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ABSTRACT
Free, prior, informed consent (or ‘FPIC’ as it is known) has emerged in recent years in international policy and civil society circles as the focal rights-based approach to safeguard indigenous rights in the context of industrial projects in indigenous territories. FPIC refers to a process whereby indigenous peoples affected by a project have the free choice, based on sufficient and timely information, of whether and how a project occurs, according to their systems of customary decision-making. However, despite this increasing and widespread endorsement in international policy and law, FPIC remains contentious, with governments voicing reluctance to confer ‘veto’ rights to indigenous peoples, and companies unsure on how to implement FPIC in practice. This article critically examines how FPIC emerged as the focal rights-based approach to ensuring indigenous peoples are not negatively impacted, and benefit from extractive projects such as oil and gas, and mining, while discussing some of the various challenges from industry perspectives in trying to implement FPIC in practice.
Acknowledgements
I would like to thank Ronald Ranta, Paul Lawrence, Jocelyn Kelln and Stephanie Garrett for kindly reviewing earlier drafts of this article and providing much-needed feedback. I would also like to thank the anonymous reviewers whose comments helped to strengthen the article.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Dr Kathryn Tomlinson currently works as an independent consultant, and has over ten years’ international experience working on best practice approaches to dealing with social and human rights impacts surrounding private sector projects, with a particular focus on the extractive industries. She holds a PhD in Anthropology from the University of Sussex, completed in 2005, and which explored indigenous peoples’ land rights in Venezuela during the development and aftermath of a conflict over the building of an electricity power line through indigenous territories. Following on from her PhD, she has worked on numerous projects with extractive companies involving the intersection between customary and indigenous land rights and private sector project development.
Notes
1 Forest People Programme to Dr Jim Yong Kim, President, The World Bank Group, Letter Re: World Bank Group Safeguard Review and Update Process (4 June 2014).
2 Kathryn Tomlinson, ‘Negotiating Rights: Indigenous Rights, Land and the Power Line Conflict in Venezuela’ (Sussex University, 2005). My PhD explored localised uses of indigenous rights in Venezuela, within the context of a conflict between indigenous and environmental groups, and corporate and state entities, over the building of an electricity power line, and also examined the incorporation of indigenous rights into the constitution and subsequent discussions over their implementation.
3 http://hub.icmm.com/document/1221 (accessed 31 August 2016).
4 See for example: James Anaya, Extractive Industries and Indigenous Peoples (Report to the United Nations Human Rights Council, Twenty-fourth session, 1 July 2013); The Department of Economic and Social Affairs of the United Nations Secretariat, State of the World’s Indigenous Peoples (New York: United Nations, 2009); Emily Caruso and others, Extracting Promises: Indigenous Peoples, Extractive Industries and the World Bank (Report by the Forest Peoples Programme and the Tebtebba Foundation, submitted to the World Bank Extractive Industries Review, May 2003).
5 Today, indigenous communities usually score higher in poverty indicators, and are more likely to experience lower life expectancy, higher infant mortality rates, poorer health, lower educational attainments, and higher unemployment rates than non-indigenous communities in the same countries. Furthermore, indigenous peoples have usually been marginalised within the states they live in and therefore poorly represented by official levels of government.
6 For example, in 1982, Canada amended its constitution to recognise aboriginal rights; since then various landmark court rulings have reaffirmed this recognition. Most Latin American countries have undergone some form of constitutional reform since the early 1990s, recognising indigenous peoples and some of their rights, and have developed associated laws. In Australia, indigenous land rights were recognised by common law in 1992 (High Court of Australia Mabo v. Queensland No.2) and then the Native Title Act was passed in 1993.
7 See for example: Amazon Watch, The Right to Decide: The Importance of Respecting Free, Prior and Informed Consent, Briefing Paper (2011); Antoanella-Iulia Motoc and the Tebtebba Foundation, Preliminary Working Paper on the Principle of Free, Prior and Informed Consent of Indigenous Peoples in Relation to Development Affecting their Lands and Natural Resources (paper submitted to the United Nations Working Group on Indigenous Populations, Twenty-second Session, 8 July 2004); Fergus MacKay, Indigenous Peoples’ Right to Free, Prior and Informed Consent and the World Bank’s Extractive Industries Review (Forest Peoples Programme Report, 28 June 2004); Caruso and others, Extracting Promises; Marcus Colchester and Fergus MacKay, In Search of Middle Ground: Indigenous Peoples, Collective Representation and the Rights to Free, Prior and Informed Consent (Forest Peoples Programme Report, August 2004).
