Turning Rights Into Reality by RFUS

FPIC

Turning righTs inTo realiTy

issues to Consider in implementing the right to Free, Prior, and informed Consent May 2013

Turning rights into reality: issues to Consider in implementing the right to Free, Prior, and informed Consent

Contents: Introduction Background 1-2 Analysis 3-14 ‣ scope

• Who is entitled to FPiC? 3 • identifying indigenous lands 3

• Defining Covered activities 4-5 • Defining entities That Must Comply with FPiC 6 • identifying appropriate indigenous representatives 6 ‣ What should Consultation look like? • When should indigenous involvement Begin? 7

• length of Consultations 7 • information sharing and other Consultation items 8-9

• ensuring no Coercion Takes Place 10

‣ Concluding the negotiation Process 11-12 ‣ Monitoring and implementation 13-14

Overall Assessment 15-17 Conclusion 18

introduction Under increasingly-recognized international principles of human and indigenous rights law, indigenous peoples are entitled to grant or withhold their free, prior and informed consent (FPIC) in relation to a program, development project or legislation that could affect their people and/or their territories. This right is recognized by a variety of international instruments, most explicitly in the Declaration of the Rights of Indigenous Peoples (UNDRIP). International entities, as well as national and regional governments, have adopted treaties, guidelines, protocols and other documents that recognize at least some of the indigenous rights arising from FPIC. FPIC is not intended to be an end in itself, nor a stand-alone procedural right, but a derivative of many substantive indigenous rights that are often affected by development projects and land-use legislation. FPIC is meant to act as a safeguard of rights such as the right to self-determination, participation, non-discrimination, property, food, health and culture. The following is an overview and analysis of some existing FPIC materials and legal standards, which vary and continue to evolve. This document does not pretend to be an exhaustive survey of all existing FPIC protocols and guidelines, nor a critique of how they have been implemented on the ground. Rather, the aim of this report is to provide an overview of issues that can arise while creating and implementing an FPIC protocol and examples of how existing documents have addressed these issues. The report pays particular attention to the structure and content of the consultations that must be carried out in order for FPIC rights to be exercised. Article 19 of the UNDRIP prescribes, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” It is through consultation that the communication of ideas and concerns takes place which leads to the ultimate decision to grant or withhold consent. Additionally, several of the protocols discussed provide for consultation but not consent; thus, the adequacy

Rainforest Foundation US May 2013 authors: Moneen nasmith, Marina Campos, Christine halvorson Contributors: Mark Camp, Tom Bewick Jessie Cherofsky, laura garbes Design: agnes Portalewska Licensed by:

and components of a consultation process are particularly important. The analysis here is not prescriptive; rather it analyzes some of the main questions that must be addressed, whether a community is developing an FPIC protocol of its own or whether it’s beginning to engage in a consultation about a given project or piece of legislation. The document examines how various FPIC protocols and guidelines have addressed these questions, and what you may want to consider as you think them through. After a brief summary of a handful of protocols and guidelines, the document looks at each question in turn, considering the pros and cons of how each protocol has addressed them. This document originated in a request from the Amerindian Peoples Association in Guyana, which was considering developing communitybased FPIC protocols. Rainforest Foundation US Legal Fellow Moneen Nasmith developed a first version of the document in 2011 to help provide guidance based on some of the existing FPIC guidelines at that time. We realized, however, that the document could be useful to other communities facing similar issues, and decided to broaden the scope. The Rainforest Foundation US and Cultural Survival have since partnered to further develop and distribute the document, hoping that it will be useful to indigenous communities and their allies. Things are rapidly evolving. This document was first drafted in the summer of 2011, several new laws have passed; guidelines have been further developed; and consultation processes have been undertaken. We have updated it since, but the document will perforce be dated soon. We therefore encourage submission of FPIC treaties, protocols, guidelines, etc. that we may have missed, or that are yet being developed. Any such materials can be sent to fpic@rffny.org and/or fpic@cs.org. It is our hope that we’ll be able to publish an update that both includes more materials and addresses other questions as they arise. We hope you find this document useful and encourage your comments and feedback.

Cultural Survival

Texts in this publication are under a Creative Commons license (www.creativecommons.org), which opens intellectual property rights. in practice, this license allows the texts of these booklets to be reproduced and used in derivative publications without previous authorization from the editors (rainforest Foundation us and Cultural survival), but with some criteria: they can only be used for non-commercial purposes; they must cite the original source; and in the case of derivative publications, they must also be licensed in the Creative Commons. you can: share—copy, distribute and transmit this document remix—adapt the document for your community’s use under the following conditions: attribution—you must attribute credit as follows: Turning rights into reality: issues to Consider in implementing the right to Free, Prior, and informed Consent, rainforest Foundation us and Cultural survival. noncommercial—you may not use this work for commercial purposes. share alike—if you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.

Background The obligation to provide indigenous peoples with the opportunity to give their free, prior and informed consent to activities and legislation that may impact their lands and/or populations stems from a variety of sources. FPIC, grounded in indigenous peoples’ right to their lands, territories, resources, and self-determination, has been formally recognized by the UNDRIP, the Inter-American Court of Human Rights (IACHR), and constitutional courts in many countries. Thus, FPIC is increasingly considered to be customary international law even in countries where the right is not specifically enumerated or which have not ratified applicable conventions.(1) As momentum recognizing FPIC and the rights it is derived from continues to build, it will become legally binding in all countries.(2) FPIC is also provided for in other international conventions, a notable one being International Labour Organization Convention 169 (ILO 169). Article 6 of ILO 169 requires that indigenous peoples be consulted on measures that directly affect them,(3) while Article 7 “recognizes indigenous peoples’ right to decide their own priorities for the process of development,” and to “exercise control to the extent possible, over their own economic, social, and cultural development.”(4) The ILO has also issued a guide to provide a practical tool for implementing the FPIC rights contained in the Convention. Although the ILO Convention has not been ratified by every country, the tools it provides for implementing FPIC are based on generally recognized international legal principles of participation and self-determination. It is important to note that internationally protected rights to FPIC are most vital when domestic statutory law is inadequate and where local governance and enforcement is weak. In these contexts, the exercise of the right to FPIC is meant to ensure that all indigenous rights are protected. The Convention on Biological Diversity (CBD) is another international treaty that recognizes and accepts a version of FPIC by providing that, subject to its national legislation, a party should “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”(5) Almost 200 countries have signed and ratified the CBD and are thus bound by this provision. The Secretariat of the CBD also adopted voluntary guidelines to assist parties in incorporating “cultural, environmental and social considerations of indigenous and local communities into new or existing impact-assessment procedures.”(6) These guidelines provide an outline of the steps that should be included in any environmental assessment being conducted when developments are taking place on or are likely to impact indigenous lands or waters that are related to biodiversity. A number of countries have passed laws or have jurisprudence that reference FPIC rights in some form. For example, the Constitution of Venezuela contains a provision requiring that native communities be consulted and provided with information prior

