Tamang, Parshuram --- "An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices" [2005] AUIndigLawRpr 36; (2005) 9(2) Australian Indigenous Law Reporter 111
International Developments
An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices
Parshuram Tamang, Indigenous Expert (Member from Asia Region)
Document No PFII/2004/WS 2/8
United Nations Permanent Forum on Indigenous Issues
Workshop on Free, Prior and Informed Consent, New York 17–19 January 2005
I Context of the Principles of Free, Prior and Informed – Consent and Its Significance
1. Indigenous Peoples’ right to free, prior and informed consent (‘FPIC’) has been recognised by a number of intergovernmental organizations, international bodies, conventions and international human rights law in varying degrees and increasingly in the laws of State.[1]
2. Development projects and operations, legal and administrative regimes have had and continue to have a devastating impact on indigenous peoples, undermining their ability to sustain themselves physically and culturally. These threats have been documented by many studies and experiences that the Principles of FPIC of IPs [Indigenous Peoples] to development projects and plans that may affect them has emerged as the desired standard to be applied in protecting and promoting their rights in the developmental process.[2]
3. The United Development Programme (‘UNDP’) presented a report of the Inter-Agency Support Group on Indigenous Issues on FPIC at the Permanent Forum in May 2004 (E/C 19/2004/11). Some UN agencies have, to some extent, implemented FPIC on an ad hoc basis in line with their general guidelines or legal instruments and principles to enhance their partnership with Indigenous Peoples (‘IPs’). However, it states that there is no internationally agreed definition or understanding of the principle or mechanism for implementation.
4. The World Commission on Dam states that the principle of FPIC should guide the building of dams that may affect IPs and ethnic minorities. The World Bank’s Extractive Industries Review (‘EIR’) concluded that recognition and implementation of the rights of affected people to prior and informed consent is a necessary condition for extractive projects to be successful in contributing to poverty alleviation and sustainable development.
5. The Working Group on Indigenous Populations (‘WGIP’) set an agenda item on FPIC in July 2004[3] as a possible future standard setting activity (E/CN 4/Sub 2/AC 4/2003/3). The third session of the Permanent Forum on Indigenous Issues (‘UNPFII’) has decided 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.[4]
6. The purpose of this paper is to provide background information on how FPIC has been used in international and domestic legal instruments, to provide an interpretation of the principle of FPIC within the context of international human rights, environment and development law, as well as to derive guidelines on how the principle should be respected in activities relating to indigenous peoples in practice, and to recommend further policy framework improvements to strengthen indigenous peoples’ consent practices and harmonize its implementation among various agencies, disciplines and states.
II The Principle of Free, Prior and Informed Consent in International an Domestic Law Practices
A International Level
7. The International Labour Organisation’s Convention on Indigenous and Tribal Peoples in Independent Countries – 169/1989 refers to the principle of free and informed consent in the context of relocation of indigenous peoples from their land in its article 6. In articles 6, 7 and 15, the convention aims at ensuring that every effort is made by the States to fully consult with IPs in the context of development, land and resources.
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9. The UN Draft Declaration on the Rights of Indigenous People (‘UNDD’) (Sub-Commission resolution 1994/45, annex) is an emerging instrument on the rights of indigenous peoples that explicitly recognizes the principle of FPIC in its articles 1, 12, 20, 27 and 30. UNDD refers to the IPs’ right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including FPIC from state in connection with development and utilisation of surface and subsurface resources such as:
(a) Article 10 on forced relocation;
(b) Article 12 on culture and intellectual property;
(c) Article 20 vis-à-vis legislative and administrative measures taken by the States
(d) Article 27 with regards to indigenous peoples’ lands, territories and resources, and
(e) Article 30 with development planning.
10. The UN Committee on the Elimination of Racial Discrimination (‘CERD’) made observations and general recommendations on State obligations and indigenous rights under convention and calls upon States to ‘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’ (GR XXIII 51 concerning IPs adopted at the Committee’s 1235th Meeting, 1997).
