Free, prior and informed consent (FPIC) is aimed to establish bottom-up participation and consultation of an indigenous population prior to the beginning of development on ancestral land or using resources in an indigenous population's territory.Lorenza B. Fontana and Jean Grugel, “The Politics of Indigenous Participation Through ‘‘Free Prior Informed Consent”: Reflections from the Bolivian Case” (2016) 77 World Development 249-261 at 1 Indigenous people have a special connection to their land and resources and inhabit one fifth of the Earth's surface. Such areas are environmentally rich in both renewable and non-renewable resources.United Nations Division of Social Policy and Development indigenous peoples, “Environment’ https://www.un.org/development/desa/indigenouspeoples/thematic-issues/environment.html The collective ownership style of most Indigenous Peoples conflicts with the modern global market and its continuous need for resources and land. To protect Indigenous Peoples' rights, international human rights law has created processes and standards to safeguard their way of life and to encourage participation in the decision-making process. One such method is the process of FPIC. There is criticism that many international conventions and treaties require consultation, not consent, which is a much higher threshold. Without the requirement for consent, indigenous people cannot veto government projects and developments in their area that directly affect their lives and cultures. FPIC allows Indigenous Peoples to have the right to self-determination and self-governance in national and local government decision-making processes over projects that concern their lives and resources.
Examples include natural resource management, economic development, uses of traditional knowledge, genetic resources, health care, and education.
Interpretation Definition Although there are numerous definitions and debates about FPIC, the United Nations Food and Agricultural Organization has defined the concept of FPIC as the following:
Free simply means that there is no coercion, conditions, bribery or reward of the indigenous people and that the process is self-directed by those affected by the project. Prior implies that consent is sought sufficiently in advance of any activities being either commenced or authorised, and time for the consultation process to occur must be guaranteed by the relative agents. Informed suggests that the relevant indigenous people receive satisfactory information on the key points of the project, such as the nature, size, pace, reversibility, and scope of the project as well as the reasons for it and its duration. That is the most difficult term of the four, as different groups may find certain information more relevant. The indigenous people should also have access to the primary reports on the economic, environmental, and cultural impacts that the project will have. The language that is used must be understood by the Indigenous Peoples. Consent is not defined but is granted or withheld after a process that involves consultation and participation. However, mere consultation by itself is not a substitute for actual consent. The UN Working Group on Business and Human Rights notes that Indigenous Peoples "should determine autonomously how they define and establish consent."
The UNPFII requires indigenous people should be consulted in a way that is appropriate for their customs. That means that not every member will have to agree, which has been criticised by some women's rights groups. The indigenous people determine who is to be consulted and must effectively communicate that with the government and developers. It is the duty of states to make sure that FPIC has been carried out. Otherwise, it is their issue to redress, not that of the company or the people wishing to carry out the project.Parshuram Tamang, "An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices", (2005) United Nations Workshop on Free Prior informed Consent The International Labour Organization requires a consultation to take place in a climate of mutual trust, and circumstances are considered appropriate if they create favourable conditions for reaching agreement and consent. In a pilot study by the UN-Reducing Emissions from Deforestation and forest Degradation UN-REDD of FPIC application in Vietnam the following steps were required: (1) preparation, (2) consultation with local officials, (3) recruitment of local facilitators, (4) training of the local facilitators, (5) awareness raising, (6) village meeting, (7) recording the decision, (8) reporting to UN-REDD Vietnam, and (9) verification and evaluation. The majority of issues with the policy was the recruitment of the local facilitators, who were able to discuss the process in a language, but Indigenous Peoples understood there was mistrust towards them and a fear that they had been bribed.Eric J. Jokela “Adapting Free, Prior, and Informed Consent (FPIC) Local Contexts in REDD+: Lessons from three Experiments in Vietnam” (2015) Forests at 6
International development
The principle of FPIC within international development is most clearly stated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 10 states: Indigenous Peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the Indigenous Peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Articles 11, 19, 28, and 29 of the declaration also explicitly use the term. It is further established in international conventions, notably the ILO Convention 169 on Indigenous and Tribal Peoples. Countries including Peru, Australia, and the Philippines have included FPIC in their national law.
