MAKING FREE, PRIOR & INFIRMED CONSENT A REALITY Natalie Lowrey, Communications coordinator, Deep Sea Mining campaign http://deepseaminingoutofourdepth.org I will be using the term or concept 'Indigenous Peoples' throughout the presentation. There is no formal universal definition of the term Indigenous given that a single definition will inevitably be either over-or under-inclusive but I do want to acknowledge that many communities in Pacific Islands nations don't necessarily identify with the term 'Indigenous' and that they have the right to identify as they choose. FREE, PRIOR, AND INFORMED CONSENT Free, Prior and Informed Consent means respect for the right of self-determination, part of which is the right to collective decision-making. It embodies and is fundamental to, recognition of the sovereignty and rights of Indigenous Peoples over their land, territories and resources and the need to be consulted in a manner that is in keeping with the people's own indigenous culture. It is a collective right of Indigenous Peoples to decide what happens to their lands and natural resources, to control their own future and the future of their people. This statement talks about the power to negotiate and highlights that this may therefore be an ongoing process. It is part of a process of operationalising the right of self-determination by guaranteeing respect for their decision-making processes and their associated right to accept or reject a project that will affect them. Free, Prior and Informed Consent is not new. It evolved from human rights discussions on development where it was agreed that everyone has the right to determine their own development. This can be interpreted as being able to say “yes” or “no” to any project proposed or external development. Free, Prior and Informed Consent has been identified as an important social safeguard for mining and infrastructure projects for many years, especially in the context of protecting indigenous peoples’ rights and territories. UNDERSTANDING FREE, PRIOR, AND INFORMED CONSENT Each part of the term has important meanings for a community. The following is an explanation of what each term means: Respecting the right to FPIC cannot be reduced to a process with boxes that can be ticked as they are completed. The right to FPIC is part of peoples’ collective right to self-determination, which includes the right to determine what type of process of participation, consultation, and decision- making is proper for them and this includes their own time-frame to make these decisions. By recognising the right of indigenous peoples and local communities as owners and managers of their customary territory, FPIC assures them a decisive voice at every stage of development planning and implementation of projects that affect them. The requirement for “informed consent” implies that for consent to be given, an informed understanding of the potential impacts is required. This requirement must apply to all stages of the project life-cycle, from concession application to project closure. 1
FPIC is the minimum standard for the involvement of indigenous peoples in decision-making processes about large-scale projects and is necessary to guarantee that the negative impacts of mining will be avoided, and that indigenous peoples’ economic, social and cultural rights will be protected in situations where mining projects are operating on or near indigenous land and waters WHAT FPIC IS NOT What is the difference between Free, Prior, and Informed Consent and stakeholder consultation and negotiation? - Consent is an outcome of a process. The process may involve consultation and negotiation, but consent itself is an opportunity to say ‘yes’ or ‘no’ to a proposal or project. - Consent may be required at several points in a project cycle, and when consent is not reached, negotiation will be required. - Consultation involves facilitating a process to both inform and receive feedback from the people about the proposal; negotiation is where conditions are proposed and compromises are made by different parties. - Consent remains the point at which people have the power to say ‘yes’ or ‘no.’ - FPIC entitles indigenous peoples to determine the outcome of decision-making that affects them — it is not merely a right to be consulted about projects that others will ultimately make decisions on The Right to VETO Communities have the right to veto. This means that they indigenous peoples can reject a proposed project from the outset. Given that refusal to engage in consultations constitutes an exercise of their right to self-determination, participation in such consultations should not be assumed to be a mandatory requirement. Mandatory participation in consent seeking processes would be inconsistent with the notion of seeking voluntary consent in a manner that is free of coercion. FREE, PRIOR, AND INFORMED CONSENT AND ITS LEGAL BASIS IN INTERNATIONAL LAW International Standards The contemporary requirement for Indigenous People's Free, Prior, and Informed Consent is derived from the rights of Indigenous Peoples' which are recognised under international and regional human rights treaties and declarations. It is primarily derived from the applicability to Indigenous Peoples' of the right to self-determination affirmed in the International Human Rights Covenants. Contemporary international human rights law and other standards constitute a framework of obligations which establishes the MINIMUM acceptable standards of conduct for all actors, including States and corporations in the context of projects within indigenous territories. 2
Free, Prior, and Informed Consent is recognised in … When affirming that the requirement of Free, Prior and Informed Consent flows from other rights the treaty bodies responsible for these covenants have increasingly framed the requirement in light of the right to self-determination. The United Nations Declaration on the Rights of Indigenous Peoples promotes the right of Indigenous Peoples to give or deny their Free, Prior, and Informed Consent for projects that affect them, their land and natural resources. Following the adoption of the UN Declaration of the Rights of Indigenous Peoples in 2007 there has been increased emphasis on the requirements to obtain Free, Prior, and Informed Consent in relation to extractive and other projects impacting on Indigenous Peoples An example of this is the fact that over thirty percent of the cases addressed by Committee on the Elimination of Racial Discrimination (CERD) in the context of its Early Warning and Urgent Action procedure have involved issues related to the failure to obtain Indigenous Peoples' Free, Prior, and Informed Consent in relation to extractive projects. Free, Prior, and Informed Consent is both a right in itself, and can help protect other human rights including rights to property, culture, religion, livelihood, health and physical wellbeing. Duty of States UN Declarations are not legally binding. However, they represent the commitment of governments to abide by certain principles and standards, and are considered to be ‘normative’. For example, the UN Universal Declaration of Human Rights is not a binding treaty but over time has come to have enormous force and influence in international human rights law. Legislation no matter how clear it is does not ensure real Free, Prior and Informed Consent if government is able to exert pro-mining pressure on the agencies involved in the process of obtaining consent. Side Note: Free Prior and Informed Consent is consistent with relevant parts of Papua New Guinea’s National Goals and Directive Principles. Responsibility of Companies The Special Rapporteur on the Rights of Indigenous Peoples' has explained that consultation procedures must be agreed before companies and State enter into agreements in relation to proposed extractive projects. Free Prior and Informed Consent is arguably a necessary component of the Corporate Social Responsibility agenda for the extractive industry, as it acts as both a fundamental tool of good engagement practice and aides to mitigate the social risk imbedded in projects that neighbour Indigenous Peoples. Without the consent of affected communities, mining companies face potential legal, reputational and financial risks. There is much evidence including reports that address the positive correlation between the performance of companies and their respect for Indigenous Peoples' 'right to withhold consent to development' in or near their territories. Despite multinational mining companies placing increasing emphasis on engagement with 3
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