Memorandum submitted by the Forest Peoples
Programme and Middlesex University Business School—Law Department
BACKGROUND
It is widely recognised that the expropriation
of lands and resources from indigenous peoples directly threatens
their survival as peoples and an extant and expanding body of
international human rights law exists to protect indigenous peoples
from such destructive actions. As recognised by one of the preeminent
experts on the rights of indigenous peoples, Ms Erica-Irene Daes:
Much large-scale economic and industrial development
has taken place without recognition of and respect for indigenous
peoples' rights to lands, territories and resources. Economic
development has been largely imposed from outside, with complete
disregard for the right of indigenous peoples to participate in
the control, implementation and benefits of development.[144]
One of the key principles that has been developed
in international human rights law to protect indigenous peoples
from destruction of their lives and cultures is the principle
of "free, prior and informed consent", a principle well
established in law as a responsibility of states in their interaction
with indigenous peoples in their territories. However this principle
is also increasingly being adopted by non-state entities, notable
business groups involved in enterprises that impact on indigenous
peoples' lands and resources, including the extraction of sub-soil
resources and the alteration of land use practices through the
creation of plantations or other agricultural changes.[145]
SCOPE AND
DEFINITION
Free, prior and informed consent ("FPIC")
has been widely discussed and debated among international and
national fora. The United Nations Permanent Forum on Indigenous
Issues, the preeminent body for addressing issues facing indigenous
peoples within the UN system, defines FPIC as a process undertaken
free of coercion or manipulation, involving self-selected decision-making
processes undertaken with sufficient time for effective choices
to be understood and made, with all relevant information provided
and in an atmosphere of good faith and trust.[146]
Notably FPIC is defined as a process which implies and
requires an iterative series of discussions, consultations, meetings
and agreements.
In the context of transnational business, including
business enterprises undertaken with funding or investment by
British companies or the British state, a requirement for FPIC
means that prior to project being undertaken, or a licence for
same being issued, which would impact on the lands and resources
of indigenous peoples, that the affected indigenous peoples should
be involved in the decision making process at all stages, including
design and consideration of alternatives, and that any decision
to undertake activities impacting on their lands and resources
is only undertaken with their express consent and with any preconditions
or requirements they may make being met. Any consent achieved
or gained should be formalized in a legally binding document and
where consent is withheld the company must withdraw its application.
This process of decision-making and possible negotiation must
ensure that the affected indigenous peoples have sufficient time
and information to make a decision according to decision making
practices that they chose, whether through traditional authorities
or other frameworks.
LEGAL CONTENT
The principle of FPIC stems from and relates
to the right to self-determination, as protected by shared Article
1 of the International Covenants on Civil and Political Rights
and Economic, Social and Cultural Rights. Both the Human Rights
Committee and the Committee on Economic, Social and Cultural Rights
have found that when a State unilaterally extinguishes indigenous
peoples' rights to lands and resources that this act is in contravention
of the right to self-determination, thereby acknowledging that
indigenous peoples hold this right under international law.[147]
The UN Declaration on the Rights of Indigenous
Peoples ("UN DRIP"), passed by the General Assembly
with the support of the UK Government in 2007, restates this right
to self-determination and contextualises it as requiring FPIC
highlighting specific instances in which this right must be respected.
These include physical relocation (Article 10), use of cultural,
intellectual, religious and spiritual property (Article 11), adoption
of any legislative measures impacting on them (Article 19), restitution
of lands taken (Article 28), storage of hazardous materials (Article
29) and—key in the context of UK transnational corporations
operating overseas—the approval of any project impacting
on the lands or resources of indigenous peoples (Article 32).[148]
The main binding international instrument
that deals explicitly and directly with the rights of indigenous
peoples is ILO Convention 169 on the rights of indigenous
and tribal peoples in independent countries. The UK has yet to
ratify this treaty and we strongly encourage the government to
consider its ratification without delay. This instrument requires
under Article 16 that where "the relocation of these
peoples is considered necessary as an exceptional measure, such
relocation shall take place only with their free and informed
consent". In contexts other than relocation, ILO 169 requires
under Article 6(2) that consultation be undertaken "in good
faith … in a form appropriate to the circumstances,
with the objective of achieving agreement or consent." This
is then further supported by Article 7(1) which requires that:
[t]he people concerned shall have the right to
decide their own priorities for the process of development as
it affects their lives, beliefs, institutions and spiritual well-being
and the lands they occupy or otherwise use, and to exercise control,
to the extent possible, over their own economic, social and cultural
development.
