EMRIP11: Statement of the Asia Indigenous Peoples Pact and Asia Indigenous Peoples Caucus on Agenda 4: Study and advice on free, prior and informed consent

Asia Caucus statement for Agenda Item no. 4: study and advice on FPIC of EMRIP11 highlights Asia Indigenous Peoples Pact’s (AIPP) submission to the study. AIPP’s submission pointed out some of the prevailing major misconceptions on FPIC, which are related to particular challenges.  Among them are:

• FPIC is understood and promoted in isolation and separate from the general recognition of collective rights of indigenous peoples, particularly on their right to self-determination.
• FPIC is interchanged with the general idea of the need for consultation or right to participation.
• FPIC is taken literally from what the letters stand for. 
• FPIC is understood to have a universal method applicable to all indigenous peoples.
• FPIC is most often considered, interrogated and raised in the context of development aggression (i.e. mining, agribusiness, hydropower). But less so in the context of other social development programmes, e.g. health, education, poverty alleviation scheme, etc.

Further, it pointed out the following:

• Paragraph 2 of the Draft Study mentions that the Study is neither definitive nor exhaustive but aims to contribute to the body of existing guidelines.  However, we believe the EMRIP Study will have strong influence as reference to FPIC implementation by States and beyond.  As such, we would like to draw the attention of Members of the EMRIP and request them to review the misconceptions elaborated in our submission.  We strongly recommend for them to provide any needed clarifications on these misconceptions in their final version of the Study.  In paragraph 29 and 30 of the Draft Study re operationalisation of FPIC, it is likely that the points will reiterate the focus of FPIC mostly in the context of development aggression.

Social development programmes are often designed and implemented without consideration of FPIC, thereby missing the distinct and specific conditions of indigenous peoples.  These programmes often have impact on their customary laws, traditions and customs, including cultural, intellectual, religious and spiritual property to which FPIC should be obtained (UNDRIP, Article 11, para 2).  Further, this falls under obtaining FPIC before adopting and implementing legislative or administrative measures that may affect them (UNDRIP, Article 19).   Blanket approach of these social development programmes fails to respond to the specific situation of indigenous peoples[1] and provide them positive and effective impact.[2]  As a result, they remain to be furthest behind and trapped in the cycle of poverty and marginalisation.  Although we do recognise that 1^st bullet point of Annex no. 11 covers the foundation of this concern but we do hope that that can be elaborated in the Draft Study, particularly in the section of “Operationalisation of FPIC” (no. 3 Chapter III of the Draft Study).

• Also, the 6^th bullet point of Annex no. 11 mentions “States should ensure that consent is always the objective of consultations…” We request the Members of EMRIP to explain this point further as we believe this should not refer to disregard the collective decision of indigenous peoples to withhold their consent and put a particular development initiative to an end.
• Furthermore, with regards to the 8^th bullet point, we hope for the Members of EMRIP to consider reviewing the case studies of community protocols of indigenous peoples in Malaysia when finalising the Draft provided through the link footnoted in this Statement.[3]

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[1] Mohna Ansari, Commissioner of National Human Rights Commission of Nepal, raised this problem of blanket approach to social development programmes in AIPP’s side-event in EMRIP10 on “Exploring the roles of businesses and access to financial services for the rights of indigenous peoples in Asia.” (See EMRIP10 notes here: https://drive.google.com/file/d/17gjMh6tdtihGui1YioQuBxz6S5IcQck7/view?usp=sharing

[2]See the participatory review of the Philippines’ flagship poverty alleviation programme, Pantawid Pamilyang Pilipino Programme – Conditional Cash Transfer (4Ps – CCT) regarding its (in)effectiveness to provide positive and sustainable impact to indigenous peoples.  See review: https://drive.google.com/file/d/1F_ok9NB5XmKXOQiojiRzM_VWyNKvpljr/view?usp=sharing

[3] See community protocols case studies in Malaysia thru this link: https://drive.google.com/drive/folders/1kOJh9h-WPFFmHFu4_9xhGKcJRenp2eSW?usp=sharing

Click here to download full statement.