elements of a common understanding of FPIC

The principle of "free prior and informed consent" (FPIC) appears in international jurisprudence of the rights of Indigenous Peoples. It is, however, a principle without a universally-accepted definition [ref1](http://www.ifc.org/wps/wcm/connect/50eed180498009f9a89bfa336b93d75f/Updated_GN7-2012.pdf?MOD=AJPERES "International Finance Corporation. 2012. "Guidance Note 7: Indigenous Peoples." Performance Standards and Guidance Notes - 2012 Edition.").

This discussion reviews different definitions of the concept and principle of free, prior and informed consent that may be helpful to inform a “common understanding” of FPIC among social development practitioners.

Historical Contexts and Contemporary Discourses

In Geneva,5–7 December 2001, attendees of the United Nations Workshop on Indigenous Peoples, Private Sector Natural Resource, Energy and Mining Companies and Human Rights discussed the idea of invoking the principal of "free prior and informed concent" within developmental contexts and voiced a desire to identify a universally agreed upon definition of the principle. The participants reached a common understanding of the meaning of the principle, as the right of indigenous peoples, as land and resource owners, to say ‘no’ to proposed development projects at any point during negotiations with governments and/or extractive industries (E/CN 4/Sub 2/AC 4/2002/3, para 52).

The Working Group on Indigenous Populations (‘WGIP’) set an agenda item on FPIC in July 2004 as a forum for standard setting (E/CN 4/Sub 2/AC 4/2003/3) .

The third session of the Permanent Forum on Indigenous Issues (‘UNPFII’) called for a workshop to seek common understanding of the principle of FPIC in activities relating to Indigenous Peoples and to report the outcome of the workshop to the Forum at its Fourth Session in May 2005. The report of the international workshop on free, prior, informed consent sponsored by the Permanent Forum in 2005, however, noted that no definitional consensus could be reached. As stated by Peter Vaughn, Representative of Australia, on behalf of Australia, New Zealand and the United States of America, to the Permanent Forum on Indigenous Issues in 2006:

The international workshop on free, prior informed consent sponsored by the Permanent Forum in 2005 highlighted that there are widely different views about the content and application of any such principle amongst states and indigenous peoples, and discussions about it in other international forums (such as WIPO and the CBD) are still ongoing. It is therefore premature to refer to the conclusions of the workshop as reflecting “a common understanding of free, prior informed consent”.

Over the past decade, the international community has continued to struggle with defining FPIC. International human rights discourse link the principal to earlier legal and policy "consent" madates—thereby conflating previously distinct formulations of the right to "consent" by reference in discussions of "FPIC".

For example, the past UN Committee on the Elimination of Racial Discrimination (‘CERD’) decision to adopt recomendations on State obligations and indigenous rights refers to their ‘informed consent’:

ensure that members of indigenous peoples have rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent

Operational definitions are "agreeing to disagree" on the notion of universal or global definitions of FPIC. For example, the IFC requires "consent" both operationally (process-oriented) and as some tangible form of documented agreement (outcome-oriented). This sort of 'principled ambiguity' is reflected in varying degrees by the policies of other multilaterial development bank policies requiring "consent" [EBRD, ADB, IFC, World Bank], with the intent of the policy formulation to accommodate the multitude of localized understandings of "consent".

In the 2012 revision of the IFC Sustainability Framework, the definition of "free prior and informed consent"(FPIC) is established by Guidance Note 7.

Guidance Note 7: Indigenous Peoples [GN7:4]

The client and the Affected Communities of Indigenous Peoples should establish an ongoing relationship throughout the life of the project. To this end, Performance Standard 7 requires the client to engage in a process of informed consultation and participation (ICP).

In the special circumstances described in paragraphs 13–17 of Performance Standard 7, the client’s engagement process will ensure the Free, Prior and Informed Consent (FPIC) of the Affected Communities of Indigenous Peoples.

As noted in Performance Standard 7 there is no universally accepted definition of FPIC and thus, for the purposes of Performance Standards 1, 7, and 8, FPIC has the meaning described in paragraph 12 of Performance Standard 7.

PS7: 12. There is no universally accepted definition of FPIC. For the purposes of Performance Standards 1, 7 and 8, “FPIC” has the meaning described in this paragraph. FPIC builds on and expands the process of ICP described in Performance Standard 1 and will be established through good faith negotiation between the client and the Affected Communities of Indigenous Peoples. The client will document: (i) the mutually accepted process between the client and Affected Communities of Indigenous Peoples, and (ii) evidence of agreement between the parties as the outcome of the negotiations. FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree.