In addition to the legal obligations established
by the two International Covenants, the UN DRIP and ILO Convention
169, there is also extensive jurisprudence from the UN treaty
bodies and the Inter American Court examining the obligations
of States in regards to indigenous peoples and specifically in
regards to the requirement for FPIC. To cite one body of jurisprudence,
the Committee on the Elimination of Racial Discrimination ("CERD")
has called upon States-Parties to "ensure that members of
indigenous peoples have equal 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."[149]
It relates the right to informed consent to the right to participate
found in article 5(c) of the Convention and has made repeated
reference to the preceding language in its decisions and concluding
observations.[150]
The Convention on Biological Diversity (CBD),
Article 8(j), requires that the traditional knowledge of indigenous
and local communities may only be used with their "approval",
which has subsequently been interpreted to mean with their prior
informed consent or their FPIC.[151]
This principle has also found its way into ongoing CBD work on
Access and Benefit Sharing,[152]
CBD guidelines on environmental and social impact assessment[153]
as well as regional standards on access and benefit sharing adopted
by the African Union[154]
and the Andean Community.[155]
Similar language is also found in the Convention to Combat Desertification.[156]
FPIC AND BUSINESS
ENTERPRISES
It is recognized that the experience of indigenous
peoples with extractive industries has included many examples
where the rights of indigenous peoples have been eroded and the
standard of living of affected peoples has been diminished.[157]
Indeed the UN Special Rapporteur responsible for addressing threats
to the rights of indigenous peoples concludes that it is "one
of the major human rights problems faced by [indigenous peoples]
in recent decades".[158]
The UN Centre for Transnational Corporations
has undertaken a series of studies examining the investments and
activities of multinational corporations on indigenous territories.[159]
The final report concluded that multinational companies' "performance
was chiefly determined by the quantity and quality of indigenous
peoples' participation in decision making" and "the
extent to which the laws of the host country gave indigenous peoples
the right to withhold consent to development…."[160]
Further to the conclusions of UN bodies, multi-sectoral processes
and industry-led processes have reached similar conclusions. The
World Commission on Dams, a multi-sectoral, multi-year study into
the impacts of dams on development hosted by the World Bank and
involving the dam construction industry, highlighted the need
for inclusive decision making processes for all dam construction
and noted that when dams may impact on indigenous peoples "such
processes are guided by their free, prior and informed consent".[161]
The Roundtable on Sustainable Palm Oil, an industry fora which
establishes best practice principles and criteria for the palm
oil industry, includes a requirement for FPIC prior to any new
plantations being established, prior to any action which may impact
on resource use and prior to any action that may impact on the
legal status of the land under use.[162]
The International Finance Corporation, the private
sector arm of the World Bank Group, established a series of "performance
standards" to guide its investment in the private sector,
standards which have since been adopted by the so-called "Equator
Banks" as minimum standards for investment. Performance Standard
7 on Indigenous Peoples requires, where the lands and resources
of indigenous peoples may be directly impacted, economic or physical
displacement may occur or where cultural resources will be commercially
developed, that "good faith negotiations" be conducted
and that these negotiations be "successfully concluded"
prior to investment taking place.[163]
It is also worth noting that the International
Bank for Reconstruction and Development (IBRD), more usually known
as the World Bank, is undertaking a review of its Operational
Policy 4.10 on Indigenous Peoples and numerous public commitments
have been made by Bank staff that recommendations will be presented
to the Board that the policy reflect the requirements of UN DRIP
and the right to FPIC.
