The right to free, prior, and informed consent (FPIC): Reflections on experiences of two Indigenous communities in northern regions of Canada and Chile [BOOK CHAPTER]
Terry Mitchell, Courtney Arseneau, José Aylwin, Darren Thomas
Decolonizing Law [Routledge 2021]
In this chapter, we focus on the ongoing pressures faced by Indigenous communities in responding to growing global investments in extractive activities such as mining. In highlighting the obligations of states and businesses to adhere to consultation processes and practices of the right to free, prior, and informed consent (FPIC), we provide a comparative analysis of the barriers faced by Indigenous Peoples in mining affected communities in northern Ontario (Canada) and in northern Chile. We also call attention to the extraterritorial responsibilities of Canada’s mining investments in Chile, presenting the situation of global extractive practices as a new wave of colonialism known as extractive imperialism. We share reflections from our work across the two case study sites, including a workshop that brought together leaders from both regions to share experiences, strategies of resistance, and Indigenous perspectives of consultation and FPIC from across the Americas. We discuss key Pan-American findings of (1) a lack of consultation and information; (2) inducement and division; and (3) environmental impacts as parallel experiences across both regions. We conclude with reflections on decolonial approaches to consultation and policy recommendations for the implementation of FPIC and the monitoring of Indigenous rights in Canadian mining activities across the Americas.
Who Are the Métis? The Role of Free, Prior and Informed Consent in Identifying a Métis Rights-Holder [BOOK CHAPTER]
Indigenous-Industry Agreements, Natural Resources and the Law [Routledge 2020]
Using free, prior and informed consent as a framework for analysis, this chapter explores issues related to the communities involved in Indigenous-industry agreements by relying on the particularly poignant experience of the Métis. A major issue that Indigenous-industry agreements encounter is the identification of the Indigenous party to the agreement. This chapter analyzes bases for identifying the Métis rights-holder for the purposes of consultation and consent. It argues that the Métis Nation of Ontario has developed an approach to consultation and that approach ensures that the Métis Nation of Ontario’s consent to Indigenous-industry agreements is fully informed. This approach also responds to some of the questions that impact Indigenous-industry agreements including questions regarding persons who qualify as rights-holders and to whom the duty to consult and accommodate is owed, how to determine the geographic scope of the rights-holder, and persons who are entitled to represent the rights-holder during consultation about the right.
Our land is banked: forest rights, consent and the invention of a legal exception as land banks
International Journal of Human Rights, 3 February 2021
Land banks are a newly created administrative mechanism managed by the Odisha Industrial and Infrastructure Corporation (IDCO) and the Revenue and Disaster Management Department. Their purpose is to provide large parcels of land to industries with minimal procedural hassles in the acquisition. Thus, the administrative authorities put in place an intricate web of legal interpretations that enable it to bypass due process requirements. The legal landscape in India’s forests transformed with the passing of the Forest Rights Act,2006 in the direction of democratisation and participation of forest-dwelling communities. An essential part of this legal framework was the right to free, prior, and informed consent of the village assembly. In this paper, through case studies and examples I argue that a space of exception is created within the law through the mechanism of land banks to prevent the applicability of the consent provision. This sophisticated legal interpretive exercise by the administrative authority results in the violation of the human right to free, prior, and informed consent of forest-dwelling communities in Odisha.
Indigenous Peoples’ Free, Prior and Informed Consent (FPIC) and the World Bank Safeguards: Between Norm Emergence and Concept Appropriation
Stéphanie de Moerloose
World Comparative Law, 2020; 53(3) pp 223-244
The question of the consent of indigenous peoples is at least as old as colonization. Indeed, the consent of indigenous peoples was already an issue at the heart of treaty-making between colonial settlers and indigenous peoples. The issue of indigenous peoples’ consent, understood as their Free, Prior and Informed Consent (FPIC), has been re-emerging and gaining acceptance internationally in international Human Rights law over the last 30 years. When the new World Bank safeguards were adopted in 2016, one of the most discussed topics during the consultation rounds had been the integration in the safeguards of the concept of the FPIC of indigenous peoples, as it had been notoriously absent from the previous safeguards. Finally, FPIC was made part of the new safeguards. This paper first maps the concept of FPIC under international law from a postcolonial perspective. Then, it attempts to analyze the processes of operationalization of the concept by the World Bank in the new safeguards, drawing on Human Rights and on law and development literature. The paper argues that there is a tension between the re-emergence of FPIC as a customary norm and the fragmentation of the interpretations of the concept of consent by different actors. The operationalization of the concept of FPIC, understood as a negotiated process rather than a process of self-determination, may in fact limit its remedial objective and diminish its quality as a resistance tool.