Panama

to state exploitation of natural resources in native habitats.(7) The Constitutional Court of Colombia has issued several rulings ordering the suspension of development projects, or declaring legislation unconstitutional because of a lack of prior consultation with indigenous peoples.(8) However, few countries have adopted measures, protocols or guidelines that establish how FPIC will work in practice. The Philippines and Peru have both passed legislation requiring FPIC. (9) (10) The Philippines has passed an administrative order detailing the steps that must be followed to ensure this right.(11) Nevertheless, as will be discussed below, there have been significant problems implementing these measures. A limited number of indigenous groups have also developed their own protocols, including the Guna of Panama and the indigenous peoples of Paraguay. In addition to national and international laws, FPIC protocols and guidelines have been incorporated into the policies of a number of intergovernmental organizations and financial institutions, such as the World Bank and the UN, to ensure that their programs and development projects respect indigenous FPIC rights. Such standards often apply to governments, companies, and other entities who are engaged in the institution’s development programs. For example, the World Bank’s International Finance Corporation (IFC) has developed Performance Standards for Indigenous Peoples that include the requirement that World Bank clients engage in prior consultation with indigenous peoples.(12) Similarly, various UN programs incorporate FPIC. The UNREDD program has drafted a set of FPIC guidelines to be followed in the context of designing and implementing national REDD programs.(13) The Inter-American Development Bank and the European Bank for Reconstruction and Development have also developed FPIC guidelines in relation to projects that they finance or co-finance. Finally, given the evolving legal norms and potential impact on their reputations, certain companies and industry groups have voluntarily begun to incorporate FPIC principles into their internal corporate policies and procedures. These include the Roundtable on Sustainable Palm Oil and certain companies within the mining sector. (14) The World Resources Institute published a report in 2007 that makes a business case for FPIC, arguing that extractive companies incur greater long-term costs if they operate without the consent of affected communities.(15) Although the number of FPIC protocols is limited, this report will draw from certain examples (16) to illustrate the provisions included in such documents and will analyze the strengths and weaknesses of these protocols. It will also provide an assessment, where available, of how these protocols have worked to protect indigenous peoples’ FPIC rights.

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Background The examples that will be discussed are :

‣ Canada: The Federal Government of Canada has adopted guidelines for Aboriginal Consultation and Accommodation but does not provide First Nations with a veto.

‣ Canadian Province of British Columbia: The provincial government of BC adopted “The New Relationship” program in 2005 that contemplates establishing processes and institutions for shared decision-making, including allowing aboriginal communities to make decisions as to the use of their land.(17) This has resulted in the signing of multiple agreements between various First Nations bands and the government of British Columbia establishing guidelines for consultation and revenue-sharing over particular natural resources.(18) Because many of the agreements with various bands are quite similar, the discussion below will focus on the agreement with the Kitsumkalum Indian Band concerning Forest & Range. ‣ Norway: The Norwegian government adopted procedures for consulting with the Sami Parliament, the representative body of the indigenous peoples of Norway.

‣ CBD: The Convention on Biological Diversity recognizes the importance of respecting indigenous peoples. The Secretariat of the CBD adopted the Akwé: Kon voluntary guidelines to assist with the conduct of cultural, environmental and social impacts assessments under the CBD. ‣ UN-REDD Programme: The UNDP committee on stakeholder engagement has developed operational guidance for the REDD initiative. This paper examines the ﬁnal draft dated January 2013. (24) ‣UN Development Group: The UNDG adopted Guidelines on Indigenous People’s Issues that include guidelines for UN Country Teams to ensure the exercise of FPIC by indigenous peoples.

As the following analysis demonstrates, when crafting an FPIC protocol or guideline, numerous uncertainties and issues emerge. These include:

‣ Paraguay: Paraguay’s indigenous peoples have developed a proposed protocol to guide consultation and consent on all projects that affect the territories, lands, natural resources and rights of indigenous peoples in Paraguay. (20) The government of Paraguay has indicated that they may adopt this protocol.

1) What is the scope of the FPIC protocol? This requires answering the fundamental question of who is entitled to FPIC. Key to this is understanding what it means to be ‘affected’ or ‘impacted’ by development projects or legislation, the extent of a project’s social and environmental impacts, and which communities are likely to be affected. There are varying definitions of what it means to be an indigenous community, and there are always differing assessments as to the extent of a project’s impact. Within communities, it is also critical to define who will be consulted. Therefore, indigenous communities must define in their own bylaws or other community regulations what land and which people are entitled to FPIC, what activities are covered by the protocol, what entities are bound to consult with and/or obtain consent from indigenous groups, and who are the appropriate indigenous representatives.

‣ Peru: The Peruvian Congress passed Law 29785, the Law of Prior Consultation to Indigenous and Native Peoples, as Recognized in the Convention 169 of the International Labor Organization. The President of Peru, Ollanta Humala, signed the Consultation Law in September 2011. The enabling legislation for the law, which was passed in 2012, has been hotly debated in Peru, both in terms of process and content. Indigenous organizations have criticized the scope of the law, which, while providing for consultation, does not provide for ‘consent’. This, according to indigenous activists, does not allow for affected communities to withdraw consent or veto a proposed project. Additionally, there is widespread debate over who has the right to consultation, and that this lies solely with the government’s publishing of a “database” of indigenous peoples. (21)

2) When and how should FPIC be applied, and what should the consultations look like? This requires determining when in the process of implementing a project indigenous peoples should be consulted, the appropriate length of the consultations, the extent and form of the information to be provided to indigenous peoples, and how the exercise of coercion will be prevented. Some FPIC guidelines require the process to be initiated prior to a project’s approval by a government, such as through the granting of a concession. Many indigenous organizations argue that consultation procedures should coincide with their own decision-making processes, taking into account the appropriate approval processes and timeframes.

‣ The Philippines: The Filipino government passed the Indigenous Peoples Rights Act of 1997, which provides indigenous peoples with the right to self-determination, to participate in decision-making, and to determine and decide development priorities. (22) The National Commission on Indigenous Peoples also adopted FPIC guidelines. (23)

3) How should an agreement be reached? This requires specifying whether indigenous peoples have the power to veto the proposed project and, if so, how their decision will be expressed. It also entails establishing procedures for reaching an agreement, as well as determining the procedures to be used in case there is failure to reach a consensus.

‣ Panama: The Panamanian Government has not passed an FPIC law or protocol. However, the Guna Yala, an indigenous group living on the Caribbean coast of Panama, have passed a Fundamental Law that requires that they be consulted and provide consent to any resource exploitation on their land. The Panamanian Government has not officially recognized the Fundamental Law but appears to have acknowledged the ability of the Guna’s General Congress to refuse to allow certain activities to take place on their land. (19)

‣ IFC: The World Bank’s IFC has adopted performance standards that apply to their investment projects that impact indigenous peoples. ‣ ILO: The ILO Convention No. 169 requires states who have ratiﬁed the Convention not Guyana to consult with indigenous peoples on activities that could affect them, obtain their consent for relocation of indigenous communities, and compensate indigenous peoples for negative impacts of resource exploitation. The ILO has adopted guidelines to assist parties in implementing FPIC in practice.

4) How should the FPIC protocol be monitored? This requires adopting appropriate indicators to measure the effectiveness of the processes, as well as establishing a recourse mechanism through which indigenous peoples can enforce the agreement or seek assistance if their FPIC rights are not being respected.

