FPIC 101: An Introduction to Free, Prior, and Informed Consent

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What is FPIC?

The world’s Indigenous territories are rich in natural resources. Governments, corporations and non-governmental organizations have historically used the lands of Indigenous Peoples for their own purposes and profit—drilling for oil, selling land for large farming plantations, or claiming areas for conservation purposes. These projects are too often undertaken without the consent of those who live on and are sustained by the land, resulting in physical, cultural, spiritual and environmental damage to the communities and the planet.

If a corporation, along with representatives of your government, came to your house and wanted to drill for oil, you would expect them to ask your permission first. You would also expect to be told of all the potential benefits and risks of the project, and if you agreed to the plan, partake in the profits. You wouldn’t expect to be completely ignored, or worse, violently removed from your own land without so much as an explanation. And yet that’s what Indigenous people are experiencing all over the world.

In other words, Indigenous people are not given the chance to give their Free, Prior and Informed Consent (FPIC) to companies looking to make use of their land. The consequences are dire—because governments often use force to ensure that companies can proceed unhindered, FPIC is literally a matter of life and death. Without control of their land, these communities suffer abject poverty and the unraveling of their traditional cultures, all because they are denied a right that most people living in Western-style democracies take as a given.

Over the last few decades, the concept of FPIC has increasingly been used by Indigenous rights advocates to guide negotiations between Indigenous communities and outside interests. The principles of FPIC were first formally laid out by the 1989 International Labour Organisation’s Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169). Articles 6, 7, and 9 of ILO 169 establish that consent must be acquired before indigenous communities are relocated or before development is undertaken on their land. The FPIC concept was strongly reinforced by the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which outlined a host of scenarios in which FPIC should become the standard “best practice” for negotiations between indigenous peoples and any other entity. UNDRIP articles 10, 11, 19, 29, 30, and 32 all argue for the inclusion of FPIC in negotiations regarding land, culture, property, resources, and conservation.

Why do we need to define FPIC?

While the United Nations is an international organization with 193 member states and its declarations carry enormous weight, they are not legally binding. FPIC is simply a guideline and “best practice” for negotiations. So why focus on defining the concept in such detail?

FPIC can be used to alleviate misunderstandings about land ownership, safeguard indigenous sovereignty, ensure fair dealing, and formulate relationships built on trust. The FPIC guidelines established by UNDRIP have been used by Indigenous Peoples and their supporters to pass laws at the national level. However, since FPIC is not binding, it can be distorted for the purposes of manipulation, inequitable bargains, and poor representation for Indigenous Peoples. Without clear definitions of what qualifies as “consent,” outside actors can claim the legitimacy of FPIC even if its true spirit has not been upheld, making their projects even more difficult to challenge.

Even when outside interests fully intend to acquire FPIC before beginning their projects, it can be difficult to know how to secure FPIC from a community. For instance, there are multiple decision makers and opinions in every community, and consent from one faction may not represent the desires of the entire group. The more practical and unequivocal the international definition of FPIC, the stronger its implementation will be on the ground and the easier to follow for companies, governments and NGOs.

Defining Free, Prior and Informed Consent

Free

Communities must be free to participate in negotiations that affect them without force, intimidation, manipulation, coercion, or pressure by the government, company, or organization seeking consent.

Prior

The community must be given a sufficient amount of time to review and consider all necessary information and to reach a decision before the implementation of the project begins. Because every community is different and has different decision-making processes, the community and only the community must decide how much time it needs.

Informed

The interested parties must provide adequate, complete, relevant information to the community so that it can assess the potential pros and cons of a particular action. Information must be provided in a form that is easily accessible to the community, including translated documents and media and descriptions of proposed actions that can be understood by a layperson. Scale models, videos, maps, diagrams and photographs can only do so much in depicting complex, large-scale changes that the community may never have experienced and are hard to conceptualize. Ideally, representatives of affected communities are able to visit similar projects in person and enter into dialogues with people who have experienced similar developments firsthand. It is also crucial that the community have access to independent, neutral counseling and the necessary legal and/or technical expertise to understand all of the potential results of the proposed action.

Consent

The community must have the option of saying “yes” or “no” to the project before planning begins, along with a detailed explanation of the conditions under which consent will be given. This decision must be respected absolutely by all interested parties. The community must also be given the opportunity to provide feedback at every stage of project development and execution to ensure that the conditions of consent are met. If the conditions of initial consent are not met, the community must have the option of withdrawing its consent and all interested parties must immediately cease any part of the project to which the community had not agreed.

What’s next?

Even these definitions leave much to be desired. A detailed manual on FPIC is needed, something that Indigenous groups all over the world contribute to and build from their collective needs and experience. First Peoples is working on creating a database of FPIC guidebooks – disturbingly, we’ve so far found that only 25 percent of FPIC sources are actually produced by Indigenous organizations.

All this week, First Peoples is focusing on FPIC, leading up to the United Nations’ International Day of the World’s Indigenous People on Friday, August 9th, when we’ll also be hosting a webinar with Proud to Be Indigenous Coalition members Cultural Survival and the International Indian Treaty Council. The webinar, which will start at 11am EST, is entitled Engaging FPIC: Understanding, Interpretation, and Self-Determination - register online here!

 

(Photo from Amazon Watch)