Submission of AIPP for the 11th session of EMRIP

Submission of Asia Indigenous Peoples Pact (AIPP)
for the 11^th Session of the Expert Mechanism on Rights of Indigenous Peoples’ (EMRIP11) Study on Free, Prior and Informed Consent (FPIC)

Revisiting the Meaning of FPIC

1. Free, Prior and Informed Consent (FPIC) is a right and a process that indigenous peoples observe to conduct their own collective decision-making on matters affecting their lives.[1] It is linked to indigenous communities’ own political structure and governance, including their traditional justice systems.  It is founded on indigenous peoples right to self-determination.  By virtue of this right, indigenous peoples should freely determine their political status and pursue their economic, social and cultural development, including having the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.[2]
2. Their right to self-determination is an inherent right of indigenous peoples which is derived from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their collective rights to their lands, territories and resources (LTR).  By virtue of this right, FPIC is an inherent right and forms part of this right that enables them to engage and be consulted on issues and interventions that will impact their LTR, including their livelihood, health and well-being, territorial integrity, collective identity, culture, social cohesion and the future of their next generation.
3. Respecting, protecting and promoting indigenous peoples’ right to FPIC is an inherent concept tied to their rights to LTR and self-determination. It cannot be separated from these other bundle of rights; failing to do so would result in violation of their rights as peoples having their own distinct culture, tradition and way of life.  Further, it should also be understood that the principle of indigenous peoples inherent rights to LTR is tied to their existence and occupation in, and utilization of their LTR prior to colonization and creation of nation-states.  “FPIC has its origins in the principle of native title from common law, i.e. that native people have rights to their lands based on their customary law and sustained connections with the land.  [I]nternational human rights law and jurisprudence affirms that indigenous peoples’ customary land rights are not dependent on any ‘grant’ by the nation-state, but are pre-existing and inherent rights grounded in traditional occupation and use of the land.”[3]
4. As such, FPIC, is not a new concept for indigenous peoples communities. It is a process and collective mechanism that has been historically part of their self-government particularly to their political affairs and LTR, which is related to their social and economic stability.  However, indigenous peoples should not be limited to express their consent exclusively through procedures and institutions that are formally or entirely based on customary law and practice, such as statutory councils or tribal governments.[4]  This should be particularly noted to indigenous peoples whose customary institutions were not preserved as a result of historical processes of dispossession, discrimination and forced assimilation.  This situation is particularly true to indigenous communities residing in countries that do not recognize indigenous peoples rights.
5. With the recognition of their rights, indigenous peoples should retain their right to FPIC, regardless of the nature of the process. They should retain the right to refuse consent or to withhold consent until certain conditions are met.  But, in any circumstances, sincere consultation must be conducted and consent obtained without coercion and, though not to be taken literally (see paragraph 17), obtained prior to the approval of permits and commencement of any activities or initiatives that will affect their lives, way of living and future generation.
6. Indigenous communities have both individual and collective rights and the process of obtaining consent within the community is built into their collective decision-making process with the aim of achieving consensus. FPIC is a process that requires the fulfilment of transparent and accountable process of dialogue and negotiation that fully recognizes and respects internal decision-making processes of indigenous communities. FPIC relates to the external dimension of their right to self-determination in the context of negotiations or making agreements with external entities or agencies. FPIC is received from the collective and cannot be individualized.

FPIC in legal and policy frameworks

7. The recognition of “indigenous rights”, its uniqueness and distinctiveness from the majority population has gained traction at international level fairly recently. The earliest international document to support this was the 1957 Convention on Indigenous and Tribal Populations of the International Labor Organization (ILO), commonly referred to as Convention 107.   That was updated with the enforcement of the 1989 Convention more commonly known as ILO 169.
8. ILO 169 indicates that relocation of indigenous peoples requires “free and informed consent,” and provides for indigenous peoples “right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions, and spiritual wellbeing,” and that “consultations” relating to the application of the convention be undertaken “in good faith and . . . with the objective of achieving agreement or consent the proposed measures.”[5]
9. In 2007, the UN General Assembly adopted the more comprehensive UN Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP expressly calls for “free, prior, and informed consent” in cases of (1) relocation of indigenous peoples away from their traditional lands; (2) deprivation of indigenous peoples’ “cultural, intellectual, religious, and spiritual property;” (3) passage of “legislative of administrative measures” that may affect indigenous peoples; (4) disposal of hazardous waste within indigenous territories; and (5) “any project affecting [indigenous peoples’] lands or territories and other resources, particularly in connection with the development, utilization, or exploitation of mineral, water, or other resources.”[6]
10. But unlike ILO 169, UNDRIP is not a binding convention and has no direct enforcement mechanism. Regardless of this limitation, however, the principles of UNDRIP, including FPIC is implicit in other major human rights treaties and declarations, such as the right to self-determination and the prohibition on racial discrimination proclaimed in the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination on All Forms of Racial Discrimination (ICERD).[7]
11. Similarly, in the context of development[8] and business and human rights, there have been increase in recognising the rights of indigenous peoples and developing or adopting guidelines on FPIC. Within the context of business and human rights, a number of investment bodies and business industries have developed their safeguard guidelines/policies that include respect of indigenous peoples’ rights, especially their right to FPIC as part of its “social license to operate.”  Among them are the European Bank for Reconstruction and Development (EBRD), Asian Development Bank (ADB), World Bank, Equator Principle Banks and European Union Policy on Indigenous Peoples, among others.[9]
12. Also, some countries, like the Philippines, India, and Cambodia, in Asia, has national legal framework that pertains to the recognition of the individual and collective rights of indigenous peoples, including FPIC.[10]
13. However, despite the increasing available instruments and mechanisms that acknowledge right to FPIC of indigenous peoples, its implementation remains elusive.