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Analysis: scope

Who is entitled to FPiC? Who is Entitled to FPIC? A preliminary issue lies in defining ‘indigenous’ or ‘tribal’ peoples, and whether a given protocol, guideline, or agreement will be national or local in scope. The UN and ILO have elaborated definitions that apply globally to all indigenous peoples. In some countries, national constitutions provide definitions of ‘indigenous’ that articulate ethnicities, languages, and geographical areas where indigenous rights are applicable. FPIC protocols may also take the form of treaties or agreements that only apply to particular groups or tribes of indigenous peoples. For example, British Columbia’s approach has been to sign treaties with individual tribes rather than with all the First Nations in the province. The choice of the appropriate scope of an FPIC protocol will depend on the context in which it is being drafted and applied. For multilateral organizations such as the UN or World Bank, a protocol that applies globally to all indigenous peoples may be more suitable. At the national level, the advantage of negotiating a broader agreement may allow indigenous groups to organize collectively in order to leverage more political and negotiating strength. Another advantage is that such an agreement would apply equally to all indigenous groups within the country, regardless of size. However, allowing individual tribes to draft their own agreements allows for greater bottom-up participation. This may result in a protocol that is better tailored to the needs and customs of individual tribes.

identifying indigenous lands Identifying Indigenous Lands Because FPIC is often contingent on whether an activity either takes place or has an impact on land that is identified as indigenous, land titling and the resolution of land disputes is critical to the meaningful exercise of indigenous FPIC rights. The FPIC protocols/guidelines that were surveyed do not provide procedures for how indigenous groups should go about securing claimed but unrecognized territories. Some guidelines, however, are worded to allow FPIC to be exercised in the absence of definitive indigenous land titles. As illustrated by the examples below, an FPIC protocol may be worded expansively to cover activities that are on lands subject to titling disputes. Although resolving these issues prior to adopting a protocol might be preferable, this may not be possible in all circumstances and/or may take a long time. Rather than wait and risk having projects go forward without adequate preservation of indigenous FPIC rights, it may be advisable to develop a protocol that will cover activities on lands that are: 1) subject to unresolved indigenous claims, 2) historical indigenous domains, and/or 3) used by indigenous peoples, including seasonal or cyclical use, for their livelihoods or cultural, ceremonial, and spiritual purposes that define their identity and community. As is the case in IFC guidelines, the protocol could also include an acknowledgment of indigenous peoples’ loss of legal attachment or title to their traditional lands. In addition, because of the deficiencies of many officially-sanctioned maps, protocols should place the burden on proponents of a project to make reasonable efforts to ensure that adequate due diligence is performed to determine the extent of indigenous lands claims and traditional usufruct rights and patterns. There should also be a mechanism that provides for conflict resolution and remedy.

FPIC protocols may be worded expansively to cover lands subject to titling disputes ‣ The Canadian Guidelines for Aboriginal Consultation and Accommodation require consultation when potential government activity might adversely impact “potential or established Aboriginal or Treaty rights” recognized by Canada’s Constitution. (26) ‣The Treaty between the Kitsumkalum Band and the Government of British Columbia similarly requires consultation when the activity impacts “claimed or asserted Traditional Territory.” (27) ‣The IFC guidelines take a fairly expansive approach by including projects on or that make commercial use of natural resources on “lands subject to traditional ownership and/or under customary use by Indigenous Peoples…[or projects that] involve commercial use of Indigenous Peoples’ cultural resources.” (28)

• The IFC also recognizes that while “Indigenous Peoples may not possess legal title to these lands as defined by national law, their use of these lands, including seasonal or cyclical use, for their livelihoods, or cultural, ceremonial, and spiritual purposes that define their identity and community, can often be substantiated and documented.” (29) • The IFC further defines Indigenous Peoples as including “groups or communities that have lost collective attachment to distinct habitats or ancestral territories in the project area, occurring within the concerned group members’ lifetime, because of forced severance, conflict, government resettlement programs, dispossession of their lands, natural disasters, or incorporation of such territories into an urban area.” (30)

‣The FAPI protocol applies to activities affecting the territories, lands, natural resources, and human rights of indigenous peoples. (31) It also states that indigenous peoples can be affected by an activity without having a title issued and registered by the Paraguayan State. (32) In addition, as part of the negotiation process, a written agreement must be entered into that delimits, demarcates and titles indigenous land, where applicable, prior to the indigenous peoples making any decision on the project. (33) ‣The Peru Consultation Law instructs the relevant state entity to identify the indigenous peoples to be consulted on the basis of the content of the proposed measure, the degree of the relationship between the measure and the indigenous peoples and the measure’s territorial scope. (34)

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Analysis: scope

Defining Covered activities Deﬁning Covered Activities Even with the resolution of land titling issues, attention must also be paid to the scope of activities that trigger FPIC rights. Among the examples, the scope of protocols varied signiﬁcantly. Some protocols enumerate various types of activities that trigger FPIC. The Philippines Administrative Order applies to: • Exploration, development, exploitation and utilization of natural resources for commercial purposes within ancestral domains/lands by indigenous peoples and non-indigenous peoples alike; • Research on indigenous systems, knowledge and practices, Archeological explorations; • Activities that would impinge on indigenous peoples spiritual and religious traditions; • Program, projects and activities that would lead to the displacement and/or relocation of indigenous peoples; • Entry of migrants and other entities who intend to do business or engage in development activities inside the ancestral domains; • Management of protected and environmentally critical areas, and other joint undertakings within ancestral domains; • Implementation of government reforestation and infrastructure projects; • Policies affecting the general welfare and the rights of indigenous peoples; • Occupation of military or paramilitary forces or establishment of military facilities within the domaina [except] when the same is made in connection with hot pursuit operations and the duration is not to exceed the period of seven (7) days; • Other activities or undertaking similar or analogous to the foregoing. (35)

Both approaches arguably have advantages and disadvantages. By taking the approach of listing specific activities, the drafters of the protocol can be extremely precise and make sure that the activities that are most likely to affect them are very clearly covered by the protocol. However, this creates the possibility that an important activity could be left out by mistake or because activities that do not currently impact the community now may do so in the future. Addressing these deficiencies would require negotiating amendments to the protocol or a new protocol, depending on future political circumstances. Similar risks are associated with limiting an FPIC protocol to one type of activity or one program, such as the Kisumkalum Agreement that applies only to forest and range activities. Although forestry may currently be the primary natural resource activity affecting their land, it is possible that another activity, such as mining, could become viable, requiring that the Kitsumkalum negotiate an entirely new protocol to cover mining activities. Nevertheless, protocols with a more general scope also suffer from disadvantages. Given the greater variety of interests involved in a protocol that covers multiple industries, such agreements may be more difficult for indigenous peoples to negotiate. By limiting the document to just one sector or program, indigenous peoples may be able to obtain a more robust and protective FPIC protocol than if they attempted to negotiate across all sectors at once. In addition, the most appropriate FPIC processes may differ across industries or programs. Thus, it may be more efficient to create separate protocols that each cover specific activities.

The Agreement between British Columbia and the Kitsumkalum is signiﬁcantly more narrow and applies only to a “decision made by the Minister or a Delegated Decision Maker related to forest and range resources under provincial legislation…” and various Operational Plans, which consist of certain forest and range license and stewardship plans. (36) Other protocols do not enumerate particular events, but rather provide a more general standard that is based on the extent to which indigenous peoples might be impacted:

‣ The ILO’s FPIC requirements apply to “legislative or administrative measures which may affect [indigenous peoples] directly.”(37) ‣ The Consultation Agreement between Norway and the Sami Parliament covers matters that “may affect the Sami interests directly.” (38) ‣ The Canadian Guidelines for Aboriginal Consultation and Accommodation only apply to Federal Govern-

ment activity with a “potential adverse impact” on Aboriginal rights. (39)

‣ The CBD’s Voluntary Guidelines should be taken into consideration “whenever developments are proposed to take place on, or which are to likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities.” (40) ‣ ILO’s Convention No. 169 also provides for indigenous peoples’ participation in the planning and implementation of development measures that “may affect them directly.” (41)

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Analysis: scope

Santa Cruz Barillas, Guatemala

Another critical issue is the extent and type of the impact required to trigger FPIC. First, there is the question of whether FPIC rights are triggered only by activities that occur on indigenous land as opposed to activities that occur elsewhere but affect indigenous peoples, such as national land use legislation. In other words, will the protocol only cover activities that have a direct impact on indigenous people or also cover activities that have an indirect impact on indigenous peoples? Many of the above examples, including the ILO and the Norway/Sami Agreement, provide that the impact on indigenous land or peoples must be “direct.” This potentially prevents indigenous peoples from exercising their FPIC rights on projects that will indirectly impact them. Such projects include operations that are upstream and risk affecting downstream water quality and ﬁshing, drilling that contaminates groundwater, projects that affect regional air quality, and forestry operations that affect the health of species that indigenous peoples rely upon for their wellbeing. As a result, it may be advisable to avoid using the word “direct” when describing the types of activities that will trigger FPIC and to specify that projects with potential indirect impacts on indigenous lands, communities, or livelihoods require FPIC. Serious consideration should also be given to including activities that affect the water and air that indigenous peoples use.

