) Journal of Forest and Livelihood

Retno Kusniati, ‘Free, Prior and Informed Consent Principles as Indigenous Peoples’ Right: Soft Law or Hard Law?’ (2025) Jambe Law Journal

Suveksha Panta, ‘Balancing Development and Dignity: FPIC, Environment, and Indigenous Rights in Nepal’ (2025)

Footnote(S):

¹ Dev Kumar Sunuwar, ‘Nepal made good progress but not fully implemented ILO Convention no. 169’.

² Dev Kumar Sunuwar, ‘Historic Victory: Nepal’s Supreme Court Mandates Nationwide Implementation of Treaties from Indigenous Peoples’ Rights’ (2025).

³ KIOS Foundation, ‘Storis of Change: Legal Victories for Indigenous Voices in Nepal’ (2025) https://kios.fi/en/2025/07/stories-of-change-legal-victories-for-indigenous-voices-in-nepal/ accessed on 5 September 2026.

⁴ Retno Kusniati, ‘Free, Prior, and Informed Consent Principles as Indigenous Peoples’ Right: Soft Law or Hard Law?’, (2024) Jambe Law Journal.

⁵ Ibid 187.

⁶ Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Right of Indigenous Peoples: Developments and Challenges Ahead’ The City Law School, City University, London.

⁷ Suveksha Panta, ‘Balancing Development and Dignity: FPIC, Environment, and Indigenous Rights in Nepal’ (2025)

⁸ LAHURNIP v Office of the Prime Minister et al. (2025) 074-WO-0053 (Supreme Court of Nepal).