Free , Prior And Informed Consent Research Articles

Foreign Investments Meet Free, Prior and Informed Consent (FPIC) – Whose Sovereignty?

The last decade of the 20th century witnessed the parallel rise in importance of investor protection and indigenous rights. Despite the temporal proximity, both fields developed without any significant consideration for each other. In the field of natural resource development this has the potential to result in a number of conflicts. This is particularly evident in light of the (re-)emergence of sovereign claims by indigenous peoples to ownership and control over natural resources and land which they use and inhabit. In this context, the evolved right to free, prior and informed consent (FPIC) can be seen as an instrument to procedurally implement the right to self-determination of indigenous peoples, but also as bearing potential to defi ne the partnership between indigenous peoples and their home states when it comes to the question who can authorize third parties – e.g. a foreign investor/lender – to engage in resource exploration and exploitation projects on indigenous territory or having an effect thereupon.

Adapting Free, Prior, and Informed Consent (FPIC) to Local Contexts in REDD+: Lessons from Three Experiments in Vietnam

Free, prior, and informed consent (FPIC) is a means of ensuring that people’s rights are respected when reducing emissions from deforestation and forest degradation, and enhancing forest carbon stocks (REDD+) projects are established in developing countries. This paper examines how FPIC has been applied in three projects in Vietnam and highlights two key lessons learnt. First, as human rights and democracy are seen as politically sensitive issues in Vietnam, FPIC is likely to be more accepted by the government if it is built upon the national legal framework on citizen rights. Applying FPIC in this context can ensure that both government and citizen’s interests are achieved within the permitted political space. Second, FPIC activities should be seen as a learning process and designed based on local needs and preferences, with accountability of facilitators, two-way and multiple communication strategies, flexibility, and collective action in mind.

Indigenous Peoples, International Law, and Extractive Industry Contracts

The extractive industry has contributed to the development of international law since colonial times. Contracts between states and extractive companies largely drive this global industry. This essay situates extractive industry contracts involving Indigenous peoples, long term actors who have significantly informed the development of international law, within the context of international law. While these contracts are usually analyzed from domestic perspectives, they are impacted by international norms and, as developing transnational practices, even have the potential to show ways ahead in international law. As regards engagement with Indigenous peoples, contracts, which are typically regarded as private instruments, have significant public ramifications. This is especially the case where states, Indigenous peoples, and transnational corporations (TNCs) are involved and where internationally recognized principles relating to Indigenous rights, notably free, prior, and informed consent (FPIC) are implicated.

Sovereignty as Trusteeship and Indigenous Peoples

AbstractWe explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous peoples’ sovereignty within the trusteeship model. Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent (FPIC). The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that they are a move in the right direction, and that implicitly they represent international law’s recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors.

Multi-Level Policy Dialogues, Processes, and Actions: Challenges and Opportunities for National REDD+ Safeguards Measurement, Reporting, and Verification (MRV)

REDD+ social safeguards have gained increasing attention in numerous forums. This paper reviews the evolution of multi-level policy dialogues, processes, and actions related to REDD+ social safeguards (e.g., Cancun Safeguards 1–5) among policy makers, civil society organizations, and within the media in Brazil, Indonesia and Tanzania, three countries with well advanced REDD+ programs. We find that progress on core aspects of social safeguards is uneven across the three countries. Brazil is by far the most advanced having drafted a REDD+ social safeguards policy. Both Brazil and Indonesia have benefited from progress made by strong sub-national entities in the operationalization of REDD+ safeguards including free prior and informed consent (FPIC), participation, and benefit sharing. Tanzania has weakly articulated how social safeguards will be operationalized and has a more top-down approach. We conclude that in all three countries, measuring, reporting and verifying progress on social safeguards is likely to be a complex issue. Stakeholders with vested interests in REDD+ social safeguards operate in polycentric rather than nested systems, suggesting that aggregation of information from local to national-scale will be a challenge. However, polycentric systems are also likely to support more transparent and comprehensive safeguards systems. Clear direction from the international community and financing for REDD+ safeguard MRV is essential if REDD+ social safeguards are to be meaningfully integrated into forest-based climate mitigation strategies.