11. In 2000, in its concluding observation on Australia’s report, the CERD reiterated,
its recommendation that the State party ensure effective participation by indigenous communities in decisions affecting their land rights, as required under article 5C of the Convention and the General Recommendations XXIII of the Committee, which stresses the importance of ensuring the ‘informed consent’ of indigenous peoples.[5]
12. In 2001, the UN Committee on Economic, Social and Cultural Rights on report of Columbia in relation to traditional lands (E/C 12/I/Add 74, para 12) in its concluding observation, noted ‘with regret that the traditional lands of indigenous peoples have been reduced or occupied, without their consent, by timber, mining and oil companies, at the expense of the exercise of their culture and the equilibrium of the ecosystem’. It subsequently urged ‘to consult and seek the consent of Indigenous peoples concerned prior to the implementation of timber, soil or subsoil mining projects and on any public policy affecting them’ (ibid, para 33).
13. The UN Workshop on Indigenous Peoples, Private Sector Natural Resource, Energy and Mining Companies and Human Rights, held in Geneva from 5–7 December 2001 discussed the principle of FPIC and recognized the need to have a universally agreed upon definition of the principle. The participants reached a basic 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).
14. The Convention on Biological Diversity 1992 (‘CBD’) in its article 8(J) calls on contracting States,
to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities ... and promote their wider application with the approval and involvement of the holders of such knowledge, innovation and practices.
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The Fifth Conference of Parties (‘COP’) to the CBD Decision V/16 expresses a firm commitment to the implementation of prior informed consent in its general principles:
access to traditional knowledge, innovation and practices of indigenous and local communities should be subject to prior informed consent or prior informed approval from the holders of such knowledge, innovations and practices.[6]
Decision V/16 further calls upon:
Parties to take measures to enhance and strengthen the capacity of indigenous and local communities to be effectively involved in decision-making related to the use of their traditional knowledge, innovations and practices relevant to the conservation and sustainable use of biological diversity subject to their prior informed approval and effective involvement.[7]
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17. The United Nations Conference on Environment and Development 1992 accepted IPs as a Major Group for the implementation of Agenda 21. The Rio Declaration, in Article 22, explicitly noted that:
Indigenous peoples and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
Agenda 21 and Forest Principles recognize: indigenous rights to land, intellectual and cultural property and to maintain their customary and administrative practices; the need for greater participation; the value of their involvement in forest management and conservation.
18. UNDP in preparation of the third session of the PFII surveyed a questionnaire among UN bodies, funds, programmes and specialized agencies in order to gather information about ‘how the principle of FPIC is understood and applied by the United Nations Programmes, Funds and agencies’ (E/C 19/2004/11). The report states that 10 out of 19 UN agencies implemented FPIC in their policies and practices and FPIC is embedded in the human rights framework. UNDP applies the principle in three areas: in the context of developmental planning and programming; on issues of resettlement; and on issues of indigenous knowledge.
B Regional Level
19. The Draft American Declaration on the Rights of Indigenous Peoples of the Organization of American States (‘OAS’) in its articles XVII AND XXIII states that the States obtain FPIC prior to the approval of any project affecting IPs lands, territories and resources, particularly in connection with the development, utilization or exploration of mineral, water or other resources.
20. The Inter-American Commission on Human Rights (‘IACHR’) has developed considerable jurisprudence on FPIC. The Commission has stated that the Inter-American human rights law requires ‘special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent’. In 2003, the IACHR stated that FPIC is generally applicable ‘to decisions by the State that will have an impact upon indigenous lands and their communities, such as the granting of concessions to exploit the natural resources of indigenous territories’. IACHR has precedence on FPIC as in the case of the Mayagna (Sumo) in Nicaragua in 2000, ‘State of Nicaragua is actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni community’.[8]
21. The Inter-American Development Bank’s (‘IADB’) 1990 Strategies and Procedures on Socio-Cultural Issues as Related to the Environment provides that ‘[i]n general the IDB will not support projects affecting tribal lands and territories, unless the tribal society is in agreement’.
FPIC is already included in the IADB’s policy on Involuntary Resettlement.