FPIC rights are not triggered because it is not sufficiently likely that their activity will impact indigenous peoples. As such, protocols should include protections that apply to activities that “may” or “have the potential to” impact indigenous peoples. Third, there is the question of whether only negative impacts will trigger FPIC or whether positive impacts should also be included. The Canadian Guidelines, for example, only apply when there are potentially adverse impacts to First Nations; the Peruvian Consultation Law similarly excludes all ‘positive’ projects, such as health and education programs. However, though such programs may be intended to beneﬁt indigenous communities, they still may not respond to their concerns or traditions. To only include negative impacts allows for entities and individuals outside indigenous communities to determine what impacts are positive and negative rather than allowing indigenous communities to make those determinations for themselves. It also creates an incentive for project proponents to ﬁnd a way to argue that a project will have a net positive effect so as to avoid the FPIC process. Thus, drafters of FPIC protocols seeking to maximize the protection of indigenous rights should consider having both positive and negative impacts on indigenous peoples trigger FPIC processes.

Second, it is also important to consider potential and future impacts. Most of the examples above provide that FPIC is triggered when an activity “may” affect indigenous peoples or when an activity has the “potential” to affect indigenous peoples. This prevents proponents of projects from attempting to avoid their FPIC obligations when the impacts of the project are uncertain or unknown. Some protocols, such as the CBD’s Voluntary Guidelines, are somewhat more limited and require that the impacts be “likely” before FPIC is triggered. This could create a greater opportunity for some project proponents to argue that

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Analysis: scope

Defining entities That Must Comply with FPiC identifying appropriate indigenous representatives Deﬁning Entities That Must Comply with FPIC Although governments typically hold the primary responsibility for ensuring that FPIC rights are respected, FPIC protocols can apply to government entities, corporations, and/or international organizations and their representatives. Many of the activities that typically affect indigenous lands involve the government, either because the activity is being undertaken by a government entity or because the government has granted a private entity a license or authorization for the activity to take place. However, it is possible that private entities could acquire land and engage in unregulated activities that impact indigenous communities. Thus, depending on what kinds of activities or programs a protocol covers, the selection of which entities will be subject to the protocol can be critical. Existing protocols tend to apply only to government entities.

Identifying Appropriate Indigenous Representatives Given the varied forms of indigenous government and self-representation, a protocol that covers more than one indigenous group should provide sufficient ﬂexibility to allow different peoples and tribes to exercise their FPIC rights using their own forms of decision-making. Sufficient safeguards should also be in place to ensure that the project proponent or the government cannot appoint indigenous representatives who do not in fact represent their people. The selected protocols attempt to address this issue using a variety of provisions. ‣ The Philippines Administrative Order provides that indigenous peoples will participate in the decision-making process “primarily through their indigenous socio-political structures and they shall likewise affirm the decisions of their representations.” (48)

‣ The Consultation Agreement between Norway and the Sami Parliament only applies to the “Government and its ministries, directorates and other subordinate agencies or activities.” (42)

‣ The Peru Consultation Law directs that indigenous peoples participate through their “representative institutions and organizations, chosen according to their traditional uses and customs.” (49)

‣ The Agreement between British Columbia and the Kitsumkalum is only binding on the two signatories, the Government and the Band. (43)

‣ The IFC provides that the FPIC process shall “[i]nvolve Indigenous Peoples’ representative bodies and organizations (e.g., councils of elders or village councils), as well as members from the communities of Indigenous Peoples.” (50)

‣ The Canadian Guidelines for Aboriginal Consultation and Accommodation only applies to the Federal Government of Canada. (44) ‣ The ILO guidelines speciﬁcally provide that “the obligation to ensure appropriate consultation falls on governments and not on private persons or companies.” (45) ‣ The Philippines Administrative Order applies to “appli-

cations for lease, license, permit, agreement and/or concession to implement and/or operate programs/projects/activities in ancestral domains.” (46) By contrast, the Paraguay protocol explicitly applies to government and private entities, as well as to international financial institutions. The FAPI Protocol provides that the FPIC process applies in all cases in which governments, businesses, international financial institutions and other entities project proponents have an interest in working in Paraguay and run activities affecting indigenous peoples’ territories, lands, natural resources and human rights. (47) However, assuming that the Paraguayan government does in fact adopt the current version of the FAPI Protocol, it will be up to the government to ensure that businesses and international financial institutions adhere to it. Unless a protocol becomes the law of the relevant country or a private party signs on to the protocol, it will not be binding directly on the private party. Therefore, in order for an FPIC protocol to cover private entities if they are not obtaining a permit, license or otherwise having to formally deal with the government, the protocol should either 1) specifically provide that it applies to private entities AND be adopted into law by the government or 2) include the private entity as a signatory to the protocol.

‣ The United Nations Development Group Guidelines provide that “[i]ndigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions.” (51) ‣ The ILO Guidelines provide slightly more detail and suggest that “prior to undertaking consultation, the concerned communities have to identify the institutions that are [representative institutions].” (52) The Guidelines emphasize that “if an appropriate consultation process is not developed with the indigenous and tribal institutions that are truly representative of the communities affected, the resulting consultations will not comply with the requirements of the Convention.” ‣ Guna Fundamental Law provides that all decisions involving natural resource use of their land be made by the Guna General Congress. (53)

To the extent that the protocol only covers one group, it should specify which representatives from among that community should be charged with negotiating and decision-making authority. The protocol can also provide for wider community participation in earlier stages of the consultation process but it should clearly identify the representatives or entities that will express the community’s ﬁnal decision. If the protocol covers or could cover multiple indigenous peoples, it should provide that prior to the beginning of consultation, the indigenous group(s) must freely identify their representatives and that the failure to do so could invalidate the resulting FPIC process.

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Analysis: What should the Consultation Process look like?

When should indigenous involvement Begin? length of Consultations Consultations are essential to providing indigenous peoples with the opportunity to grant or withhold their free, prior, and informed consent. To ensure that indigenous peoples are able to meaningfully exercise their FPIC rights, an FPIC protocol must outline the considerations that are necessary for adequate consultations. These should include: 1) how early in the project planning process indigenous peoples should be consulted and whether capacity building is required; 2) how long consultations should last to allow indigenous peoples to obtain sufficient information about the project and discuss this information among themselves; 3) how project information should be conveyed to indigenous peoples and should they be provided with outside assistance; and 4) how coercion or undue inﬂuence of indigenous peoples should be prevented.