8 United Nations Declaration on the Rights of Indigenous Peoples (2007), Article 32-2.
9 Colchester and MacKay, In Search of Middle Ground, 8.
10 Samuel Hickey and Diana Mitlin, Rights-based Approaches to Development: Exploring the Potential and Pitfalls (Sterling, VA: Kumarian Press, 2009); Paul J. Nelson and Ellen Dorsey, New Rights Advocacy: Changing Strategies of Development and Human Rights NGOs (Washington, DC: Georgetown University Press, 2008).
11 Celestine Nyamu-Musembi and Andrea Cornwall, ‘What is the “Rights-based Approach” All About?: Perspectives from International Development Agencies’, Working Paper Series 234 (Brighton: IDS, 2004).
12 United Nations Human Rights Office of the High Commissioner, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (New York and Geneva: United Nations, 2011).
13 Ibid., 13.
14 For example, the overall World Bank Group financing in the extractives sector in 2015 was 1.8% of its overall annual financing, at US$1,075 million. World Bank, The World Bank Group in Extractive Industries: 2015 Annual Review, 5, http://www.ifc.org/wps/wcm/connect/2eaabb804ae4b8799548bdbfe70b6aa3/WBG+in+Extractive+Industries+-+2015+Annual+Review+.pdf?MOD=AJPERES (accessed 31 August 2016).
15 ICMM represents 23 mining and metals companies, including all the major multinational mining companies, as well as 34 national and regional mining associations and global commodity associations. It is a membership organisation led by the CEOs of its member companies.
16 International Council on Mining and Metals, Indigenous Peoples and Mining: Position Statement (May 2013).
17 See for example: Oxfam, ‘Community Consent Index 2015: Oil, Gas, and Mining Company Public Positions on Free, Prior, and Informed Consent’, Oxfam Briefing Paper 207 (23 July 2015). According to the report, 14 mining companies have made some kind of corporate commitment to FPIC. Eleven of these 14 are members of ICMM.
18 World Bank, Striking a Better Balance: The Extractive Industries Review: Executive Summary (26 November 2003), 1, http://www.ifc.org/wps/wcm/connect/78b8e2004ba92f0ca579bd54825436ab/00.0+Executive+Summary%2C+Extractive+Industries+Review+Report%2C+ENG.pdf?MOD=AJPERES (accessed 31 August 2016).
19 Ibid., 5.
20 World Bank, Striking a Better Balance: The Extractive Industries Review: Final Report Volume 1 (December 2003), xii, http://www.ifc.org/wps/wcm/connect/294e55004ba934bca5adbd54825436ab/01.0+Volume+I+-+The+World+Bank+and+Extractive+Industries%2C+EI+Review+Report%2C+ENG.pdf?MOD=AJPERES (accessed 31 August 2016).
21 Ibid., 21.
22 World Bank, Striking a Better Balance: The Extractive Industries Review: Final Report: World Bank Group Management Response (September 2004), para. 32, http://siteresources.worldbank.org/INTOGMC/Resources/finaleirmanagementresponse.pdf (accessed 31 August 2016).
23 Ibid., 21.
24 Fergus Mackay, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent and the World Bank’s Extractive Industries Review’, Sustainable Development Law & Policy 4 (2004): 43–65; The National Mining Association, Comments on the World Bank Management Response to the Extractive Industries Review External Report (19 July 2004), 4, http://www.nma.org/pdf/pol_briefs/extractive_industries_comments_071904.pdf (accessed 31 August 2016).
25 See for example: Mackay, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent’.
26 Forest People Programme to Dr Jim Yong Kim, Letter Re: World Bank Group Safeguard Review.
27 Mackay, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent’.
28 See Cathal M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Abingdon: Routledge, 2015), Chapter 6, for a detailed description of the various states’ criticisms of FPIC.