22. In 1998, the Council of Ministers of European Union adopted a Resolution entitled, Indigenous Peoples within the Framework of the Development Cooperation of the Community and Member States. It provides that ‘indigenous have the right to choose their own development paths, which includes the right to objects, in particular in their traditional areas’.[9]
This was reaffirmed in 2002 by the European Commission, which stated that the EU interprets this language to be the equivalent of FPIC.
23. The Association of Southeast Asian Nations Draft Agreement on Access to Biological and Genetic Resources (2000) in its preamble acknowledges:
The fundamental principle that the prior informed consent of the Member State and its indigenous peoples and local communities embodying traditional lifestyles would have to be secured before access can take place.[10]
C National Level
The Philippines, Malaysia, Australia, Venezuela, Peru, etc, have national legislation on the free, prior and informed consent of indigenous peoples for all activities affecting their lands and territories, for example.
24. Philippines: the Indigenous Peoples Rights Act (1997)[11] recognizes the right of FPIC of IPs for all activities affecting their lands and territories including:
(a) Exploration, development and use of natural resources;
(b) Research-bioprospecting;
(c) Displacement and relocation;
(d) Archaeological explorations;
(f) Policies affecting IPs such Executive order 263 (Community Based Forest Management);
(g) Entry of Military.
25. Nino, Bernal and Contreras write that Venezuela adopted a law on Biodiversity in May 2000. Article 39 provides the conservation of cultural diversity through the recognition and promotion of traditional knowledge (‘TK’) and Article 44 has provision that TK holders can oppose the granting of access to genetic resources or materials or TK projects in their territories or ask halt to the activities that they feared might affect their cultural heritage and biological diversity (Gupta 2000: 60) .
26. Malaysia, Sarawak State passed the Sarawak Biodiversity Centre Ordinance 1977, and then the 1998 Sarawak Biodiversity (Access, Collection and Research) Regulations. The Sarawak Council is responsible for regulating access, collection, research, protection, utilization, and export of the State’s biological resources. In 2004, the Sabah State of Malaysia in its ‘Framework for incorporating indigenous communities within the rules accompanying the Sabah Biodiversity Enactment 2000’ created a system rule that ensures indigenous peoples ‘shall all times and in perpetuity, be legitimate creators, users and custodians of traditional knowledge, and shall collectively benefit from the use of such knowledge’.
27. A Revised Peruvian proposal in August 2000 recognizes the FPIC for scientific research and cultural heritage as well as for the commercial exploitation of the resources (Gupta 2004: 60) and right of FPIC recognized according to traditional systems of representation and customary law (Law 27811).
28. In five states of Australia, consent has been obtained through statutory indigenous-controlled Land Councils in the mining area for more than 30 years. These consent procedures were reviewed by the National Institute of Economic and Industry Research in 1999, which found that they had been successful in safeguarding Aboriginal control over Aboriginal land and have also provided a process of negotiation by which an increasing proportion of Aboriginal land in the Territory has been made available for mineral exploration.[12]
III Towards a Common Understanding of the Principle of Free, Prior and Informed Consent in Activities Relating to Indigenous Peoples
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49. Legislative and administrative measures, development projects planning and all activities affecting indigenous peoples’ culture, history, traditional knowledge, lands, territories, natural resources, genetic resources, climate, environment, arts and artefacts, historical and sacred sites require FPIC.
50. A set of core principles and elements could be as a practical tool for providing technical guidance to policy makers and actors, whether in national or local government, the private sector, multinationals, indigenous and local communities and other organizations; and whether in regional or international level or UN agencies at interagency level – country offices in CCA, UNDAF and MDGS.
51. The following elements, but shall not be limited to, are a set of core principles of FPIC in relation to indigenous peoples:
i. The principle of FPIC recognizes IPs’ inherent and prior rights to their lands, territories and resources and respects their legitimate authority and requires processes that allow and support meaningful choices by indigenous peoples about their development path (Tebtabba).
ii. The principle of FPIC is central to IPs’ exercise of their right to self-determination with respect to developments affecting them.[13]
iii. Interpretation of the principle of FPIC should be embedded in international human rights instruments, conventions and in UNDD on the rights of IPs, which provides a comprehensive set of indigenous peoples rights.
iv. The principle of FPIC should be implemented based on human rights approach.
v. Participation of indigenous peoples is key to the design, decision implementation and evaluation of any activity in providing FPIC.
vi. FPIC is an evolving tool and its further development is on going; it could be adapted to different realities and ecosystems.