When Should Indigenous Involvement Begin? As “prior” is one of FPIC’s key components, it is important for an FPIC protocol to deﬁne how early indigenous peoples should be involved for the consultation process to be meaningful. Existing protocols contain a variety of provisions that attempt to accomplish this goal: ‣ The UN-REDD Program’s draft Programme Guidelines provide that “prior” implies “before activities can be initiated, at the beginning or initiation of an activity, process or phase of implementation, including conceptualization, design, proposal, information, execution, and following evaluation[.]” (54) ‣ The IFC’s Performance Standard requires that the consultation and participation relationship between the project proponent and the indigenous peoples begin “as early as possible in the project planning…” (55) ‣ The UN Development Group’s Guidelines provide that

“FPIC should be sought sufficiently in advance of commencement or authorization of activities, taking into account indigenous peoples’ own decision-making process, in phases of assessment, planning, implementation, monitoring, evaluation and closure of the project.” (56) ‣ The Agreement between the Kitsumkalum Band and British Columbia provides that information sharing with the Band will occur “during planning to provide opportunity to incorporate Aboriginal Interests prior to submitting plan/request” to the decision-maker within the government. (57) ‣ The Agreement between the Sami and Norway requires Norway to “as early as possible inform the Sami Parliament about the commencement of relevant matters…” (58) ‣ The FAPI Protocol requires that consultation occur during the initial stages of project planning and not only when the need to obtain indigenous approval arises. (59) ‣ The Philippines Administrative Order takes a slightly different approach and provides a speciﬁc deadline that the preliminary consultative meeting with the host community must take place “within ﬁfteen days of the submission of the applicant’s operation plan” to the government. (60)

In order to ensure that affected indigenous communities are involved early enough in the process to meaningfully exercise their FPIC rights, protocols should require project proponents to identify and engage with the potentially affected communities as soon as possible. The consultation process should occur early during the planning stages, before any major decisions take place to allow indigenous peoples to affect how the project takes shape. This not only ensures a more meaningful FPIC process but also increases the possibility that an agreement will be reached at the end of the process. Including a speciﬁc deadline (e.g., 15 days) places signiﬁcant restrictions on the process, which may not be appropriate, especially if the protocol will apply to a wide variety of activities and indigenous peoples. A related question is whether the protocol should include measures for capacity building within communities that lack the skills and knowledge to participate effectively in the FPIC consultation and consent process. Although few protocols provide for such measures, the UN-REDD program’s pilot project in Vietnam undertook a series of Awareness Raising workshops to educate communities about FPIC and UN-REDD. (61) To the extent that such capacity building is appropriate, FPIC protocols should not only allow for the time necessary to undertake these activities, but also ensure that there are resources available to do so.

Length of Consultations FPIC protocols must take account of the varying internal decision-making processes of different indigenous groups. Consultations must be long enough to allow for these processes to take place, as well as for indigenous peoples to obtain and understand all the relevant information about the proposed project. ‣ The UN-REDD Programme provides that a decision-making timeline should be established by indigenous peoples and that this timeline must be respected because “it reﬂects the time needed to understand, analyze, and evaluate the activities under consideration.” (62) ‣ The IFC Performance Standard requires that consultations “provide sufficient time for Indigenous Peoples’ decisionmaking processes.” (63) ‣ The Agreement between the Sami and Norway requires that “[s]ufficient time shall be allocated to enable the parties to carry out genuine and effective consultations and political consideration of all relevant proposals.” (64) ‣ The FAPI Protocol provides that for each project, the parties must reach an agreement on the timing of consultations and establish a reasonable set of deadlines for the process. (65) ‣ The Fundamental Law of the Guna People in Panama does not allow for any exploitation or exploration of the Guna land without the consent of the Guna General Congress, (66) which only meets three times a year. (67) As such, any FPIC process involving the Guna must allow for enough time for the Congress to meet and decide to grant or withhold consent.

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Analysis: What should the Consultation Process look like?

information sharing and other Consultation items ‣ The Peru Consultation Law instructs that consultations must last for a “reasonable period” that allows for “the institutions or organizations of indigenous and native peoples to understand, reflect on and make specific proposals about the legislative or administrative measures that are the subject of the consultation.” (68) ‣ The Philippines Administrative Order has more specific deadlines: • A preliminary consultative meeting will be held within 15 days of the submission of the project proponent’s operation plan to the Regional Office of the National Commission on Indigenous Peoples. Notices of this meeting must be posted in affected indigenous communities at least 5 days prior to the meeting. • The council of elders/leaders will decide whether another meeting is necessary to complete the FPIC process. • The indigenous people have 15 days after the last consultative meeting to consult with members of their own communities. • The elders/leaders may ask for another consultative meeting to discuss additional negotiation points with the project proponent. • 15 days after the community consultation period, the National Commission on Indigenous Peoples will hold an assembly of the indigenous community to determine their decision. (69)

Although the Philippines Administrative Order provides more concrete deadlines, the timeframes for consultation may be too short, depending on the nature and complexity of the project being considered. Especially if the economic stakes are high, indigenous peoples may feel pressured to forgo asking for additional consultative meetings either after the initial presentation of the proposal or after they consult with their communities. In addition, the 5-day period for providing notice to the affected indigenous peoples may not be sufficient to assemble the necessary elements of the community. It is also not clear that the 15 days between the submission of the operation plan and the ﬁrst consultative meeting will be enough time for opponents of the plan to prepare their case against the project (and the Administrative Order says nothing about providing potential opponents outside the community with notice of the meeting or with a copy of the operation plan prior to the meeting).

Information Sharing and Other Consultation Items During the consultation process, full and complete information must be provided to indigenous communities in a manner in which they are able to understand. As such, the protocol should address the manner in which information will be shared, including establishing the form and language of those materials. In addition, many protocols allow for indigenous peoples to seek or be provided with outside expert help to ensure that they are able to fully understand the information being provided. In order for communities to be able to engage outside consultants and experts, some protocols provide that the project proponents should bear the reasonable costs of obtaining this assistance: ‣ The CBD’s Guidelines require early identification and provision of “necessary human, financial, technical and legal resources…to support indigenous and local expertise [and to] facilitate effective indigenous and local community participation in the impact assessment process.” (70) They also require the provision of “accurate, factual and legally correct information.” (71) ‣ The Philippines Administrative Order provides that during a preliminary consultative meeting, to occur within fifteen days after the project proponent has submitted their operation plan to the government: • The project proponent must present the indigenous community with information supporting the proposal, which must include, but not be limited to: • the costs and benefits of the project; • the perceived disadvantages or adverse effects to the community and the measures adopted by the project proponent to mitigate these; • and “a statement of commitment to post performance bond to answer for consequential damages to the community.” (72)

The more open-ended approach taken by the other above protocols allows for the varying traditional decision-making processes to be incorporated into the FPIC consultation timeline. The protocol should reference the need to accommodate these processes, as well as allow for sufficient time for genuine and effective consultations and thorough consideration of all proposals.

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Analysis: What should the Consultation Process look like?

Suriname

If there is any opposition to the proposal, those individuals will be given equal time to present the basis and reasons for their opposition. (73) ‣ The FAPI Protocol has numerous provisions governing the exchange of information and the provision of experts to assist indigenous peoples: • With respect to obtaining expert help, it provides that each party has the right to have technical advisers and lawyers provide them with assistance during the consultation. These outsiders must be selected before the consultation. Indigenous peoples have the right to have the project proponent pay for the reasonable costs of the lawyers and technical experts who will be assisting the indigenous community. (74) • With respect to information exchange, the FAPI Protocol requires that: o All information that is provided must be culturally appropriate in terms of the nature of the information and the quality of the information. This includes providing graphics, maps, posters and videos where possible, rather than relying solely on written language. (75) o Where illiteracy is signiﬁcant within the indigenous community, a prior agreement must be reached regarding the speciﬁc methods for exchanging information. (76) o The project information provided must at least include: ◘ The nature, size and scope of the project; ◘ The duration of the project; ◘ The affected local areas and resources; ◘ A preliminary study of the potential impacts of the project; ◘ The reason or purpose of the project;

◘ The personnel who will likely be involved in all stages of the project; ◘ The specific measures that the project proponent will employ, including measures to mitigate damage and adverse impacts and monitor the implementation and completion of the project; ◘ The potential risks and adverse impacts presented by the project, including but not limited to the social, environmental, cultural and health risks; ◘ The benefits to the community; and ◘ Drafts and final versions of any social and environmental impact studies conducted in connection with the project. (77) o Indigenous communities can request copies of the project financial projections and business plan. (78) o The project proponent must also provide indigenous communities with adequate and complete responses to questions and concerns raised. (79) o Information must be provided sufficiently in advance to facilitate the exchange. (80) • In addition, notably, the FAPI Protocol also allows affected indigenous peoples to request reasonable amounts of financial resources to assist them with the costs of informing members of their community and reaching a decision. (81)