FPIC Implementation: Misconceptions and Challenges

14. It has been established that FPIC is deemed among the necessary processes should any development initiative is to provide a sustainable and meaningful positive impacts to indigenous peoples. But such intentions fail due to the following major misconceptions of FPIC, which are related to particular challenges:
15. FPIC is understood and promoted in isolation and separate from the general recognition of collective rights of indigenous peoples, particularly of their right to self-determination. This is related to the issue of lack of legal recognition of indigenous peoples with distinct culture, tradition and way of life, as indicated in the UNDRIP.  Without the cognizance of indigenous peoples’ right to self-determination and its relation to their right to FPIC, FPIC can pass off as a one-time activity, if it happens at all (see paragraph 16).  Furthermore, this increases the possibility of FPIC being corrupted wherein representatives of communities are identified not through their own institutions and collective decision-making processes.
16. FPIC is interchanged with the general idea of the need for consultation or right to participation. It is accepted that indigenous peoples have their own distinctiveness in terms of their identity, occupation of their lands and territories and relationship to their LTR.  This entitles them the right to self-determination, which is the foundation of their right to FPIC.  As such, participation and/or consultation is a right for all but, within the context of indigenous peoples, FPIC cannot be equated with general participation or consultation.  Meaningful participation and consultation should form part of the process of obtaining FPIC but cannot be reduced to it.  FPIC with regard to indigenous peoples should be in accordance with their right to self-determination.  This misconception of interchanging consultation/participation to FPIC is particular in environmental impact assessments (EIA), which are required in most development aggression related-projects (i.e. mining, hydropower, agribusiness, etc.) and, which States have often included as part of their legal framework for businesses to acquire permit to operate.  EIA processes include consultation that does not necessarily equate to FPIC.  More often than not, in such cases, FPIC, if it happens at all, is reduced to a one-off community gathering and acquisition of a community’s consent that is akin to signing an attendance sheet.   It is conducted as part of a checklist that is required to acquire a permit to begin or expand a certain development initiative.
17. FPIC is taken literally from what the letters stand for, e. if it is conducted free of coercion, prior to the project and provision of basic information about a certain development initiative is present, it passes off as “conducting FPIC.” This literal understanding of FPIC misses the fundamental principle of right to FPIC and disregards the required due process inherent in it.  Further, most development aggression-related projects, particularly mining, have already been in operation even as far back as the colonised period of a particular nation-state, where the concept of FPIC or any right for participation was non-existent.  Within this context, FPIC should still be conducted and any agreement between governments, development institution (e.g. business companies, financial institutions), indigenous peoples, and other relevant stakeholders as a result from observing the FPIC process must be followed through, including the possibility of putting a particular development initiative to an end.

18. FPIC is understood to have a universal method applicable to all indigenous peoples. This misconception is often rooted on the lack of proper understanding of the foundations of FPIC and structures of indigenous peoples’ societies.  Each indigenous peoples community has a particular and specific political structure and governance and legal system.  Each has its own process of arriving at a collective decision.  This specificity and uniqueness make FPIC particularly challenging to businesses as it would mean allocating ample amount of time, human and financial resources; none of which businesses often willingly provide without certainty of profiting from what they have allocated.[11]
19. FPIC is most often considered, interrogated and raised in the context of development aggression. But less so in the context of other social development programmes, e.g. education, health, poverty alleviation schemes etc.  Such 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 laws, traditions and customs, including cultural, intellectual, religious and spiritual property to which FPIC should be obtained.[12]  Further, this falls under obtaining FPIC before adopting and implementing legislative or administrative measures that may affect them as per UNDRIP.[13]  Blanket approach of these social development programmes fails to respond to the specific situation of indigenous[14] and provide them positive and effective impact.[15]  As a result, they remain to be furthest behind and trapped in the cycle of poverty and marginalisation.