THE RESPONSIBILITY
OF THE
UK GOVERNMENT
Several of the world's leading companies in
the area of extractive industries are headquartered in the UK
and many others are listed on the London stock exchange. This
includes both small companies (for example those involved in exploration)
as well as larger companies involved in resource exploitation.
Similarly, the principle of FPIC is also relevant to the work
of several British based financial institutions (banks and investment
managers) that fund the activities of companies operating in this
sector. Likewise, the obligation to respect FPIC is also of relevance
to consulting companies and other third parties that do work with
or on behalf of these companies.
These companies often find themselves operating
in counties where violations of indigenous peoples' rights, including
their right to FPIC, are widespread. This is the case even in
those countries where the right to FPIC is enshrined in national
legislation.[164]
In many cases a climate of impunity and corruption combined with
inefficient and discriminatory judicial systems translates into
an inability of members of vulnerable groups, such as indigenous
peoples, to obtain access to justice. Worst still, the legal systems
in many of these countries are being used as a tool to suppress
communities and individuals that have raised their concerns in
relation to violations of their right to FPIC.
However we recognize that the actions of these
companies do not reflect the position of the UK government and
that in many cases such violations are unintended consequences
of company actions. We believe urgent action is needed to assist
companies in recognising the rights of indigenous peoples and
in protecting those rights.
We have been pleased to note the UK Government's
support for the inclusion of the principle of FPIC in the safeguard
policies of the Asian Development Bank ("ADB") (still
under review) and note that such a safeguard is particularly relevant
for the growing private sector portfolio of the ADB.[165]
We were further pleased to see the European
Bank for Reconstruction and Development ("ERBD") acknowledge
in their updated Environmental and Social Policy that the UN DRIP
is relevant guidance for development impacting on indigenous peoples
and further recognise and seek to uphold the principle of FPIC
in certain categories of projects impacting on indigenous peoples.[166]
The UK is among the largest shareholders, in terms of capital
subscription, in the EBRD.
RECOMMENDATIONS
While the UK is a party to the main international
human rights treaties and declarations which impose a duty to
respect FPIC, its national framework is not clear enough on the
obligations of its corporations to respect human rights when operating
overseas. We invite the government and the parliament to provide
clearer guidance to UK businesses on the UK commitment to respect
the principle and the right of FPIC in government-funded activities
and to provide guidance on international best practice for businesses
on the protection and realisation of FPIC in relation to their
operations in indigenous peoples' lands.
Furthermore, we see the adoption of legislative
or administrative measures that provide for extraterritorial regulation
of transnational corporations registered in the UK as key in reducing
or preventing acts which negatively impact on the realisation
of the rights of indigenous peoples in territories outside the
UK. We invite the government to draft such measures and stand
ready to provide any assistance that may be required.
Moreover the UK government and parliament should
put in place mechanisms to monitor the implementation of the right
to FPIC by corporations registered in the UK that operate in indigenous
peoples' territories and to ensure that these corporations are
held accountable for violations of human rights committed overseas.[167]
Finally, it is clear that UK corporations operate
in some host countries where there exists inadequate de jure
and de facto respect for indigenous peoples' rights in
the context of development operations in their lands. This is
compounded by a lack of access to justice for indigenous peoples
in these countries. Given this, if the UK is to adhere to its
international human rights obligations, it is important for it
to provide adequate and effective grievance mechanisms under which
UK companies can be held to account for failures to respect the
human rights of indigenous peoples, including their right to FPIC,
in the countries in which they are operating.
ELEMENTS OF
FREE, PRIOR
AND INFORMED
CONSENT
What?
— Free should imply no coercion,
intimidation or manipulation;
— Prior should imply consent has
been sought sufficiently in advance of any authorization or commencement
of activities and respect time requirements of indigenous consultation/consensus
processes;
— Informed —should imply that
information is provided that covers (at least) the following aspects:
a.The nature, size, pace, reversibility and scope
of any proposed project or activity;
b.The reason/s or purpose of the project and/or
activity;
c.The duration of the above;
d.The locality of areas that will be affected;
e.A preliminary assessment of the likely economic,
social, cultural and environmental impact, including potential
risks and fair and equitable benefit sharing in a context that
respects the precautionary principle;
f.Personnel likely to be involved in the execution
of the proposed project (including indigenous peoples, private
sector staff, research institutions, government employees and
others); and
g.Procedures that the project may entail.