As noted above, for a meaningful FPIC process to take place, full and adequate information sharing must occur. The protocol must speciﬁcally provide for the advanced exchange of all relevant information in a language and medium that is culturally appropriate for the indigenous peoples being consulted. Time and resources must also be made available for the indigenous peoples to engage outside expert assistance to help them fully understand the information they are considering. Turning Rights into Reality: Issues to Consider in Implementing the Right to Free, Prior, and Informed Consent

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Analysis: What should the Consultation Process look like?

ensuring noCoercion Takes Place Ensuring No Coercion Takes Place In order for the consultation and consent process to be “free,” indigenous peoples must not be subjected to any form of coercion during the negotiation and consent process. This includes preventing explicit and implicit threats of force or retaliation, as well as bribery and other forms of corruption. ‣ The FAPI Protocol has extensive provisions aimed at creating a coercion-free environment: • Project proponents, as well all agents acting at their behest or with their knowledge, are prohibited from using or threatening to use violence or intimidation and from offering bribes, gifts, or other questionable or irregular offerings during the consultation and negotiation process. (82) • Those participating in the negotiations must avoid contact with representatives of the other negotiating parties who are not authorized to participate in the negotiations. (83) • Public or private security officers should not be present during the negotiations and consultations and are not permitted on indigenous land during the negotiations. (84) ‣ The Philippines Administrative Order contains numerous provisions to limit coercion: • The project proponent may not: o Use “force, threat, coercion, intimidation, at any degree or in any manner, including those done by individuals or group[s] of persons acting” for the project proponent; o Bring “ﬁrearm/s in the community during visits by the applicant or group of persons acting” for the

project proponent; o Use “bribery or promise any money, privilege, beneﬁt or reward…”; o Engage in “clandestine or surreptitious negotiations with [indigenous peoples], individuals or members of the community concerned done without the knowledge of the council of leaders or elders”; o Provide “to the community or to any of its members of donations of any kind.” (85) • The Administrative Order also prohibits members of the indigenous community from accepting or receiving gifts from the project proponent or accepting any form of bribery. (86) • Other actors, such as non-governmental organizations and local government officials are also prohibited from exerting undue inﬂuence on the community. (87) ‣ The UN-REDD Programme Guidelines provide that the “process is self-directed by the community from whom consent is being sought, unencumbered by coercion, expectations or timelines that are externally imposed… [The] process is free from coercion, bias, conditions, bribery or rewards.” (88)

Anti-coercion provisions should speciﬁcally prohibit all forms of bribery, including promises for payment or provision of anything of value after the conclusion of the FPIC process. These provisions should apply to all involved parties, including the project proponent, indigenous peoples, government officials, independent experts and non-governmental organizations. To limit the likelihood of this sort of improper conduct, contact between individuals working on behalf of the project proponent and indigenous individuals outside of formal meetings should be discouraged. An FPIC protocol should also take care to ensure that indigenous peoples have no cause to fear the use of force or any kind of retaliation for refusing consent or insisting on particular concessions. Government and private security forces should not be present at meeting sites or on indigenous lands during the negotiation and decision-making process. The protocol should also speciﬁcally prohibit the parties from threatening future violence or sanctions after the FPIC process has ended.

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Analysis: Concluding the negotiation Process

Concluding the negotiation Process Concluding the Negotiation Process FPIC protocols must also provide a mechanism to conclude the negotiation and consultation period. Most importantly, it must establish whether the indigenous people will be permitted to have veto power over whether the project proceeds. In many cases, protocols stop short of respecting this part of FPIC and only provide for review sharing or that indigenous peoples’ viewpoints that were expressed during the consultation process will be factored into the government’s decision about the project. ‣ Under the Agreement between the Kitsumkalum and

British Columbia, there are no consent provisions. The Kitsumkalum are consulted but the discussion is only of “suitable accommodation options and interim solutions where appropriate… British Columbia will provide the Kitsumkalum Indian Band with the final decision and rationale in writing.” (89) The Agreement also provides for revenue sharing. ‣ Similarly, the Peru Consultation Law charges the relevant government entity to make the decision on the project. This decision must be “properly justified and involve an assessment of the views, suggestions and recommendations raised by the indigenous and native peoples during the process of dialogue. It also includes the analysis of the consequences that the adoption of a particular measure would have on their collective rights recognized by the Constitution and treaties ratified by Peru [including the ILO Convention No. 169].” (90)

• The Consultation Law also provides that an agreement may be reached between the government and indigenous peoples as a result of the consultation process. This agreement is binding on both parties. • If no agreement is reached, the state entities are still required to “take all necessary measures to ensure the collective rights of indigenous or native peoples.” (91) ‣ Although the IFC seeks to “ensure the free, prior and informed consent” (92) of indigenous peoples affected by their projects, the Performance Standard in fact only provides for consultation and participation.

If the protocol is to provide indigenous peoples with their full FPIC rights, then there must be a stipulated process for the indigenous people to express their decision and the decision must be documented. In addition, if the indigenous community consents to the proposed project, it may wish to do so only under certain conditions, such as promises by the project proponent to limit environmental impacts. In this case, the precise terms of the agreement between the indigenous community and the project proponent must be carefully documented. ‣ The Philippines Administrative Order provides:

• The National Commission on Indigenous Peoples will hold an assembly where the indigenous community will be represented by the head of each household. By a show of hands, the community will express its decision on the project. • The leaders/elders are required to explain the vote and the terms and conditions of a decision granting consent. (93) • Non-consent by indigenous peoples be documented in writing and contain “the speciﬁc reasons for non-consent.” This document “shall be signed/thumb marked by the authorized leaders/elders in every page of the paper” and submitted to the Regional Director. (94) • In the case of a favorable decision, “the agreements and conditions discussed in the [FPIC] process are embodied in a Memorandum of Agreement (MOA) between/among the [indigenous peoples] and the [National Commission on Indigenous Peoples] and any other party equally involved and witnessed by their respective members… The Agreement must be written in English or Tagalog and in the appropriate [indigenous peoples’] language.” (95) • The MOA will contain numerous provisions, including: o The beneﬁts to be derived by the indigenous peoples; o Information to guide the future monitoring and evaluation of the MOA; o The use of all funds to be received by the indigenous communities, including assurances that a portion of these funds are allocated to development projects, social services and/or infrastructure development; o Detailed measures to protect indigenous rights and value systems;

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Analysis: Concluding the negotiation Process

Roraima, Brazil

o Detailed measures to conserve/protect any affected portion of the ancestral domain; o Responsibilities of the project proponent and the host indigenous community. (96)

• In addition, the relevant National Commission on Indigenous Peoples Regional Officer must issue a Certification Precondition that certifies that the FPIC process occurred. The Certification must contain: o Notices of every meeting for purposes of securing FPIC o Minutes of all meetings where the project was presented to the indigenous communities; o Minutes of all consultation meetings ; o Minutes of all meetings negotiating the terms and conditions for granting FPIC; o Minutes of meetings validating the decision of the authorized indigenous representative(s); o Sketch map of the area impacted by the project; o Documentation of the customary practice on consensus building; and o A census of the population of the host indigenous community. (97)

