How can (and do) financial lenders ensure that Indigenous Peoples' rights to free, prior and informed consent are meaningfully recognized in development practices? This article identifies some different facets of the concept of 'FPIC' and offers some recommendations for how the principal of FPIC can be operationalized via policy provisions and practice approaches.
by Aaron Kyle Dennis
Published 2011-Feb-23 by Cross-Cultural Consulting Services, PLCC.
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Substantively, the principle of 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. Procedurally, free, prior and informed consent requires processes that allow and support meaningful choices by indigenous peoples about their development path.
— Antoanella-Iulia Motoc; Tebtebba Foundation [1]
Toward substantively respecting Indigenous Peoples’ right to free, prior and informed consent (FPIC), development financial institutions mandate that potential borrowers demonstrate compliance with procedural (operational) requirements [read: ‘policy’]. Borrower eligibility for financing is assessed at different ‘checkpoints’ and (ostensibly) lenders tailor their loan conditions to each specific project initiative—accounting for differentiated forms of risk (social, environmental, financial, etc.).
One challenge faced by the policy makers at development financial institutions is how in their sequences of procedural checkpoints one can demonstrate that a project has achieved the free-prior and informed consent of affected communities. More critical still, to what are these communities consenting?
Take, for example, the challenge of demonstrating just “prior” consent. Would consent need to be obtained and documented for the project concept before at each stage in the project lifecycle (i.e. before exploration, construction, and operations)? Can consent be contingent on the project meeting a particular condition (or set of conditions) imposed on it by Indigenous Peoples prior to a financial institution making a loan decision? In complex loan agreement, would lack of demonstrated consent preclude a project for any form of approval, or might it be possible for a conditional loan to be approved (i.e. requiring the project to demonstrate FPIC for a specific aspect of the project before it moves into another operational phase)?
The key principle with regard to consultation is the establishment of mechanisms that ensure that communities are able to give their free, prior and informed consent to activities affecting them after a process that takes into account their own methods of decision-making.
Establishing project management strategies that defer to FPIC as a internationally recognized human right is a similarly daunting concept—and one that can be particularly difficult for borrowers to appreciate and embrace. To really involve Indigenous Peoples in project planning necessitates that companies re-shape management structures and acknowledge that Indigenous Peoples are true and equal partners in the development process.
One approach to integrating FPIC in project design is to apply it as some form of “participation methodology”, wherein Indigenous Peoples are asked to consent to a range of developmental options for impact avoidance and mitigation alongside benefits-sharing arrangements.
The Inter-Agency Support Group on Indigenous Issues recommendations for operationalizing FPIC include:
“Report of the Inter-Agency Support Group on Indigenous Issues on its 2004 session” [Annex III: Technical Position Paper] Document ID: E/C.19/2005/2 (14 February 2005).
- Consultation should take place in good faith and fully disclose the intent and scope of the activity.
- The representatives consulted should be chosen by indigenous peoples themselves in accordance with their own procedures.
- Consultation should be undertaken in a manner appropriate to the circumstances and through appropriate procedures, for example, with respect for the language and time requirements of traditional decision-making.
- Where indigenous peoples do not have the right to veto proposed initiatives, the consultation process should ensure that they have a realistic chance of affecting the outcome.
Procedural formulations of FPIC as a “participation methodology” have received criticism from civil society. This manifestation of the consent-centered principle of “FPIC” and the procedurally-oriented notion of “FPIConsultation” as it was previously invoked in international lending policy conceptually begin to blur.
When seeking to apply parameters for “demonstrating” FPIC in developmental contexts—namely, those articulated in the institutional policies of corporations, development agencies, lending institutions, or other organizations implementing projects affecting indigenous people—attention can also be placed on “operational allowances and limitations”. In this formulation, the emphasis is on the exclusion: “allowances” refers to policy allowance for triggering FPIC, and “limitations” refers to the parameters set to limit the scope of a project’s social requirements [i.e. consent to what?].
An analysis of international law and international formulations of FPIC suggests that the principal areas where it is invoked are in relation to:
- indigenous lands and territories, including sacred sites (may include exploration, such as archaeological explorations, as well as development and use).
- treaties, agreements and other constructive arrangements between States and indigenous peoples, tribes and nations.
- extractive industries, conservation, hydro development, other developments and tourism activities in indigenous areas, leading to possible exploration, development and use of indigenous territories and/or resources.
- access to natural resources including biological resources, genetic resources and/or traditional knowledge of indigenous peoples, leading to possible exploration, * development or use thereof.
- development projects encompassing the full project cycle, including but not limited to assessment, planning, implementation, monitoring, evaluation and closure, whether the projects are directed towards indigenous communities or, while not directed towards them, may affect or impact upon them. Development projects may include access to public resources such as on health, education and infrastructure.
- United Nations organizations and other intergovernmental organizations that undertake studies on the impact of projects to be implemented in indigenous peoples’ territories.
- policies and legislation dealing with or affecting indigenous peoples.
- any policies or programmes that may lead to the removal of their children, or their removal, displacement or relocation from their traditional territories.
[↑Ref. 1] Quote from a preliminary working paper on the principle of free, prior and informed consent, submitted to the UN Commission on Human Rights, Working Group on Indigenous Populations (twenty-second session). Document ID: E/CN.4/Sub.2/AC.4/2004/4 (08 July 2004). Available at: http://www2.ohchr.org/english/issues/indigenous/docs/wgip22/4.pdf
[↑Ref. 2] “Report of the Inter-Agency Support Group on Indigenous Issues on its 2004 session” [Annex III: Technical Position Paper] Document ID: E/C.19/2005/2 (14 February 2005).
Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/237/10/PDF/N0523710.pdf?OpenElement;