Recommendations

20. Despite FPIC gaining recognition and support from States, businesses and other development actors, its operationalisation remains elusive. Capturing its foundations rooted in indigenous peoples’ legal recognition as peoples and recognition of their collective rights to self-determination and LTR has been challenging for many institutions hoping to implement FPIC even with those of sincerest intentions.  But it is guaranteed that without proper implementation of FPIC violates indigenous peoples rights and often leads to detrimental, irreparable damage to their lives.  We then urge the States the following recommendations:

• States must implement its international human rights obligation and legislate national law on FPIC in cognizance of the its obligation to protect and promote the rights of indigenous peoples through legal recognition.
• Support constructive multi-stakeholder forums among States, indigenous organisations, CSOs and corporations to enhance awareness of FPIC and sharpen the understanding of its objectives and foundations and build capacity for its implementation.
• States should develop, in conjunction with indigenous peoples, assistance programmes and effective mechanism, including budget allocation, for the effective implementation of FPIC.
• States should review and address the conflicts emerging from development aggression, including social development programmes that have caused damage to their culture, tradition and customs. It should provide restitution and redress to indigenous peoples affected without proper implementation of FPIC.

21. Similarly, we urge the private sectors the following recommendations.

• IFIs and businesses should ensure that their safeguards and policies are in accordance with international human rights standards relating to FPIC and incorporate FPIC principles into rightsholders and stakeholders’ engagement management plans and risk management approach.
• Conduct due diligence and map national and international laws and regulations related to FPIC and leverage States to legislate FPIC laws in pursuit of a commercially stable investment environment.
• IFIs and businesses should ensure that due process regarding FPIC is followed in the implementation of any projects in indigenous lands and territories, including other projects that would have detrimental effects to their cultural, intellectual, religious and spiritual property.
• Corporations should respect the FPIC process to be defined and managed by the indigenous peoples authorities and communities whose territories and futures are impacted by proposed projects. FPIC protocols or policies defined by indigenous peoples should be respected.
• FPIC process must be broad based and include all indigenous peoples and communities whose rights and environment are impacted. Impact areas have to be based on the social, cultural and spiritual links to territories as well as the direct physical impact area.

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[1] https://aippnet.org/wp-content/uploads/2014/11/FPIC_Manual-Small.pdf
[2] Article 3 and 4, UNDRIP. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
[3] McInnes, et. al. 2017. Free, prior and informed consent: how to rectify the devastating consequences of harmful mining for indigenous peoples.’ Perspectives in Ecology and Conservation (15), pp. 152-160. https://www.sciencedirect.com/science/article/pii/S167900731730004X
[4] MacKay, F. 2010.  Indigenous Peoples and International Financial Institutions in International Financial Institutions and International Law, Bradlow and Hunter (Eds.), pp. 287-317; See also, FAO’s (2014) Respecting Free, Prior and Informed Consent: Practical guide for governments, companies, NGOs, indigenous peoples, and local communities in relation to land acquisition, http://www.fao.org/3/a-i3496e.pdf
[5] Articles 2, 6, 16, ILO Convention 169.  http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169
[6] Articles 10, 11, 19, 28, and 29, UNDRIP. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
[7] http://veracityworldwide.com/wp-content/uploads/2015/05/Ground-Rules—–Cultivating-Investments-Through-Free-Prior-and-Informed-Consent.pdf
[8] See FAO’s Manual for Project Practitioners on Free, Prior and Informed Consent: an indigenous peoples’ right and a good practice for local communities, http://www.fao.org/3/a-i6190e.pdf .  This manual has been jointly prepared by The Food and Agriculture Organization of the United Nations (FAO); Action Against Hunger (ACF); Action Aid (AA); International Federation of Red Cross and Red Crescent Societies (IFRC); and World Vision International (WVI). It also received inputs from Deutsche Gesellschaft für Internationale Zusammenarbeit (GiZ) and Agencia Española de Cooperación Internacional para el Desarrollo (AECID); See also: Oxfam’s (2010) Guide to Free, Prior and Informed Consent, https://www.culturalsurvival.org/sites/default/files/guidetofreepriorinformedconsent_0.pdf
[9] See AIPP’s (2014) Training Manual for Indigenous Peoples on Free, Prior and Informed Consent (FPIC), pp. 59-66. https://aippnet.org/wp-content/uploads/2014/11/FPIC_Manual-Small.pdf; See also, MacKay, F. 2010.  Indigenous Peoples and International Financial Institutions in International Financial Institutions and International Law, Bradlow and Hunter (Eds.), pp. 287-317.
[10] Indigenous Peoples Rights Act (IPRA) of 1997 (Philippines); Forest Rights Act, 2006 (India), Land Law of 2001 and Forest Law of 2002 (Cambodia).
[11] See Lair and Smith. (2010) Implementing a Corporate Free, Prior and Informed Consent: Benefits and Challenges, https://bit.ly/2m3ZcvG; see also: Engaging Communities in Extractive and Infrastructure Projects of World Resources Institute, http://pdf.wri.org/breaking_ground_engaging_communities.pdf
[12] UNDRIP, Article 11, para 2.
[13] UNDRIP, Article 19.
[14] 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
[15]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

PDF file can be downloaded here: Submission of AIPP for the 11th Session of EMRIP