‣ The CBD’s Guidelines provide that “an agreement could be negotiated between the community and the proponent of the development,” the terms of which “could cover the procedural aspects of impact assessments, including the option of a no-action alternative, setting out the rights, duties and responsibilities of all parties, and also address measures to prevent or mitigate any negative impacts of the proposed development.” (98) ‣ The FAPI Protocol requires that written agreements on several issues, including intellectual property, beneﬁt sharing, measures of environmental restoration and mitigation and measures and mechanisms to promote and protect the rights and interest of the affected peoples be reached before the indigenous peoples make any decision on the project. (99) After these agreements have been reached and negotiations have concluded, the decision of the indigenous peoples will be documented. All agreements, including the ﬁnal agreement withholding or granting consent, must be in writing and signed by both parties. (100)

In order to protect the full breadth of FPIC rights, an FPIC protocol must clearly provide indigenous peoples with the right to grant or withhold consent for a project. Consultation stops short of respecting all FPIC rights. The protocol should also ensure that traditional indigenous decision-making processes are employed to arrive at the final determination. For example, it is not clear that the Philippines method of polling the heads of households via the raising of hands is in keeping with the practices of all indigenous communities in the Philippines. Moreover, the fact that this voting is done in the presence of National Commission on Indigenous Peoples officials could subtly influence the voting process. Once a decision is reached, there must be a clear process by which the indigenous decision is documented and acknowledged by all parties. If the indigenous group is granting consent, the document should include all of the conditions the indigenous peoples wish to have imposed on the project, including project timetables, mitigation measures, and benefit sharing. Turning Rights into Reality: Issues to Consider in Implementing the Right to Free, Prior, and Informed Consent

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Analysis: Monitoring and implementation

Monitoring and implementation

Ngong Hills, Kenya

To make the FPIC process meaningful, an FPIC protocol must set out guidelines for how agreements reached during the negotiation process will be implemented, how disputes concerning these agreements will be raised and resolved, and how indigenous peoples can seek recourse if they believe that their FPIC rights have been or are being violated. ‣ The Peru Consultation Law provides for an appeals process for the government denial of an indigenous request that a consultation process be initiated for a particular project. (101) It also provides that any agreement reached pursuant to the negotiation process is binding on both parties and enforceable in the administrative and judicial system. (102) However, it does not explicitly provide a recourse mechanism for indigenous peoples for instances where some aspect of the FPIC process is inadequate and does not provide for monitoring. ‣ Under the Philippines Administrative Order:

• For the implementation of an MOA: An MOA approving a project must include monitoring and evaluation schemes and penalties for non-compliance. (103) o Any complaints about the MOA implementation will be directed to the National Commission on Indigenous Peoples Regional Hearing Office. Decisions by this entity can be appealed to the Commission en Banc and then to the Court of Appeals. However, the National Commission on Indigenous Peoples Regional Hearing Office only acquires jurisdiction over such a complaint after the council of leaders/elders from the relevant indigenous community has certiﬁed that the matter could not be resolved in accordance with traditional conﬂict resolution institutions using customary laws and practices. (104) • For monitoring the FPIC process as a whole: o Sanctions may be imposed if any project proponent, government official, indigenous person or involved NGO commits an act prohibited by the Administrative Order (e.g., bribery). Non-indige-

nous cases are handled by the National Commission on Indigenous Peoples and penalties can include suspension from future activities involving indigenous peoples. Complaints of banned conduct against indigenous individuals are referred to the Council of Elders/leaders and can result in the suspension of the FPIC process until the tribe addresses the prohibited act. (105) o It is also possible to petition the Commission to prevent the issuance of the Certiﬁcation of the FPIC process in the case of an irregularity that “substantially affects the interest of the parties involved.” The Commission can “either declare the proceedings had as a nullity and determine the appropriateness of holding another proceedings or declare the proceedings as already done, and/or impact the administrative sanctions herein.” (106) ‣The UN-REDD Programme Guidelines include the following monitoring/implementation provisions: • “In cases where there is a question on the validity of the FPIC process, an independent evaluation should be undertaken by an institution, to be mutually agreed by all relevant rights-holders, to verify that the process was aligned with the deﬁnition of each of the terms of FPIC as outlined” previously in the document. (107) • The process for seeking recourse should be communicated as part of the FPIC process and decision. (108) • If the conditions upon which an indigenous community based its consent to a project are not met, the community “may review and either reaffirm or refuse consent. This option may be invoked at any stage of programme implementation.” However, if conditions upon which consent was based are being met, “ongoing consent is implied. If there is a disagreement over whether conditions are being met or not, communities can express their grievance with the relevant national level grievance mechanism.” (109)

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Analysis: Monitoring and implementation

Monitoring and implementation • The Guidelines also instruct that a complaint mechanism be established for the Programme, which should: 1) be independent and impartial; 2) be fair and objective in the process and the outcome; 3) be transparent and accountable; 4) be professional and include the hiring of expert consultants when necessary; 5) be accessible; 6) be effective and efficient; 7) provide for grievances to be addressed close to the administrative level and for indigenous dispute-resolution processes to be used whenever possible; and 8) be tailored to the structure, framework, and culture of the UN-REDD Programme. (110) ‣Under the FAPI Protocol, prior to the indigenous communities reaching a decision, written agreements between the parties must be reached on arrangements for monitoring and implementation and conﬂict resolution: (111) • This will include joint monitoring to ensure that the agreements and work plans between the parties are implemented in good faith. (112) • If one party desires, an independent entity will be charged with monitoring compliance with the agreements and work plans. This entity or body can be empowered to submit disputes between the parties to arbitration or a previously-agreed upon dispute resolution body. (113) • Mechanisms for resolving all disputes about the interpretation and allegations of violations of the agreements or work plans will be agreed to, including identifying any issues that will must be resolved through binding arbitration. (114)

The above protocols take two general approaches to implementation and monitoring. The first is taken in the Philippines Administrative Order, where specific procedures are laid out to channel parties’ disputes and complaints, and in the UN-REDD verifica-

tion process, where an independent institution that verifies specified items about the FPIC process. The second is taken by the FAPI Protocol, which leaves it up to the parties to negotiate monitoring, implementation, and dispute resolution agreements prior to the indigenous peoples making a decision, and by the UNREDD complaint mechanism. Allowing the parties to negotiate the implementation and monitoring mechanisms provides more flexibility to the process, including the ability to choose an entity to monitor compliance or submit certain disputes to binding arbitration, as appropriate. However, it also adds a potentially contentious item to the list of issues that must be negotiated prior to indigenous peoples making a decision about the project. As such, leaving the issue of monitoring and implementation open for debate could prolong or even derail the FPIC process. If this method is chosen, special attention must be paid to ensuring that the indigenous people have sufficient knowledge and/or expert assistance to be able to engage in the negotiations on equal footing with the project proponent. Nevertheless, specifying a mechanism for monitoring and implementation could result in a lack of flexibility and/or reliance on ineffective systems or entities. For example, in the case of the Philippines Administrative Order, much of the responsibility of monitoring and dispute resolution rests with the regional authorities of the National Commission on Indigenous Peoples, meaning that a failure on the part of this entity could significantly impact the integrity of the FPIC process in the Philippines. As such, if this method is chosen, the protocol should include a robust appeals process to make sure that one entity is not able to derail the entire FPIC process.

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overall assessment All of the protocols and guidelines discussed above have varying strengths and weaknesses. These pros and cons stem not only from the particular provisions of the protocols, but also government/entity

British Columbia

from how these guidelines have been implemented in practice, to the extent that this information is available.

Pros

• Different treaties negotiated with different tribes provide opportunities to address individual tribes’ needs. • Treaties signed with various bands include mandatory beneﬁt sharing and cover “claimed or asserted territory.”

Canada

Norway

Panama

• Apply to all “contemplated” conduct of the Federal Government and to “potential or established” indigenous rights.