This meaning is further elaborated in paragraphs GN24–GN26.

Definition of Free, Prior and Informed Consent [GN7:24-26]

GN7: 24. It is recognized that there is no universally accepted definition of FPIC and that the definition and practices related to FPIC are evolving. For the purposes of this Performance Standard, FPIC is defined in Paragraph 12 of Performance Standard 7 and further elaborated below.

GN7: 25. FPIC comprises a process and an outcome. The process builds upon the requirements for ICP (which include requirements for free, prior and informed consultation and participation) and additionally requires Good Faith Negotiation (GFN) between the client and Affected Communities of Indigenous Peoples. GFN involves on the part of all parties: (i) willingness to engage in a process and availability to meet at reasonable times and frequency; (ii) provision of information necessary for informed negotiation; (iii) exploration of key issues of importance; (iv) use of mutually acceptable procedures for negotiation; (v) willingness to change initial position and modify offers where possible; and (vi) provision of sufficient time for decision making. The outcome, where the GFN process is successful, is an agreement and evidence thereof.

GN7: 26. States have the right to make decisions on the development of resources pursuant to applicable national law, including those laws implementing host country obligations under international law. Performance Standard 7 does not contradict the state’s right to develop its resources. A state may have obligations or commitments to ensure that Indigenous Peoples provide their free, prior, and informed consent for matters pertaining to the overall development of indigenous territories. Such state-level obligations are distinct from the project-level FPIC requirements described in Performance Standard 7. As described in GN62–65, where government processes involve project-level decision and actions, the client should review these processes in relation to the requirements of the Performance Standard and address identified gaps where feasible.

Taking into account the Indigenous Peoples’ understanding of the changes brought about by a project helps to identify both positive and negative project impacts. Similarly, the effectiveness of impact avoidance, mitigation and compensation measures is enhanced if the points of views of Indigenous Peoples on matters that affect them are taken into consideration and form part of project decision-making processes.

working definitions

###From the “Report of the International Workshop on Methodologies Regarding Free Prior and Informed Consent” [§ III ‘Conclusions and recommendations’]

#####United Nations Permanent Forum on Indigenous Issues (17 February 2005) [1]

Free: should imply no coercion, intimidation or manipulation;

Prior: should imply consent has been sought sufficiently in advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/consensus processes;

Informed: should imply that information is provided that covers (at least) the following aspects:

a. The nature, size, pace, reversibility and scope of any proposed project or activity;

b. The reason/s or purpose of the project and/or activity;

c. The duration of the above;

d. The locality of areas that will be affected;

e. A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle;

f. Personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others)

g. Procedures that the project may entail.

Consent: Consultation and participation are crucial components of a consent process. 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. Consultation requires time and an effective system for communicating among interest-holders. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. The inclusion of a gender perspective and the participation of indigenous women are essential, as well as participation of children and youth, as appropriate. This process may include the option of withholding consent. Consent to any agreement should be interpreted as indigenous peoples have reasonably understood it.

###From “Standard-Setting: Legal Commentary On The Concept Of Free, Prior And Informed Consent” #####An expanded working paper submitted by Mrs. Antoanella-Iulia Motoc and the Tebtebba Foundation to the United Nations Working Group on Indigenous Populations (14 July 2005)[2]

In relation to development projects affecting indigenous peoples’ lands and natural resources, the respect for the principle of free, prior and informed consent is important so that:

• Indigenous peoples are not coerced, pressured or intimidated in their choices of development;

• Their consent is sought and freely given prior to the authorization and start of development activities;
• indigenous peoples have full information about the scope and impacts of the proposed development activities on their lands, resources and well-being;
• Their choice to give or withhold consent over developments affecting them is respected and upheld.

###From the “The UN Declaration on the Rights of Indigenous Peoples, Treaties and the Right to Free, Prior and Informed Consent - The Framework For a New Mechanism for Reparations, Restitution and Redress”

Submitted by the International Indian Treaty Council to the United Nations Permanent Forum on Indigenous Issues (March 9, 2008)[3][4]

Free is defined as the absence of coercion and outside pressure, including monetary inducements (unless they are mutually agreed on as part of a settlement process), and “divide and conquer” tactics. It must also include the absence of any threats or retaliation if it results in the decisions to say “no”.