52. Contesting claims between States and other stakeholders including IPs should be resolved and have clear institutional arrangements (mechanism) for monitoring compliance and redress of grievances.
53. The principle of FPIC is a right of indigenous peoples and obligatory methodology for the States and project developers in activities relating to indigenous peoples.
54. FPIC should be recognized legally in national legislation and FPIC should be legally enforceable through the courts.
55. Interpretation of the principle of FPIC should be embedded in international human rights instruments, conventions and in draft declaration on the rights of IPs, which provides a comprehensive set of indigenous peoples’ rights.
56. Indigenous and local communities’ Protocol back up by the customary law and practices can guide indigenous communities in asserting their rights to FPIC (Malaysia).
UNPFII to commission case studies to explore the possibility of developing international legal frameworks on the principles of FPIC in order to elaborate and harmonize the implementation of the UN Agencies in relation to indigenous peoples and local communities.
[1] FPP Briefing Oaper, ‘indigenous peoples’ right to free, prior and informed consent and the World Bank’s Extractive Industries Review’.
[2] Mary Robinson, ‘Bridging the gap between human rights and development: From Normative Principles to Operational Relevance’, lecture delivered on 3 December 2001; Report of Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rudolfo Stavenhagen, submitted pursuant to Commission resolution 2001/57, UN Doc E/CN.4/2002/97, para 56 (E/CN.4/2003/90); ‘Striking a Better Balance: The World Bank Group and Extractive Industries’, Final Report of the Extractive Industries Review, Vol 1, December 2003, 41.
[3] 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 that would serve as a framework for the drafting of a legal commentary by the Working Group on this concept, submitted by Antoanella-Iulia Motoc and the Tebtebba Foundation, E/CN.4/Sub.2/AC.4/2004/4.
[4] Draft Decision of the Third Session of UNPFII, ECOSC, Official Records 2004, Supplement No 23.
[5] Marcus Colchester, ‘Forest Industries, Indigenous Peoples and Human Rights’ (2001); Fergus Mackey, ‘A Guide to Indigenous Peoples’ Rights in the Inter-American Human Rights System’ (2001).
[6] Decision V/16, Annex: Programme of Work, 1 General Principles 5, 139–42.
[7] ‘Striking a Better Balance: The World Bank Group and Extractive Industries’, Final Report of the Extractive Industries Review, Vol 1, December 2003, 41.
[8] Fergus Mackey, ‘A Guide to Indigenous Peoples’ Rights in the Inter-American Human Rights System’, (2001).
[9] Speaking Out International Conference (2002) on the European Union’s Indigenous Peoples Policy within the Framework of the Development Cooperation of the Community and Member States, organized jointly by International Alliance of Indigenous and Tribal Peoples of the Tropical Forests, Rain Forest Movement UK and European Commission, Brussels.
[10] Framework for incorporating indigenous communities within the rules accompanying the Sabah Biodiversity Enactment 2000, Policy Paper, November 2004.
[11] Office of the President, National Commission on Indigenous Peoples, Administrative Order No. 1, Rules and Regulations Implementing Republic Act No 8371, otherwise known as, ‘The Indigenous Peoples’ Rights Act of 1997’.
[12] Fergus Mackay at the ED briefing on FPIC, World Bank, June 2004.
[13] Article 371 G reads: ‘notwithstanding anything in this constitution – (a) no Act of Parliament in respect of – (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedures, (iii) administration of civil and criminal justice involving decisions according to Mizo customary law, (iv) ownership of land, shall apply to the state of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides’. The aforesaid provision was inserted through the Constitution (53rd Amendment) Act, 1996 following an accord between the Government of India and the Mizo National Front, that was signed on 30 June 1986, ending two decades of insurgency and militarisation.