What is the Process of Free, Prior and Informed Consent?
Free, Prior and Informed Consent (FPIC) is a legal instrument that gives indigenous peoples the power to choose what to do with our land, people, and culture.
FPIC obliges outsiders to obtain a nation’s consent before doing any action on its territory.
FPIC is not about Fourth World Nations being consulted but about us choosing if we want to be part of a deal and on what terms.
In legal terms….
We may understand the FPIC process as follows:
Free: It must be uncorrupted from coercion or intimidation before, during, and after the consent negotiation process.
Prior: Provision of all relevant information on a proposed action must be made available to a nation and all other parties before any action or decision is taken that affects any of a nation’s interests or the interests of other parties.
Informed: All information must be available to all parties in a manner that is accessible and understandable and includes any social, economic, cultural, and environmental benefits and risks resulting from proposed projects, actions or policies. This information must be delivered in the language of the affected people in a manner understandable by all parties from which consent is sought.
Consent: The FPIC process requires that parties engage in shared dialogue as a first step, followed by a review of differences between the parties, potential points of agreement, and then organized negotiations of consent that both parties can accept. Negotiating consent is about indigenous people and our negotiating partners deciding if we want the particular activity on our ancestral lands or communities and on what terms.
A nation and partner may choose to withdraw from participating in negotiating consent at any stage of the process. No policy initiatives or actions originally contemplated may be taken unless and until a successful process of negotiated consent is resumed. All parties must understand the process before commencing the process.
FPIC first appeared in connection with Fourth World Nations in the International Labor Organization ILO Convention 169 of 1989, and since then, it has been part of international law. It also appears in the International Covenant on the Rights of Indigenous Nations (1994), the 2007 United Nations Declaration for the Rights of Indigenous Peoples the Alta Outcome Statement (2013) and the UN World Conference on Indigenous Peoples Outcome Statement (2014).
What is the problem with this international human rights law? It is almost never enforced.
So it’s a law that companies and states don’t use; how is this possible? International treaties encourage states to implement their own laws…. but in most cases, this never happens!
Nevertheless, it doesn’t mean people haven’t tried to use FPIC or make it work. An example there is a long list of Fourth World Nations seeking to implement the protocols as shown on the European Network of Integrity Practitioners website: ENIP website.
Another example is the ALDMEM mechanism that CWIS in cooperation with the president of the US-based National Congress of American Indians (NCAI) and Fourth World Nations in Africa, West Asia, Canada, and Melanesia are now formulating. ALDMEM will be announced soon.
Dr. Rudolph Rÿser explains what FPIC is and its limitations.