Consent
Consultation and participation are crucial components
of a consent process. Consultation should be undertaken in good
faith. The parties should establish a dialogue allowing them to
find appropriate solutions in an atmosphere of mutual respect
in good faith, and full and equitable participation. Consultation
requires time and an effective system for communicating among
interest holders. Indigenous peoples should be able to participate
through their own freely chosen representatives and customary
or other institutions. The inclusion of a gender perspective and
the participation of indigenous women is essential, as well as
participation of children and youth as appropriate.
This process may include the option of withholding
consent. Consent to any agreement should be interpreted as indigenous
peoples have reasonably understood it.
When?
FPIC should be sought sufficiently in advance
of commencement or authorization of activities, taking into account
indigenous peoples' own decision-making processes, in phases of
assessment, planning, implementation, monitoring, evaluation and
closure of a project.
Who?
Indigenous peoples should specify which representative
institutions are entitled to express consent on behalf of the
affected peoples or communities. In FPIC processes, indigenous
peoples, UN Agencies and governments should ensure a gender balance
and take into account the views of children and youth as relevant.
How?
Information should be accurate and in a form
that is accessible and understandable, including in a language
that the indigenous peoples will fully understand. The format
in which information is distributed should take into account the
oral traditions of indigenous peoples and their languages.
Source: Excerpt from the Report of the International
Workshop on Methodologies Regarding Free Prior and Informed Consent
E/C.19/2005/3, endorsed by the UNPFII at its Fourth Session in
2005.
144 Indigenous people and their relationship to
land. Final working paper prepared by Mrs. Erica-Irene A.
Daes, Special Rapporteur. UN Doc. E/CN.4/Sub.2/2001/21. at paras.
49-50. Back
145
For non-state entities or business groupings that accept the need
for FPIC or formulations similar to FPIC, see the Roundtable on
Sustainable Palm Oil, the World Parks Congress, the World Commission
on Dams and the Equator Banks (although the EB requirements are
limited to a standard lower than true FPIC) Back
146
See Annex One. For an overview of recent developments in relation
to the respect for FPIC see Free Prior Informed Consent (FPIC)-a
universal norm and framework for consultation and benefit sharing
in relation to indigenous peoples and the extractive sector. Paper
prepared for OHCHR Workshop on Extractive Industries, Indigenous
Peoples and Human Rights Moscow, 3-4 December 2008 Cathal
Doyle, University of Middlesex available at
http://www2.ohchr.org/english/issues/indigenous/resource_companies.htm Back
147
Among others, Concluding observations of the Human Rights Committee:
Canada. 07/04/99, para. 8. UN Doc. CCPR/C/79/Add.105. (Concluding
Observations/Comments) (1999) and Concluding observations
of the Committee on Economic, Social and Cultural Rights: Canada.
10/12/98. E/C.12/1/Add.31, para. 18. Back
148
UN Declaration on the Rights of Indigenous Peoples, adopted by
the General Assembly, September 2007 Back
149
General Recommendation XXIII (51) concerning Indigenous Peoples.
Adopted at the Committee's 1235th meeting, 18 August 1997.
