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Introduction
Indigenous peoples and local communities have fought for the recognition by their national governments, the international community and by companies of their right to give or withhold consent for project development to control their own future and the future of their people.
This right is often violated when there are large-scale development projects - like a mine, dam, highway, plantation or logging. Often indigenous peoples and other community members are left out of the planning and decision-making process in these projects. The outcome can be devastating. Indigenous Peoples and project-affected communities risk a permanent loss to their livelihoods and cultures. Lands can be damaged or taken without their consent. Resettlement is often forced on communities with inadequate compensation offered.
This should not happen. Indigenous Peoples are protected from this situation under International law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Safeguards also exist for other project-affected communities. Indigenous peoples and local communities have the right to be involved in any decision that affects their lands, resources or territories. They have the right to give or withhold their Free, Prior and Informed Consent. They have the right to reach a collective decision through processes defined and determined by themselves.
Meaning
Illustration: FPIC Steps
(Click on picture to enlarge)
© OXFAM |
“Free, prior and informed consent recognizes indigenous peoples’ inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them, based on the principle of informed consent” .
› Free from force, intimidation, manipulation, coercion or pressure by any government or company.
› Prior to government allocating land for particular land uses and prior to approval of specific projects. You must be given enough time to consider all the information and make a decision.
› Informed, you must be given all the relevant information to make your decision about whether to agree to the project or not
- This information must be in a language that you can easily understand.
- You must have access to independent information, not just information from the project
developers or your government.
- You must also have access to experts on law and technical issues, if requested, to help make your decision.
› Consent requires that the people involved in the project allow communities to say
“Yes” or “No” to the project and at each stage of the project, according to the decision-making process of your choice.
Benefits
Acquiring early and sustained input from indigenous peoples and local communities help ensures that all initiatives affecting their lives respond to their priorities, are in consonance with their culture and cosmogony and reflect their choices of development by building on their knowledge, initiatives and motivation. This, in turn, helps increase ownership, accountability and sustainability. Additionally, participation enhances the capacity to identify and adjust to emergent problems, and to engage in advocacy and policy dialogue with local and national policy makers.
FPIC can also benefit companies investing in large-scale development projects. For example, it can reduce the risk of conflict between the community and company if communities are actively involved in project decisions from the outset. Also governments can benefit from protecting this right of their people.
How to get “consent”?
To give consent requires that the people involved in the project allow communities to give or withhold their consent to the project and at each stage of the project through customary or other community-defined decision-making processes using their own freely chosen representatives.
Local people have their own decision-making structures and processes, therefore, governments and companies often convince a chief or leader to sign away consent, without the authority or knowledge of community members who make decisions by consensus. This inevitably leads to problems and surprises in the future. In some cases, traditional decision-making structures are no longer functional or are not adapted to this type of decision. An FPIC policy needs to adapt to, respect and support local communities’ and indigenous peoples’ own participative decision-making processes, and the people need the capacity and knowledge in order to make a free and informed decision.
Consent requires time and an effective system for communicating among all affected community. Consultation should be undertaken in good faith. The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. It should result in equitable agreements, and should be part of ongoing processes of communication and negotiation, rather than a one-off action.
How to deal with the conflicts?
• Community opposition can arise from impacts that are generated at any stage in the project cycle. As a result, FPIC must be ongoing and iterative if it is to be an effective risk management strategy.
• Addressing the risks of community opposition before the project begins is likely to be much more successful and cost-effective than responding to community opposition later on.
• Mere engagement or consultation may not be sufficient to fully address the risks. Consultations that do not resolve a community’s reasons for opposition or achieve consent will provide little assurance against potentially costly and disruptive conflict.
• Refusal of consent: when FPIC is explained to developers and government officials, it is often difficult for them to accept that communities have the right to withhold consent. This right is fundamental to FPIC, and is supported by numerous international laws, instruments, and conventions. In explaining the risk of a community withholding consent, it is important to emphasize (a) the risk of proceeding without consent, (b) that the right to FPIC is the right of a community, and not an individual right of veto over a proposed development, and (c) giving and withholding of consent is time-specific – both can be re-visited and revised. It is also location specific: A community may agree that part of their customary area is included in a project, but may want another area to be kept outside of the project.
• In many areas of Southeast Asia, FPIC is also being promoted by NGOs to support communities affected by plantation and forestry industries, so as to give these communities more leverage in their negotiations with companies. As a result, FPIC and the NGOs that promote it may be seen as ‘anti-development. Project proponents need to manage this risk by ensuring that regular communication is maintained with government, proponents, and other stakeholders to avoid them misunderstanding the right to FPIC and the process to obtain consent.
Criteria that ensure a FPIC process has adequate community’s involvement
Information: Affected communities should be provided sufficient information in local languages regarding the proposed project. Governments and project proponents should work with communities to understand the types of information the communities need to make informed decisions, and must allow sufficient time for communities to review and discuss information provided to them.
Inclusiveness: All interested community members should be allowed and encouraged to take part in the FPIC process, including stakeholders affected by indirect or cumulative impacts.
Dialogue: Dialogue within an FPIC process should be formalized, continue throughout the lifetime of a project, and include project proponents and government and local stakeholder representatives.
Legal recognition: FPIC should be formally recognized through binding negotiated agreements. There should be a sufficient period of time for community decision making prior to project commencement.
Monitoring and evaluation: Opportunities for appropriate and independent community monitoring should be put in place. Monitoring and evaluation should be supported by independent grievance processes to ensure that community concerns are addressed throughout a project’s lifetime.
Corporate buy-in: Project proponents should view FPIC as an inherent and necessary cost of project development. Where appropriate, developers should find constructive ways to channel funds to communities to maintain the integrity of the process and the independence of the community’s role.