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Evaluation of Free, Prior and Informed Consent

Info: 3448 words (14 pages) Law Essay
Published: 4th Dec 2020

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Introduction: What is free, prior and informed consent?

Free, prior and informed consent (FPIC) is a legal right granted to indigenous peoples. This right is gleaned from the fundamental human right of self-determination which allows peoples to freely determine their political status and freely pursue their economic, social, and cultural development.[1] Due to being marginalized both politically and economically, indigenous peoples can exert very little control over their lands and how these are being governed by the states.[2] The initial definition of FPIC was created by the Working Group on Indigenous Populations in 1993 but has since been adopted in other human rights instruments, including the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the International Labour Organization (ILO) convention. Article 32(2) of the UNDRIP states that, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources...”[3] While this is a legally established right, there is no universally accepted standard of FPIC and states have historically opposed a radical viewpoint of the right, thus restricting indigenous peoples’ influence in the decision-making process. Following the development of Article 32(2) of UNDRIP, the Food and Agricultural Organization of the United Nations has created a manual outlining the essential steps of FPIC. They describe that, “consent should be sought before any project, plan or action takes place (prior)...independently decided upon (free) and based on accurate, timely and sufficient information provided in a culturally appropriate way (informed)”[4] Despite this, the scope and real world applicability of FPIC is called into question due to the inconsistent definition as well as it’s implementation by states. This is illustrated in Latin America where most states have already ratified ILO 169 but have not implemented these processes and, apart from Peru and Panama, have not created a framework for regulating these rights.[5]

Challenges of free, prior and informed consent:

Merry states that law can be ‘a form of violence endowed with the legitimacy of formally constituted authority”[6] thus acting as a mode of control and reinforcing power balances. Indigenous peoples have historically been taken advantage of due to “deep, systematic and widespread” violations.[7] Because of the extreme disadvantages that stem from these considerations as well as a stark power imbalance, indigenous peoples have special concerns regarding development and use of their land and natural resources. States have not done enough to ensure that these concerns are given adequate attention to best balance the preservation of tradition and development of the state. States have considered indigenous peoples to be anti-development and so opposed their ability to veto projects for development that may affect indigenous lands. This opposition was seen in the now final wording of Article 32(2) which provides that states must consult indigenous people to obtain their consent rather than actually obtaining it.[8] This thus raises the question on how effective is the FPIC in protecting indigenous peoples rights and if indigenous people themselves have any real control over the consent of the project.

In a case study and analysis of the Guaraní people of Bolivia, opposition to extraction procedures was not seen as a realistic option for the people.[9] The indigenous people did not want to be seen as a hindrance to the country’s development but also felt as though even if they did reject the proposal, the government would still implement the project, using military forces if needed. Withholding consent was also considered illegal under Bolivian law. This effectively negated the Guaraní’s power under the relevant acts and emphasized the power imbalance that the indigenous people face when trying to protect their rights. The use of the land also comes into question. In their landmark judgment in Saramaka People v Suriname, the Inter American Court of Human Rights (IACHR) tried to strike a balance between the rights of the people and the use of the land. It was held that it would be “meaningless” to interpret Article 21 without allowing the indigenous people rights to their natural resources.[10] This however did not mean that states were to be prevented from the exploration and extraction of resources. This balance is skewed however when it is acknowledged that even where a state has been implementing legal means to protect indigenous people and the environment, these usually fall under environmental and cultural government institutions which carry much less influence than that of financial government institutions.