29 Ibid.
30 See for example Government of Canada, Canada’s Statement on the World Conference on Indigenous Peoples Outcome Document (New York, 22 September 2014).
31 James Anaya, Extractive Industries and Indigenous Peoples (2013); James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples (Report to the United Nations Human Rights Council, Twenty-fourth Session, 6 July 2012); James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples (Report to the United Nations Human Rights Council, Twelfth session, 15 July 2009); International Law Association, Rights of Indigenous Peoples (Interim Report, The Hague Conference, 2010); International Law Association, Rights of Indigenous Peoples (Final Report, Sofia Conference, 2012).
32 Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, para. 47.
33 As Miller and Redhead point out in this special issue, this challenge of translating theory into practice is widely echoed amongst ‘rights-based approaches’ more widely. Hannah Miller and Robin Redhead, ‘Beyond Rights-based Approaches’, International Journal of Human Rights 21 (2017), this issue.
34 Lehr and Smith, Implementing a Corporate Free, Prior, and Informed Consent Policy; UN-REDD, Guidelines on Free, Prior and Informed Consent (January 2013), 20.
35 Doyle, Indigenous Peoples, Title to Territory, Rights and Resources, 160.
36 The NGO Oxfam America has played a leading role in campaigning for FPIC in the context of extractive projects. Emily Greenspan is a Senior Policy Advisor with Oxfam’s Extractive Industries team and one of the lead authors of the Oxfam annual Community Consent Index report.
37 Aidan Davy is the Deputy President of ICMM and has been closely involved over the years in developing ICMM’s policies on mining and indigenous peoples.
38 Emily Greenspan, ‘Getting to “No” in Mining and Community Consent’, blog posted on the Oxfam America webpage: The Politics of Poverty: Ideas and Analysis from Oxfam America’s Policy Experts, (24 November 2015), http://politicsofpoverty.oxfamamerica.org/2015/11/getting-to-no-in-mining-and-community-consent/ (accessed 31 August 2016).
39 Ibid.
40 Aidan Davy, ‘ICMM Responds to Oxfam’s Blog on Indigenous Peoples and Mining’, posted 3 December 2015 on the ICMM website, https://www.icmm.com/news-and-events/news/icmm-responds-to-oxfam8217s-blog-on-indigenous-peoples-and-mining (accessed 31 August 2016).
41 Ibid.
42 For example: Amy K. Lehr, Indigenous Peoples’ Rights and the Role of Free, Prior and Informed Consent (A Good Practice Note endorsed by the United Nations Global Compact Human Rights and Labour Working Group, 20 February 2014); Lehr and Smith, Implementing a Corporate Free, Prior, and Informed Consent Policy; UN-REDD, Guidelines on Free, Prior and Informed Consent (January 2013); Cathal Doyle and Jill Cariño, Making Free Prior & Informed Consent a Reality: Indigenous Peoples and the Extractive Sector (Report by Indigenous Peoples Links (PIPLinks), Middlesex University School of Law and The Ecumenical Council for Corporate Responsibility, May 2013).
43 Samuel Hickey and Diana Mitlin, Rights-based Approaches to Development: Exploring the Potential and Pitfalls (Sterling, VA: Kumarian Press, 2009); C. Nyamu-Musembi A. Cornwall, What is the ‘Rights-based Approach’ All About?: Perspectives from International Development Agencies, Working Paper Series No. 234 (Brighton: IDS, 2004).
44 Emma Harris-Curtis, Oscar Marleyn, and Oliver Bakewell, The Implications for Northern NGOs of Adopting Rights-Based Approaches, INTRAC Occasional Papers Series No. 41 (2004), 34, http://www.intrac.org/data/files/resources/322/OPS-41-Implications-for-Northern-NGOs-of-Adopting-Rights-Based-Approaches.pdf (accessed 31 August 2016).
45 See for example: Doyle and Cariño, Making Free Prior & Informed Consent a Reality, 18–19.
46 See for example: Marcus Colchester and Maurizio Farhan Ferrari, Making FPIC Work: Challenges and Prospects for Indigenous Peoples, FPIC Working Papers: Forest Peoples Programme (June 2007), 1 and 7.