Criticism and challenges Although FPIC is protected under international law, State domestic policies often work around the consent aspect, understanding it as a negotiation process, rather than a process of internal self-determination. Industry representatives argue that the FPIC framework, particularly the consent part, allows Indigenous peoples to stop development projects that could benefit public interests and economic growth. The counter argument to this however, is that extraction for corporate profit reproduces neocolonial legacies.
Another critique is that the FPIC framework threatens state sovereignty by giving decision-making powers of land to communities and Indigenous peoples. The counter argument to this point out how Federal systems and decentralized governance already share decision-making powers, explaining how Indigenous governance can also exist within multiple levels of authority. Additionally, Scholars argue that Indigenous sovereignty already existed before state sovereignty, explain how Indigenous communities has had, and still has, long-standing authority over their land. The FPIC doesn't create indigenous power, it protects the power that has already existed long before state control.
International law The role of Indigenous Peoples' FPIC in decisions about infrastructure or extractive industries developed on their ancestral domain is an issue in international law. Projects lacking FPIC are called development aggression by Indigenous Peoples, whose lack access to accountability and grievance mechanisms to address human rights violations have been formally raised with the United Nations Human Rights Council. Asian Indigenous Peoples urged the UN to address the issue before the economic integration of ASEAN in 2015, because of the human rights records of member states such as Myanmar and Laos, which are among the world's most repressive societies.
International Labour Organization The International Labour Organization (ILO) has been working with indigenous people since the 1920s and currently has 187 member states, including New Zealand. ILO Convention 169 (the Convention) on indigenous and tribal peoples is an international treaty adopted by the ILO in 1989. The Convention aims to overcome discriminatory practices affecting indigenous people and enable them in the decision-making process. The fundamental foundations of the Convention are participation and consultation. The requirement for consultation falls upon the government of the state and not on private persons or companies and may be delegated, but the ultimate responsibility rests on the government.ILO, 'Understanding the Indigenous and Tribal People Convention, 1989 (No. 169)" (2013) http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_205225.pdf The need for consultation of IPs is written throughout the Convention a number of times and is referred to in Articles 6, 7, 16 and 22. Article 6(1) states that governments should: <blockquote>
“Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly" '''</blockquote>
Article 6 (2) states that the consultation will be carried out in good faith and in a form that is appropriate to the circumstances. The aim of the consultation process is to achieve an agreement or consent to the purposed development.Article 6(2) ILO, Indigenous and Tribal peoples Convention No.169 The Convention does not allow indigenous people to veto any development since the condition is for consultation, not consent. The supervisor bodies of the ILO have stated that the consultation process cannot be mere information-sharing and that there must be a chance for the indigenous people to influence the decision-making process. If consent is not achieved, the nation-state must still respect other areas of the convention that include the Indigenous Peoples' right to their lands. For example, Article 16 (2) requires that free informed consent must be given if is the relocation of people.Article 16 (2) ILO Indigenous and Tribal peoples Convention No.169 The treaty is legally binding on all states that ratify it, which may need to adjust domestic legislation. In nations such as New Zealand, domestic legislation such as the Resource Management Act 1991 refers to the need to consider in developments Maori relationship with land and water sites.s7 Resource Management Act 1991 The spiritual and practical connection that Maori have to the land has been considered in a number cases before the court including the Supreme Court case Paki v Attorney General''.Paki v Attorney General NZSC 118
United Nations The United Nations describes FPIC both directly and indirectly in numerous conventions and treaties. One of the most direct cases is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Article 19 states:
"States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.Article 19, United Nations, Declaration on Rights of Indigenous Peoples (2008)"
Article 32 requires consultation to be carried out with Indigenous Peoples before states can undertake projects that will affect their rights to land, territory and resources Article 32 Declaration on the Rights of Indigenous Peoples Those articles require consultation, but Article 10 requires also informed consent before the relocation of Indigenous Peoples from their land.Article 19 UN Declaration on the Rights of Indigenous Peoples That allows indigenous people the right to decide where they live and gives them the power stop any development that they oppose.