The ability to cater to indigenous peoples’ human rights only becomes more complicated when considering the nature of the people themselves. Human rights have famously been criticized as favouring Western ideals that were not applicable to all cultures. Because each group of indigenous people abide by their own unique cultural practices, it would therefore be impossible to use a standard, general blueprint to include all groups. When enforcing FPIC, an institution would first have to take into consideration political, social, environmental and even spiritual contexts.[11] It has been shown in many cases that even though there supposedly was consent, most of the community were not knowledgeable about the procedure or opposed the exploitation of the resources in question. Gregory Ch’oc’s describes his experience as a Mayan in Belize where government officials had entered into agreements without the consent of the Maya people and where for the purpose of “consultation” the villagers were asked to evaluate an environmental impact assessment document consisting of about 300 pages and drafted entirely in English.[12] This demonstrates how states may attempt to manipulate the process in the name of development.  As the Expert Mechanism on the Rights of Indigenous Peoples defines it, “consent is a significant element of the decision-making process obtained through genuine consultation and participation. Hence, the duty…is not only a procedural process but a substantive mechanism…”[13] For there to be effective protection of rights, states must therefore ensure that there is meaningful participation in the decision-making process.

Remedies and Restitution

If the FPIC system has failed and there was not adequate consultation prior to the development project, the UNDRIP has placed certain requirements and compensation schemes in place. Articles 10 and 29 outline specific circumstances in which states must explicitly obtain consent of the indigenous people, beyond the general obligation to have consultations potentially leading to consent. These include where indigenous peoples are forced to be relocated from their lands under Article 10 and the handling of hazardous materials on indigenous peoples’ lands under article 29.[14] This is reconfirmed in cases such as Delgamuukw v British Columbia where the Canadian Supreme Court held that the state has an obligation to consult with indigenous people proportionate to the impact a project would have on their resources.[15]

 Furthermore, if indigenous peoples have lost their lands by being “confiscated, taken, occupied or damaged without their free, prior and informed consent” they are entitled to restitution or other appropriate redress (article 28). While this aims to redress loss of land and cultural space for the indigenous people, this may not be adequate as a means of compensation. This is especially when compensation paid to the indigenous people would usually be minor in comparison to the profits gained from development and the extraction of resources. The need for redress may therefore not encourage states to come to an agreement with the indigenous peoples since this would seem negligible in the face of the ‘greater good’ of the country. This is demonstrated by Schilling-Vacaflor when participants’ critique of the information distributed were dismissed and instead, they were told, ‘You should not be obsessed with the information and the consultation process. You should instead focus on what is really important: the negotiations over compensation that you will have with the company afterwards’.[16] This further exacerbates the power imbalance between the indigenous people and the State where the monetary power of the State is seen to trump the cultural and environmental impact that development would have on the people. The is especially because indigenous peoples are non-exploitive in their cultural and agricultural processes which is in stark contrast to the exploitive nature of the economy. Natural resources that exist in indigenous lands would therefore be untapped wealth in the eyes of the state versus the preservation of the cultural practices from the perspective of the people.

Furthermore, the impact of the development without consultation would usually be irreversible so that even if a court ruled in favour of the indigenous people, it would be difficult, if not impossible, to restore the natural environment and therefore the indigenous people would likely be relocated. Because of this loss of potentially sacred land, culture and resources, monetary compensation may not be adequate or useful to the people. This is evident in examples such as Ch’oc’s where in 2011 without consultation or notice,[17] US Capital Energy cleared four miles of forest right outside of the Maya village for the purposes of a seismic path. Their seismic testing also resulted in a fire that destroyed more than 400 acres of the ecosystem. Considering the current climate crisis, there is the recognition that the preservation of indigenous peoples’ rights to their lands and resources also contribute in tackling problems such as climate change and the loss of biodiversity. Indigenous peoples are considered the most effective “stewards of the environment.”[18]since their land contains 80% of the world’s biodiversity. This makes states’ lack of consideration for the rights of indigenous people even more concerning since this has a direct negative impact on the environment.