UN Doc. CERD/C/51/Misc.13/Rev.4, at para. 4(d). Back
150
See, for instance, Concluding observations of the Committee
on the Elimination of Racial Discrimination: Botswana. 23/08/200;
Concluding observations of the Committee on the Elimination of
Racial Discrimination: United States of America. 14/08/2001. Back
151
Report of the Second Meeting of the Ad Hoc, Open-Ended, Inter-Sessional
Working Group on Article 8(j) and Related Provisions of the Convention
on Biological Diversity. UNEP/CBD/WG8J/2/6/Add.1, 27 November
2001, at 11. Back
152
See Seventh Conference of Parties to the Convention on Biological
Diversity, Decision V/26A, para. 11 Back
153
See Seventh Conference of Parties to the Convention on Biological
Diversity, Decision VII/16F, Annex: The Akwe:kon Guidelines for
the Conduct of Cultural, Environmental and Social Impact Assessment
Regarding Developments Proposed to Take Place on, or Which are
Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally
Occupied or Used by Indigenous and Local Communities note
70. Back
154
Organization of African Unity/Scientific, Technical and Research
Commission, Declaration and Draft Legislation on Community
Rights and Access to Biological Resources (Addis Ababa, Ethiopia,
1998). Back
155
Andean Community, Decision 391, Common Regime of Access to
Genetic Resources, of the Commission of the Cartagena Agreement,
July 1996. Back
156
Convention to Combat Desertification, particularly in Africa
1994, Article 16(g). Back
157
Among others, T. Downing, Indigenous Peoples and Mining Encounters:
Strategies and Tactics, Minerals Mining and Sustainable Development
Project: International Institute for Environment and Development
and World Business Council: London 2002. (concluding that indigenous
peoples experiences with the mining industry have largely resulted
in a loss of sovereignty for traditional landholders; the creation
of new forms of poverty due to a failure to avoid or mitigate
impoverishment risks that accompany mining development; a loss
of land; short and long-term health risks; loss of access to common
resources; homelessness; loss of income; social disarticulation;
food insecurity; loss of civil and human rights; and spiritual
uncertainty). Back
158
Report of the Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people, Mr. Rodolfo
Stavenhagen, submitted pursuant to Commission resolution 2001/57.
UN Doc. E/CN.4/2002/97, at para. 56. Back
159
The CTC reported to the Working Group four times: proposing methodology,
and a draft questionnaire for distribution to Indigenous Peoples
( UN Doc. E/CN.4/Sub.2/AC.4/1990/6); a preliminary report (UN
Doc. E/CN.4/Sub.2/1991/49); a report focusing on the Americas
(UN Doc. E/CN.4/Sub.2/1992/54) ; a report focusing on Asia and
Africa, summarizing the findings of all reports and making recommendations
"to mitigate the adverse impacts of TNCs on indigenous peoples'
lands, and increase indigenous peoples' participation in relevant
government and TNC decision-making." (UN Doc. E/CN.4/Sub.2/1994/40) Back
160
Report of the Commission on Transnational Corporations to the
Working Group on Indigenous Populations. UN Doc. E/CN.4/Sub.2/1994/40,
at para. 20. Back
161
Dams and Development: A new Framework for Decision-Making,
A Report of the World Commission on Dams, November 2000. at p.
215 Back
162
Roundtable on Sustainable Palm Oil (RSPO) Principles and Criteria
for Sustainable Palm Oil Production Public release version,
17 October 2005 Back
163
International Finance Corporation (IFC) Performance Standard 7 at
para 9. Back
164
FPIC is a requirement under the Indigenous Peoples Rights Act
in the Philippines however CERD has engaged its Early Warning
Urgent Action procedure in relation to the failure of transnational
corporations operating there to obtain the FPIC of indigenous
peoples affected by mining operations there. See http://www2.ohchr.org/English/bodies/cerd/early-warning.htm Back
165
Statement of the Executive Director of Austria Germany, Luxemburg
Turkey and the United Kingdom, Asian Development Bank, 23 February
2009 (available on request) Back
166
European Bank for Reconstruction and Development (EBRD) Environmental
and Social Policy issued May 2008 available at http://www.ebrd.com/about/policies/enviro/policy/2008policy.pdf Back
167
Recently CERD has specifically ruled that states do have an obligation
to monitor the action of transnational corporations registered
in their own country, see: Concluding observations of the Committee
on the Elimination of Racial Discrimination, Canada, CERD/C/CAN/CO/18,
25 May 2007, para. 17 Back
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