A mechanism to enforce Free, Prior and Informed Consent (FPIC)

Introduction

We are excited to announce the public release of our Free, Prior and Informed Consent (FPIC) web tool. This resource provides indigenous nations worldwide with a clear understanding of what FPIC is and how to use it when dealing with extractive industries operating or seeking to operate on their ancestral lands.

Currently, around the world, countless extractive industries are operating on indigenous territories seeking to exploit and profit from the extraction of natural resources from native lands. In the vast majority of cases, these industries have not consulted with the indigenous peoples occupying those territories or bothered to consider the myriad ways in which their operations can dramatically destabilize the native communities in the areas in which they are operating.

FPIC seeks to rectify this situation by establishing a common practice by which extractive industries must first consult with the indigenous nations upon whose land they seek to operate and negotiate a mutually beneficial arrangement.

In 1989 and 1994, two international laws were approved, providing a peaceful process between nations and states to obtain free, prior, and informed consent (commonly referred to as FPIC) through mutually beneficial negotiations. These laws are the UN International Labor Organization 169 – Indigenous and Tribal Peoples Convention (1989) and the International Covenant on the Rights of Indigenous Nations – 1994 (ICRIN). Officially ratified by states (ILO), and indigenous nations (ICRIN), the time has come to implement the laws of free, prior, and informed consent.

However, although the need for FPIC has been recognized worldwide and is written into international law, there is currently no enforcement mechanism. The result of this has been that FPIC has largely been ignored and throughout the world, violent conflicts continue to erupt between indigenous peoples and corporations and states seeking to exploit their lands.

As is always the case with all struggles for human rights, creating a mechanism through which FPIC becomes enforceable is mainly in our hands. We hope this tool will serve as a first step to ensure people around the world understand what FPIC is and that it becomes a platform through which indigenous peoples can communicate and find support from other nations facing similar situations.

A Historical Perspective

Five thousand indigenous nations and the more than 200 states established on top of those nations have been locked in political or violent conflict for more than five hundred years over access to, or the use of, natural resources in their claimed territories. The only method that prevents conflict and creates mutual benefit has resulted from the peaceful negotiation of consent. Such talks have been carried out between states and nations. Still, they less commonly have these negotiations over consent begun with states requesting consent from nations to access and use their ancestral land.

In the 21st century, the conflict between indigenous nations and states has rapidly increased with many political — and a growing number of violent — clashes over access and use of lands and resources. A process exists to prevent these conflicts, but a mechanism has not yet been established to enable respectful and enforceable negotiations of consent. The process is “free, prior and informed consent” (FPIC), and the enforcement mechanism to be established is now the focus of indigenous nations and some states.

Indigenous nations and international states occupy much of the same territory and political space. One and sometimes as many as 300 or more indigenous communities originally located on their ancestral lands are now inside a state’s boundaries—lands that may cover most or all the state’s claimed territory. For example, indigenous nations occupy virtually all the land officially considered the state’s territory in Kenya, Rwanda, Burma, Guatemala, West Papua in, Indonesia, and Iraq. Two-thirds of Canada, Mexico, and the United States are indigenous nations’ ancestral territories, as in the People’s Republic of China, and Russia.

In other words, indigenous nations’ ancestral lands and peoples make up what is now most of the established states. Governing by indigenous nation and state decisions affect the distinct peoples’ social, economic, environmental, cultural, political, security and justice interests. When international actors contend over control of territory or political decisions, it becomes necessary for the parties to undertake practical and mutually beneficial measures to engage and negotiate solutions directly.

Governing decisions by indigenous nations can affect the state’s interests, and the state’s governing decisions can affect the nation’s interests. Negotiating an enforceable balance between the governing decisions of both entities can thus promote peace and mutual benefit. And where negotiations are convened successfully or are unsuccessful, provision must be made for third-party oversight and mediation. Ordinary negotiations can ensure fair and balanced conciliation between the governments, preserving the authorities and rights of the players. Agreements can result in treaties or compacts, or other intergovernmental agreements.

Indigenous nations retain the original authority to govern their territories and peoples. The states derive their authority to govern territories and peoples from enacted constitutions. To avoid political or violent conflict, the nation and the state must exercise powers of consent freely without intimidation, exchanging opinions and information before respectfully entering good-faith negotiations.

When a state or one of its corporations wishes to extract natural resources from a nation’s ancestral territory, normal relations require obtaining consent through negotiations. When a nation seeks to use natural resources on which the state depends, then the nation is obligated to obtain consent through negotiations. This process is the internationally recognized process of free, prior, and informed consent, or FPIC, that has been agreed must be carried between indigenous nations and states. Failure to negotiate violates the established laws of both nations and states.

This process establishes political equality between the governments to maximize the fair and mutually beneficial negotiation of agreements. The principle of distinct peoples’ right to free, prior, and informed consent is a process that provides contending actors a framework for negotiating mutually beneficial outcomes in matters of dispute while affirming the political authority of each party and control over the sustainability of communities, territories, and use of land, water, and air resources.

This framework must provide for these elements:

• The determination that a third-party mediator or agent of compliance with agreements is to be incorporated into the negotiations between nation parties and state parties.
• Mutual recognition by parties of the self-defined decision-making and governing powers.
• Processes exercised to establish agreement on the methods and free exchange of information.
• Timing of exchanging information (subject, description, value assessments, etc.) in the form useful to each party, and
• Mutually determined mechanism (public ceremony, negotiations, etc.) by each party for formulating and communicating consent and or approval according to the traditions and institutional systems of each party to the terms of a final agreement.
• A mutually defined compliance, accountability, and enforcement agent.

The imbalance of economic, military, policing, and institutional support between nations and states in an FPIC engagement nation must be equalized by conducting exchanges through a mutually agreed international, institutional mechanism. This FPIC mechanism, separate from the state-controlled United Nations, must become recognized as responsible for overseeing the official nation and state negotiations put into action by both parties. The new international FPIC mechanism will implement the process of negotiated consent and enforce the treaties, compact, and other government-to-government agreements. This mechanism allows nations and states (as well as corporations, businesses, and other state agencies) to respect consent and contribute to the healthy relationship between peoples.

Please visit the project and share any ideas for improvement with us via the forum or email. It is a living document that will be revised, updated, and improved as more people, like yourself, get involved.