Dams and Water and Indigenous Peoples
- Published on Wednesday, 02 March 2011 13:40
International: Free, Prior And Informed Consent - Making FPIC Work For Forests And Peoples
Marcus Colchester, 2010
The shorthand phrase ‘free, prior and informed consent,’ and the acronym FPIC, refers to the right of indigenous peoples to give or withhold their free, prior and informed consent to proposed measures that will affect them. The right is affirmed in the UN Declaration on the Rights of Indigenous Peoples and in the jurisprudence of the international human rights treaty bodies including the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights.
While the right itself is clearly affirmed, the practicalities for non-State parties to adhere to it are less clear and are to be the focus of a new dialogue stream of The Forests Dialogue (TFD). Agreed procedures for the application of the principle of FPIC are still evolving and in any case should vary according to legal and customary norms. Whereas in some countries, legal mechanisms for the recognition of indigenous rights are well developed in others there is a lack of clarity about the extent of the areas over which the right to FPIC should be exercised, owing to a lack of precision about which areas are subject to indigenous rights and / or because countries have plural legal regimes. The forthcoming TFD dialogue stream will aim to develop answers to such challenges.
FPIC has already emerged as a core theme in several of TFD’s prior dialogue streams. The issue first came to the fore in TFD’s dialogue stream on Intensively Managed Planted Forests, which in reviewing experiences in Indonesia, China and Brazil found that plantations often expand onto the customary lands of indigenous peoples’ and local communities. Due to a lack of statutory recognition of these peoples’ rights, serious land conflicts have become common. The multi-stakeholder dialogue stream concluded that companies should recognise customary rights in land and ensure that plantations do not expand onto such peoples’ customary lands without the free, prior and informed consent of the customary owners.
When I think of self-determination, I think also of hunting, fishing and trapping. I think of the land, of the water, the trees, and the animals. I think of the land we have lost. I think of all the land stolen from our people. I think of hunger and people destroying the land. I think of the dispossession of our peoples of their land. … The end result is too often identical: we indigenous peoples are being denied our own means of subsistence. … We cannot give up our right to our own means of subsistence or to the necessities of life itself.… In particular, our right to selfdetermination contains the essentials of life—the resources of the earth and the freedom to continue to develop and interact as societies and peoples.
One outcome of this dialogue was that TFD commissioned a review of company best practice to assess what forestry companies were actually doing to resolve conflicts, particularly over land. FPIC emerged from the study as an acknowledged ‘best practice’ that companies should use to avoid conflicts. Moreover, the study found, the rights-based negotiation approach required to respect FPIC, when applied retrospectively, can also help resolve existing land conflicts by allowing renegotiations and the settlement of disputes.
During more recent TFD dialogues, consensus has likewise built that respect for the right to FPIC is crucial for effectiveness in Reducing Emissions from Deforestation and Forest Degradation (REDD). The principle was highlighted in the TFD’s Statement on Forests and Climate Change, which set out a broadly shared view of how forests should be incorporated into climate mitigation practices. The ensuing dialogue stream on REDD financing stressed the importance of safeguarding indigenous peoples’ rights and adhering to the principle of FPIC. Likewise FPIC has emerged as a key principle in providing an effective framework for those Investing in Locally Controlled Forests.
So far, so good. But given that recognition of the right to FPIC is most vital when statutory law and forest governance is weak, much more guidance is needed on how to respect this right in practice. In recognition of this gap, TFD has decided to go ahead with a further dialogue stream specifically to address these practical challenges.
This scoping paper is a first contribution to this new dialogue stream. Rather than being intended to answer, or lay to rest, issues of contention, it is written in such as way as to open up contentious and challenging issues for discussion, to highlight areas where there are already different views, summarise some of the lessons learned and to provide some basic lines of enquiry as the dialogue stream begins to engage with national and local interlocutors, including in particular indigenous peoples. It is not intended to be a full and final treatment of the issue, which is in any case impossible, as respect for the right to Free, Prior and Informed Consent is a rapidly evolving field where laws, norms and practices are in a dynamic phase of definition.
Download the entire paper here (.pdf) .