Prior is defined as a process taking place with sufficient lead time to allow the information gathering and sharing process to take place, including translations into traditional languages and verbal dissemination as needed, according to the decision-making processes decided by the Indigenous Peoples in question. It must also take place without time pressure or time constraints. A plan or project must not begin before this process is fully completed and an agreement is reached.

Informed is defined as having all relevant information reflecting all views and positions. This includes the input of traditional elders, spiritual leaders, traditional subsistence practitioners and traditional knowledge holders, with adequate time and resources to find and consider information that is impartial and balanced as to potential risks and benefits, based on the “precautionary principle” regarding potential threats to health, environment or traditional means of subsistence.

Consent can be defined as the demonstration of clear and compelling agreement, using a mechanism to reach agreement which is in itself agreed to under the principle of FPIC, in keeping with the decision-making structures and criteria of the Indigenous Peoples in question, including traditional consensus procedures. Agreements must be reached with the full and effective participation of the authorized leaders, representatives or decision-making institutions as decided by the Indigenous Peoples themselves.

free, prior and informed consent (FPIC) under the 2007 United Nations Declaration on the Rights of Indigenous Peoples*

The most prominent international document to recognize the principle of free, prior and informed consent is the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP requires that free, prior and informed consent be achieved in any instance where Indigenous Peoples will be relocated from their from their lands or territories (Article 10), when legislative or administrative measures that may affect Indigenous Peoples are being adopted and implemented (Article 19), and whenever there may be storage or disposal of hazardous materials in the lands or territories of Indigenous Peoples (Article 29. UNDRIP also affords redress and restitution to Indigenous Peoples where their cultural, intellectual, religious and spiritual property has been taken without their free, prior and informed consent (Article 11) as well as where their lands have confiscated, taken, occupied, used or damaged without their free, prior and informed consent (Article 28).

UNDRIP does not propose an explicit definition of free, prior and informed consent.

Why?

In a conceptual sense, the meaning of “free, prior and informed consent” is reasonably forthright: it is the right of indigenous peoples to make choices about the use of their lands and resources freely and based on adequate information about the meaning of such choices. When considered from an operational perspective, however, this simple concept gives rise to several complex and challenging questions.

Citations:

[↑Ref. 1] United Nations Economic and Social Council. 2005. Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17-19 January 2005). [E/C.19/2005/3; Distr: General, 17 February 2005.] Endorsed by the UN Permanent Forum on Indigenous Issues at its Fourth Session (New York, 16-27 May 2005).

Document accessible from link at: http://social.un.org/index/IndigenousPeoples/MeetingsandWorkshops/InternationalWorkshoponFPIC.aspx.

[↑Ref. 2]United Nations Commission on Human Rights. 2005. “Standard-Setting: Legal Commentary On The Concept Of Free, Prior And Informed Consent” [[E/CN.4/Sub.2/AC.4/2005/WP.1]; Distr. Restricted, 14 July 2005], an expanded working paper offering guidelines to govern the practice of implementation of the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources submitted by Mrs. Antoanella-Iulia Motoc and the Tebtebba Foundation to the Working Group on Indigenous Populations, Sub-Commission on the Promotion and Protection of Human Rights at its Twenty-Third Session (18-22 July 2005).

Available online at: http://www2.ohchr.org/english/issues/indigenous/docs/wgip23/WP1.doc

[↑Ref. 3]  International Indian Treaty Council. 2008. “The UN Declaration on the Rights of Indigenous Peoples, Treaties and the Right to Free, Prior and Informed Consent - The Framework For a New Mechanism for Reparations, Restitution and Redress.” Submitted March 9, 2008 as a Conference Room Paper for the United Nations Permanent Forum on Indigenous Issues at its Seventh Session (New York 21 April - 2 May 2008).

Available for download at: http://www.un.org/esa/socdev/unpfii/documents/E_C19_2008_CRP_12.doc

[↑Ref. 4] Also presented to: the UN Expert Seminar on Indigenous Peoples’ Permanent Sovereignty over Natural Resources and their Relationship to Land in Geneva (January 2006); the 2nd United Nations Expert Seminar on Treaties, Agreements and Constructive Arrangements between States and Indigenous Peoples in Samson Cree Nation, Alberta Canada (November 2006); the Mining and Indigenous Peoples Issues Roundtable (Sydney Australia, January 2008) organized by the World Conservation Union (IUCN) and the International Council on Mining and Metals (ICMM); and most recently, the Symposium on the Implementation of the United Nations Declaration on the Rights of Indigenous Peoples co-hosted by the Assembly of First Nations and the First Nations Leadership Council, (Vancouver Canada, February 2008).