Controversies of consent: the contradictory uses of indigenous free, prior, and informed consultation and consent in Panama [DISSERTATION]
Marian Ahn Thorpe
Rutgers University; School of Graduate Studies, October 2020
This dissertation examines the right of Free, Prior, and Informed Consultation and Consent (FPIC) in western Panama, where Ngäbe Indigenous communities have long fought to protect their land from copper mines, hydroelectric projects, and other forms of development. Drawing on sixteen months of ethnographic and legal research between 2013 and 2016, I demonstrate that, like other forms of multicultural recognition, FPIC can be used by states to manage Indigenous dissent and rights-wash contentious projects. This management can take place through careful attention to the wording or procedural details of FPIC policies; or, it can occur through the ways in which consent-seekers and consent-givers exploit or circumvent conflict-prone community decision-making processes. However, while FPIC can be used to limit Indigenous rights, I also show how various groups of Ngäbe still defy and work within these constraints. More broadly, I show that the Western liberal conception of consent as autonomous free choice obscures ways in which consent embeds subjects in relations of power. By framing consent not as a sign of freedom but as a sign of power relations, I underscore how FPIC and other forms of multicultural recognition join together Indigenous peoples and states to collaboratively create the multicultural state.
Dissenting voices in a consenting village: lessons from implementation of free, prior and informed consent at a REDD+ pilot in Tanzania
K Mukisa, D M Tumusiime, C Webersik, E T Liwenga, J R S Tabuti
International Forestry Review, March 2020; 22(1) pp 120-131
Free, prior and informed consent (FPIC) is a key institutional tool in meeting social safeguards. Its implementation ensures respect of the local people’s rights in an intervention. This paper presents a case of FPIC implementation at a REDD+ pilot site. Data were obtained through key informant interviews and focus group discussions with proponents and village members of the Lindi REDD+ project. Findings indicate that the inclusive approach to FPIC by taking the consultations to the hamlet level did not deliver a flawless process. The consent decision was reached by a majority vote, not consensus. There was some dissent, prompting the early establishment of project implementation committees. Consent was obtained, though it was not absolutely free, prior and informed. Future REDD+ projects should consider having FPIC as an independent and earlier process, separate from the main implementation of the project in order to uphold local peoples’ rights in a less anxious process.
Articulating ‘free, prior and informed consent’ (FPIC) for engineered gene drives
Dalton R. George, Todd Kuiken and Jason A. Delborne
Proceedings of the Royal Society B, 11 December 2019; 286 (1917)
Recent statements by United Nations bodies point to free, prior and informed consent (FPIC) as a potential requirement in the development of engineered gene drive applications. As a concept developed in the context of protecting Indigenous rights to self-determination in land development scenarios, FPIC would need to be extended to apply to the context of ecological editing. Without an explicit framework of application, FPIC could be interpreted as a narrowly framed process of community consultation focused on the social implications of technology, and award little formal or advisory power in decision-making to Indigenous peoples and local communities. In this paper, we argue for an articulation of FPIC that attends to issues of transparency, iterative community-scale consent, and shared power through co-development among Indigenous peoples, local communities, researchers and technology developers. In realizing a comprehensive FPIC process, researchers and developers have an opportunity to incorporate enhanced participation and social guidance mechanisms into the design, development and implementation of engineered gene drive applications.
Towards an Indigenous-Informed Relational Approach to Free, Prior, and Informed Consent (FPIC)
Terry Mitchell, Courtney Arseneau, Darren Thomas, Peggy Smith
The International Indigenous Policy Journal, October 2019; 10(4)
International and domestic rights frameworks are setting the stage for the full recognition of Indigenous Peoples’ rights in Canada. However, current political promises to restore Indigenous relations, to reconcile historic wrongs, and to foster mutual prosperity and well-being for all people within Canada remain woefully unfulfilled. Indigenous Peoples continue to call for full engagement with emerging Indigenous rights frameworks such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its principles of free, prior, and informed consent (FPIC). This article discusses the key findings from a multi-year university–community research partnership with Matawa First Nations in which we collaboratively seek to advance understanding of consultation processes and Indigenous experiences of and perspectives on FPIC. The article, based on several years of dialogue and interviews and a two-day workshop on FPIC, offers insight into Indigenous perspectives on FPIC advancing an Indigenous-informed relational approach to consultation and consent seeking.
From Individual to Collective Consent: The Case of Indigenous Peoples and UNDRIP
International Journal on Minority and Group Rights, 13 September 2019
Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is a coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination.
Editor’s note: The UNDRIP is the United Nations Declaration of the Rights of Indigenous Peoples
The Transformative Potential of Indigenous-Driven Approaches to Implementing Free, Prior and Informed Consent: Lessons from Two Canadian Cases
Martin Papillon, Thierry Rodon
International Journal on Minority and Group Rights, 13 September 2019
While it is increasingly recognised as a core element of the emerging international Indigenous rights regime, the implementation of the principle of free, prior and informed consent (FPIC) remains contested. As the comparative literature shows, if and how fpic is implemented depend both on the institutional context and on the agency of actors involved. Faced with deep power asymmetries and strong institutional resistance to their understanding of fpic as a decision-making right, a number of Indigenous groups in Canada have taken advantage of the uncertain legal context to unilaterally operationalise fpicthrough the development of their own decision-making mechanisms. Building on two case studies, a mining policy adopted by the Cree Nation of James Bay and a community-driven impact assessment process established by the Squamish Nation, this article argues Indigenous-driven mechanisms can be powerful instruments to shape how fpic is defined and translated in practice.