Understanding bioenergy conflicts: Case of a jatropha project in Kenya's Tana Delta

In recent years, conflicts related to tenure, management and utilization of natural resources, in particular bioenergy conflicts, are becoming increasingly common. Many bioenergy conflicts are related to plantation projects seeking to capitalize on the opportunity to profit from a combination of factors, centred on the enabling environment for biofuel plantation establishment found in many developing countries. This study analyses these and other related issues in a conflict in the Tana Delta in Kenya. The conflict is centred on a proposed 65,000ha Jatropha curcas plantation for biodiesel by the Canadian company Bedford. Ethical Analysis, a conflict management and research tool, was employed to better understand the underlying conflict causes. Shortcomings in the technical feasibility studies and participatory planning processes were revealed, including a poor understanding of the different interests and values with regard to land tenure and traditional rights. While the adoption of Free, Prior and Informed Consent (FPIC) is proposed, also capacities and the regulatory framework need to be strengthened to improve transparency, coordination, impact assessment and investment security. The study proposes ways to manage the ongoing conflict and discusses its implications for bioenergy governance.

Improving the effectiveness of impact assessment pertaining to Indigenous peoples in the Brazilian environmental licensing procedure

The number of environmental licence applications for projects affecting Indigenous peoples in Brazil has increased since the implementation of a major infrastructure program (Programa de Aceleração do Crescimento) in 2007. This increase has caused problems for Brazilian agencies involved in environmental licensing procedures (IBAMA, FUNAI and others). We analyze the Brazilian environmental licensing procedure for situations involving Indigenous peoples, Maroons (Quilombolas) or other traditional communities in order to identify potential improvements for Brazil and potentially other countries. Although Brazilian procedures are consistent with international best practice in environmental licensing, in practice social impacts are inadequately addressed, mitigation measures are poorly implemented, and there is a lack of enforcement and compliance. The paper is based on document analysis and interviews with key actors in governmental and non-governmental organizations and Indigenous leaders. We suggest that Free, Prior and Informed Consent (FPIC) processes need to be conducted at the earliest stages of project planning, and that Indigenous peoples should actively participate in impact assessment, monitoring and evaluation processes. In order to achieve a social licence to operate, there needs to be full recognition of traditional knowledge and acceptance of Indigenous values and concepts. We also recommend increased involvement of social experts and mediators as well as improved accountability, enforcement and grievance mechanisms in the licensing process.

Experience of Nepali Indigenous Peoples on Free, Prior and Informed Consent (FPIC)

DOI: http://dx.doi.org/10.3126/jfl.v11i2.8626 Journal of Forestry and Livelihood Vol.11(2) 2013 82-86

Culture, law, risk and governance: contexts of traditional knowledge in climate change adaptation

Traditional knowledge is increasingly recognized as valuable for adaptation to climate change, bringing scientists and indigenous peoples together to collaborate and exchange knowledge. These partnerships can benefit both researchers and indigenous peoples through mutual learning and mutual knowledge generation. Despite these benefits, most descriptions focus on the social contexts of exchange. The implications of the multiple cultural, legal, risk-benefit and governance contexts of knowledge exchange have been less recognized. The failure to consider these contexts of knowledge exchange can result in the promotion of benefits while failing to adequately address adverse consequences. The purpose of this article is to promote awareness of these issues to encourage their wider incorporation into research, policy, measures to implement free, prior and informed consent (FPIC) and the development of equitable adaptation partnerships between indigenous peoples and researchers.

Prior Consultations in Plurinational Bolivia: Democracy, Rights and Real Life Experiences

While the Bolivian ‘post’ consultation about the contested construction of a highway through the TIPNIS has received a lot of attention, very little is known about the 27 prior consultations that have been concluded between June 2007 and February 2012 in its hydrocarbon sector. This article focuses on these procedures and presents three emblematic cases in more detail. It identifies frequent shortcomings of consultation practices like the ‘information hurdle’, irregularities, the limited decision-making power of affected local populations and the lack of transparency regarding the compensation payments. The article argues that consultations could be improved by complementing international human rights instruments on indigenous rights with insights from deliberative theories. It concludes that as long as local ideas of self-determined development remain subordinated to prioritized extractive industries, the right to free, prior and informed consent (FPIC) will remain distant, even in a plurinational state like Bolivia.