Positive impact of free, prior and informed consent:

Despite its shortcomings, the development of human rights for indigenous people have made significant progress. Indeed, indigenous peoples have won historic victories of the right to land, especially in regional human rights systems. power. In Nmehielle’s opinion, “It’s not about veto power, it is about meaningful engagement: if it’s a development project, it has to be sustainable. Indigenous people have to benefit from it and be included in the whole process in accordance with what affects them positively rather than adversely.”[19] The goal of many of the indigenous peoples are to work together with the state and to grow with development so that there can be a mutually beneficial relationship between the parties. By prioritizing the participation of the people, this usually allows indigenous people to maintain their traditional practices while at the same time benefitting from employment opportunities and infrastructure from the project. This was seen in practice in 2005 where Novateck, one of Russia’s largest natural gas companies,[20] worked together with the Nenetz people to create a socio-economic program that would allow for a healthy balance between development and traditional practices. In Bolivia,[21] research has shown that younger, better educated males of the Guarani people perceive similar projects in a positive light for it’s economic and employment benefits. This provides additional proof that indigenous people are not resistant to development but to the exploitation of their land without their consent and the destruction of their way of life. If the FPIC is more stringently enforced, this could facilitate the cooperation of indigenous people and the states to develop in a way that would benefit all.

Conclusion:

A fundamental international human right is the right to self-determination. Because of their history of exploitation, it is our duty to ensure that indigenous peoples are granted extra protection under this right. In so doing, this would protect their land, language, tradition and ways of life. Article 32(2) of the UNDRIP recognizes this right and confers the obligation onto states to consult with indigenous people before proceeding with development in their land. Despite taking these measures to protect indigenous peoples, states have opposed the strict enforcement of these rights. Because states are concerned primarily with economic development, the protection of these rights does not take precedence and may in fact be exploited for the states’ development goals. This may cause states to prioritize compensation over consultation of the communities involved. Despite this however, the protection of the indigenous peoples’ rights has positive implications on the protection of the environment and cultural practices of a state. By working together, the state and the community can create a mutually beneficial agreement that promotes development while maintaining the way of life of the people.

Bibliography:

  • Barelli, M. (2015). Development projects and indigenous peoples' land: Defining
  • the scope of free, prior and informed consent. In: Handbook of Indigenous Peoples' Rights.
  • (pp. 69-82). Oxford, UK: Routledge. ISBN 9781136313851
  • Ch'oc G, 'Lost In Translation? Maya In Belize Hope To Set Historic FPIC Precedent' [2012] Cultural Survival Quarterly
  • Free Prior And Informed Consent An Indigenous Peoples’ Right And A Good Practice For Local Communities. A Manual For Project Practitioners (Food and Agricultural Organization of the United Nations 2016) accessed 15 January 2020
  • Indigenous Peoples’ Collective Rights To Lands, Territories And Resources (UN Department of Public Information 2017) accessed 17 January 2020
  • John E, 'Free, Prior And Informed Consent Protecting Indigenous Peoples’ Rights To Self-Determination, Participation, And Decision-Making' [2012] Cultural Survival Quarterly
  • 'Land Rights - IWGIA - International Work Group For Indigenous Affairs' (Iwgia.org, 2020) accessed 17 January 2020
  • Merry S, 'Anthropology, Law, And Transnational Processes' (1992) 21 Annual Review of Anthropology https://www.jstor.org/stable/2155992?seq=1
  • Permanent Forum on Indigenous Issues, 'Rights Violations Of Indigenous Peoples ‘Deep, Systemic And Widespread’, Special Rapporteur Tells United Nations Permanent Forum' (2010)
  • Schilling-Vacaflor A, 'Who Controls The Territory And The Resources? Free, Prior And Informed Consent (FPIC) As A Contested Human Rights Practice In Bolivia' (0-www-tandfonline-com.wam.city.ac.uk,2016) accessed 15 January 2020
  • 'Self-Determination In International Law - International Law - Oxford Bibliographies - Obo' (Oxfordbibliographies.com,2020) accessed 14 January 2020
  • 'SocialResponsibility'(Novatek.ru2018) accessed 17 January 2020
  • Summers J, 'Self-Determination In International Law - International Law - Oxford Bibliographies-Obo'(Oxfordbibliographies.com,2017) accessed 14 January 2020

[1]James Summers, 'Self-Determination In International Law - International Law - Oxford Bibliographies - Obo' (Oxfordbibliographies.com, 2017) accessed 14 January 2020.