47 It is worth noting that the concepts of ‘contemporary’ and ‘traditional’ are probably quite simplistic in and of themselves and do not quite do justice to the complexities of indigenous governments and decision-making structures and processes.
48 See also: Lehr and Smith, Implementing a Corporate Free, Prior, and Informed Consent Policy, 28.
49 International Council on Mining and Metals, Indigenous Peoples and Mining.
50 See for example: Oxfam, Community Consent Index 2015; The Global Initiative for Economic, Social and Cultural Rights, A Rights-Based Approach to Participation (A GI-ESCR Practitioner’s Guide, May 2014), http://globalinitiative-escr.org/wp-content/uploads/2014/05/GI-ESCR-Practitioners-Guilde-on-Right-to-Participation.pdf (accessed 31 August 2016).
51 John R. Owen and Deanna Kemp, ‘“Free Prior and Informed Consent”, Social Complexity and the Mining Industry: Establishing a Knowledge Base’, Resources Policy 41 (2014): 98.
52 Indigenous People’s Rights Act (Republic Act No. 8371, Republic of Philippines 1997).
53 See for example the Reglamento de consulta y participación para actividades hidrocarburíferas, 2007 in Bolivia, the Ley N° 29785, Ley del Derecho a la Consulta Previa a los Pueblos Indígenas u Originarios, 2011 in Peru, and Presidential Decree 1247 in Ecuador.
54 Nyamu-Musembi and Cornwall, What is the ‘Rights-based Approach All About?, 47.
55 Harris-Curtis et al., The Implications for Northern NGOs of Adopting Rights-Based Approaches, 34.
56 See for example: David Szablowski, ‘Operationalizing Free, Prior, and Informed Consent in the Extractive Industry Sector? Examining the Challenges of a Negotiated Model of Justice’, Canadian Journal of Development Studies 30, no. 1–2 (2010): 111–30.
57 Mackay, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent’, 57.
58 Colchester and Ferrari, Making FPIC Work, 21.
59 See for example the ICMM Good Practice Guide Indigenous Peoples and Mining and the IFC Performance Standard 7 on Indigenous Peoples.
60 Abbi Buxton, The Spirit of FPIC: Lessons from Canada and the Philippines, International Institute for Environment and Development (London: IIED, 2012), http://pubs.iied.org/pdfs/G03398.pdf (accessed 31 August 2016).
61 Nyamu-Musembi and Cornwall, What is the ‘Rights-based Approach’ All About?, 45.
62 See for example: Lee Carol Godden et al., ‘Introduction: Accommodating Interests in Resource Extraction: Indigenous Peoples, Local Communities and the Role of Law in Economic and Social Sustainability’, in ‘Indigenous and Local Peoples and Resource Development: International Comparisons of Law, Policy and Practice’, ed. Lee Carol Godden and others, special issue, Journal of Energy & Natural Resources Law 26, no. 1 (March 2008): 1–30.
63 Related to this, there has actually been a growing trend over the last decade or so for extractive companies and indigenous peoples to negotiate what are known as ‘impact and benefit’ (IBAs) agreements. These agreements usually stipulate impact management processes that the company needs to abide by, and various types of benefit sharing arrangements for indigenous peoples, such as financial payments, and commitments to employment, training and business contracts. Though the different processes that led to these agreements might not always have been strictly based on a consent process, in some cases it is likely they have, and as such case studies on some of these agreements could provide useful information on both good and flawed processes of consent. For a more in-depth discussion of these agreements, see for example: Michael Limerick et al., Agreement-making with Indigenous Groups: Oil and Gas Development in Australia (report prepared by CSRM at the University of Queensland, Brisbane, 2012); Kathryn Tomlinson and Ramanie Kunanayagam, ‘Indigenous Peoples and Extractive Projects: Success Factors in Compensation and Benefit Sharing Agreements’, Oil, Gas & Energy Law Intelligence (OGEL), Indigenous People and Resources Development 9 (September 2011). See also Szablowski, ‘Operationalizing Free, Prior, and Informed Consent in the Extractive Industry Sector’, 117–19.