Community Participation and Benefits in REDD+: A Review of Initial Outcomes and Lessons

The advent of initiatives to reduce emissions from deforestation and degradation and enhance forest carbon stocks (REDD+) in developing countries has raised much concern regarding impacts on local communities. To inform this debate, we analyze the initial outcomes of those REDD+ projects that systematically report on their socio-economic dimensions. To categorize and compare projects, we develop a participation and benefits framework that considers REDD+’s effects on local populations’ opportunities (jobs, income), security (of tenure and ecosystem services), and empowerment (participation in land use and development decisions). We find material benefits, in terms of jobs and income, to be, thus far, modest. On the other hand, we find that many projects are helping populations gain tenure rights. A majority of projects are obtaining local populations’ free, prior, and informed consent (FPIC). However, for those projects interacting with multiple populations, extent of participation and effects on forest access are often uneven. Our participation and benefits framework can be a useful tool for identifying the multi-faceted socio-economic impacts of REDD+, which are realized under different timescales. The framework and initial trends reported here can be used to build hypotheses for future REDD+ impact evaluations and contribute to evolving theories of incentive-based environmental policy.

Exploring the Nuances, Ethicality and Functionality of ‘Consent’: Prior Informed Consent as a Legal Mechanism to Protect Malaysia’s Indigenous Communities’ Rights to Genetic Resources and Associated Traditional Knowledge

Indigenous communities worldwide face a new type of capitalist accumulation by the outside world – not only are lands and livelihoods illegitimately seized, as has been the case throughout history, but today indigenous innovations and knowledge systems are commoditized and ascribed commercial value as they present a biotechnological and pharmaceutical marketplace. Researchers, corporations, and governments seek access to and ownership over native plant resources and their associated traditional knowledge, and often do so unjustly, unlawfully, and violently. Thorough and meaningful consent processes for the utilization of such knowledge are rarely undertaken by access-seekers, and when they are, they often have many problems. Governments additionally sideline and marginalize indigenous individuals from the political process that governs these resources. Methodologically, this study utilizes scholarly research to analyze current formal and informal frameworks used to protect such traditional knowledge systems, posing a comparative analysis of the international, national, and grass roots frameworks. It focuses largely on the legal concept of ‘Free, Prior, and Informed Consent (FPIC),’ its historical foundations, ethical boundaries, nuances, and the potential functionality of a mandatory FPIC policy governing indigenous biodiversity matters within Malaysian national law. The research concludes by detailing visits to and interviews with four indigenous communities in the East Malaysian state of Sarawak and in Perak, Peninsular Malaysia, sharing locals’ concerns, hopes, and methods for knowledge protection, and recommendations for indispensable legislative action to be taken by both the state and federal governments of Malaysia and other biodiversity-rich countries.

Social impact assessment: the state of the art

Social impact assessment (SIA) is now conceived as being the process of managing the social issues of development. There is consensus on what ‘good’ SIA practice is – it is participatory; it supports affected peoples, proponents and regulatory agencies; it increases understanding of change and capacities to respond to change; it seeks to avoid and mitigate negative impacts and to enhance positive benefits across the life cycle of developments; and it emphasizes enhancing the lives of vulnerable and disadvantaged people. We analyse the strengths, weaknesses, opportunities and threats facing SIA. We assert that the SIA community needs to revisit core concepts, such as culture, community, power, human rights, gender, justice, place, resilience and sustainable livelihoods. It is incumbent on SIA practitioners to educate proponents, regulators and colleagues about these concepts, and to embed them into practice norms. Stronger engagement with the emerging trends of free, prior and informed consent (FPIC); human rights impact assessment; social performance standards; supply chain management; governance; local content and economic development will improve the relevance and demonstrable value of SIA to all stakeholders.

Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: developments and challenges ahead

The indigenous rights regime fully recognises the special relationship that indigenous peoples have with their ancestral lands. While it is clear that, before implementing development projects on these lands, states must consult the indigenous peoples concerned, doubts remain as to whether they also have the legal obligation to obtain their consent before taking any such action. Determining the actual meaning of the principle of free, prior and informed consent (FPIC) is crucial to answer this question. This article will argue that a flexible approach to FPIC is gaining increasing recognition internationally. This understanding of FPIC has its normative foundations in the UN Declaration on the Rights of Indigenous Peoples and has been further elaborated by the Inter-American Court of Human Rights.

Operationalizing Free, Prior, and Informed Consent in the Extractive Industry Sector? Examining the Challenges of a Negotiated Model of Justice

Free, prior, and informed consent (FPIC) is a key principle being promoted in an attempt to reshape a broad family of governance regimes designed to address the local consequences of extractive industry development in indigenous territory. This article explores the development of the principle of FPIC and the challenges that it presents to conventional forms of governance. FPIC is examined as a form of negotiated justice that aims to produce regulatory decisions through horizontal and decentralized forms of engagement. The article seeks to develop and clarify issues in building a critical research agenda on the operationalization of FPIC.

The Return of the Native

The Return of the Native