[2] 'Land Rights - IWGIA - International Work Group For Indigenous Affairs' (Iwgia.org, 2020) accessed 17 January 2020.

[3] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at: https://www.refworld.org/docid/471355a82.html [accessed 17 January 2020]

[4]Free Prior And Informed Consent An Indigenous Peoples’ Right And A Good Practice For Local Communities. A Manual For Project Practitioners (Food and Agricultural Organization of the United Nations 2016) accessed 15 January 2020.

[5] Almut Schilling-Vacaflor, 'Who Controls The Territory And The Resources? Free, Prior And Informed Consent (FPIC) As A Contested Human Rights Practice In Bolivia' (0-www-tandfonline-com.wam.city.ac.uk, 2016) accessed 15 January 2020.

[6] Sally Engle Merry, 'Anthropology, Law, And Transnational Processes' (1992) 21 Annual Review of Anthropology .

[7] Permanent Forum on Indigenous Issues, 'Rights Violations Of Indigenous Peoples ‘Deep, Systemic And Widespread’, Special Rapporteur Tells United Nations Permanent Forum' (2010).

[8] Barelli, M. (2015). Development projects and indigenous peoples' land: Defining

the scope of free, prior and informed consent. In: Handbook of Indigenous Peoples' Rights.

(pp. 69-82). Oxford, UK: Routledge. ISBN 9781136313851

[9]   Almut Schilling-Vacaflor, 'Who Controls The Territory And The Resources? Free, Prior And Informed Consent (FPIC) As A Contested Human Rights Practice In Bolivia' (0-www-tandfonline-com.wam.city.ac.uk, 2016) accessed 15 January 2020.

[10] IACHR Series C No 185

[11] Edward John, 'Free, Prior And Informed Consent Protecting Indigenous Peoples’ Rights To Self-Determination, Participation, And Decision-Making' [2012] Cultural Survival Quarterly.

[12] Gregory Ch'oc, 'Lost In Translation? Maya In Belize Hope To Set Historic FPIC Precedent' [2012] Cultural Survival Quarterly.

[13]   Edward John, 'Free, Prior And Informed Consent Protecting Indigenous Peoples’ Rights To Self-Determination, Participation, And Decision-Making' [2012] Cultural Survival Quarterly.

[14] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at: https://www.refworld.org/docid/471355a82.html [accessed 17 January 2020]

[15] Delgamuukw v British Columbia, [1997] 3 SCR 1010, 1997 CarswellBC 2358

[16]     Almut Schilling-Vacaflor, 'Who Controls The Territory And The Resources? Free, Prior And Informed Consent (FPIC) As A Contested Human Rights Practice In Bolivia' (0-www-tandfonline-com.wam.city.ac.uk, 2016) accessed 15 January 2020.

[17] Gregory Ch'oc, 'Lost In Translation? Maya In Belize Hope To Set Historic FPIC Precedent' [2012] Cultural Survival Quarterly.

[18] Indigenous Peoples’ Collective Rights To Lands, Territories And Resources (UN Department of Public Information 2017) accessed 17 January 2020.

[19] Edward John, 'Free, Prior And Informed Consent Protecting Indigenous Peoples’ Rights To Self-Determination, Participation, And Decision-Making' [2012] Cultural Survival Quarterly.

[20] 'Social Responsibility' (Novatek.ru, 2018) accessed 17 January 2020.

[21]       Almut Schilling-Vacaflor, 'Who Controls The Territory And The Resources? Free, Prior And Informed Consent (FPIC) As A Contested Human Rights Practice In Bolivia' (0-www-tandfonline-com.wam.city.ac.uk, 2016) accessed 15 January 2020.

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