•Recognize that the Sami have a right to be consulted on a wide range of activities that affect them directly •Require that Sami be fully informed about all relevant concerns and questions as early as possible and at all stages of the process • Allow Sami Parliament to independently identify matters where it believes it should be consulted. • Clearly requires Guna decisionmaking body to have veto power over any exploration/exploitation of Guna land • Developed by Guna people, not imposed from the top down; therefore permits Guna self-determination in deciding what the law should/should not contain • Panamanian government has bowed to strong Guna opposition to particular projects

Cons

• Only provides for consultation and beneﬁt sharing; does not grant indigenous peoples the right to consent • Do not cover activities by third parties that do not involve the government • Each treaty limited to a narrow set of activities; do not apply to all activities that could affect the tribe.

• Only provides for consultation and accommodation; does not grant indigenous peoples the right to consent. • Consultation and accommodation only required when potential impact is deemed “adverse,” by the Federal Government, not by indigenous peoples • Does not cover activities by third parties that do not involve the government •Only apply to government actions and not third party activities •Only triggered by activities that directly affect Sami •Do not recognize Sami right to consent

•Not officially recognized by Panamanian government though it has acquiesced to numerous elements; therefore, the government could change behavior and approve projects in the future that affect the Guna without recognizing Guna FPIC rights or the Fundamental Law

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Overall Assessment government/entity

Pros

Cons

Paraguay

• Developed by indigenous peoples • Likely that the Paraguayan government will adopt it • Broad coverage of activities, including state and private • Requires all parties to agree on dispute resolution mechanisms and timing of the consultations • Contains detailed provisions to prevent coercion of indigenous communities during the FPIC process • Contains mechanisms to assist indigenous people with costs of FPIC process, including outside expert assistance

•Difficult to follow; repetitive •Leaves many details for debate among parties, increasing the likelihood of stalled negotiations or that indigenous communities are not as informed or ﬁnancially prepared as governments or private entities are to deal with a long, complicated negotiation process

Peru

•Provides for consultation on a wide variety of government activities •Fully endorsed by Peruvian government •Effectiveness of law does not appear to depend on resolution of land titling disputes •Allows indigenous people to initiate the consultation process regarding speciﬁc measures without depending on the government to initiate it ﬁrst • Provides for creation of official database of indigenous and native peoples including information on the range of indigenous settlement and usage patterns, which could provide the government with a better understanding of which projects will impact indigenous peoples.

•Only applies to government and not to private entity projects •Only applies to activities with a “direct impact on the collective rights” of indigenous and native peoples (nor does it apply to “positive” projects and programs). •Does not provide indigenous peoples with the right to consent to projects, leaving the government with the ﬁnal word if no agreement is reached. •Only requires that indigenous people be consulted after a project contract has been granted. •The database is being compiled by the government, and has not yet been released; indigenous organizations fear that it may exclude certain communities. • Implementing legislation weakened the Consultation Law, which was already critiqued by indigenous peoples. Consultations have yet to take place under the Law.

The Philippines

• One of the most comprehensive attempts at a national FPIC protocol with detailed guidelines • Should apply to wide range of activities • Includes concrete guidelines for negotiation, implementation, and monitoring of FPIC process • Guarantees indigenous peoples the right to consent

• Includes waiver provision whereby any activity solicited by indigenous groups through their leaders that does not involve government license or permission does not require compliance with FPIC • Timetables only provide 15 days for certain parts of FPIC process rather than allowing timing to be conditional upon indigenous needs • Does not include provisions for outside expert assistance • Recourse mechanism leaves signiﬁcant power to the regional representative of the National Commission on Indigenous Peoples • Major defects in application thus far:

o Allows “too much latitude in interpretation by Government authorities thereby allowing companies to bypass customary laws and institutions”; o Simpliﬁed guidelines issued in 2006 allow for “more superﬁcial and accelerated consultations”; o The procedure limits FPIC to areas that the Government has already listed as subject to indigenous rights, thus excluding

huge areas subject to claim that have yet to be formally recognized.”

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Overall Assessment entity

Pros

Cons

CBD

• Speciﬁcally recommend that sufficient human, ﬁnancial, technical and legal resources be provided to indigenous peoples to ensure their effective participation in negotiations. • Provide for invalidation of the FPIC process if it is determined that the inappropriate indigenous representatives were selected to participate in the negotiations.

• Requires a direct impact on indigenous communities to trigger FPIC. • Only apply to governments, not to private entities • Merely voluntary; not binding on any entity

ILO

• Strict with respect to the proper identiﬁcation of indigenous representatives; failure to do so will result in the invalidation of the consultation process. • Call for periodic evaluation of operation of consultation mechanisms with indigenous participation in this evaluation process.

•Has limited application because few countries have signed on •Only applies to governments •Do not provide particularly robust guidance with respect to the procedures that are necessary for a meaningful FPIC consultation process. •Only requires consent in the case of indigenous relocation.

IFC

• Recognizes that there are different deﬁnitions of “indigenous peoples” and that FPIC may apply to groups who have lost their collective attachment to their ancestral lands.

•Although the Performance Standards state that the IFC’s objective is to ensure the “free, prior, and informed consent” of affected indigenous peoples, the Standards themselves only provide for consultation with indigenous peoples.

UN Development Group

• Recognize recognize the need to factor indigenous peoples’ decision-making processes into every step of the FPIC process, including planning, implementation and project wrap-up. • Stipulate that indigenous peoples should participate in the FPIC process through their own freelychosen representatives.

•Place onus for complying with FPIC on the State and not private entities. •State that “consent to any agreement should be interpreted as indigenous peoples have reasonably understood it” and do not provide any recourse mechanisms except for conducting studies and polling of indigenous peoples to measure the progress of a program.

UN-REDD Program

• Recognizes that indigenous peoples’ decision-making timeline must be respected. • Provide that an independent veriﬁcation of the FPIC process and results should be undertaken by an outside party and require that a recourse mechanism be developed. •Indigenous people maintain freedom to withdraw from the project if they have evidence of violations of the agreed-upon guidelines.

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Conclusion The way FPIC plays out at the community and national levels will be critical in the years to come. A few – among many – of the challenges that will need to be addressed include: 1) Conceptually: Who ought to have the right to consent? For what kinds of projects? 2) Adequate processes: How can authentic community decision-making be supported by FPIC? 3) What is consent: Majority vote? Consensus? 4) How can FPIC be implemented in contexts of weak governance and increasing interest in indigenous lands and resources? 5) How can the asymmetry between indigenous communities and larger entities, such as governments and corporations, be addressed? These are all questions that indigenous peoples are facing the world over, especially given increasing pressures on their lands and resources. FPIC protocols at the community and national levels, as well as within agency guidelines and corporate standards, will continue to evolve. This document sought to identify some of the questions that should be raised, either in those documents or as a community is going through a consultation process. As experiences with FPIC implementation – successful and otherwise – multiply, we will seek to update this document. To that end, please send comments and any additional documents that should be considered our way. Things are rapidly evolving. Since the ﬁrst draft of this document in the summer of 2011, several new laws have passed; guidelines have been further developed; and consultation processes undertaken. We have updated it since, but the document will perforce be dated soon. We therefore encourage submission of FPIC treaties, protocols, guidelines, etc. that we may have missed, or that are yet being developed. Any such materials can be sent to fpic@rffny.org and/or fpic@cs.org. It is our hope that we’ll be able to publish an update that both includes more materials, and addresses other questions as they arise. We hope you ﬁnd this document useful, and encourage your comments and feedback. Rainforest Foundation US May 2013

Cultural Survival

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sources (1) See, for example, IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of Toledo District (Belize), October 12, 2004, footnote No. 123 (2) Jennifer Corpuz, Onel Masardule and Mikhail Todyshev, “Indigenous Peoples’ Free, Prior and Informed Consent in the Convention on Biological Diversity: An Overview,” Indigenous Peoples’ Contributions to COP-8 of the CBD (March 2006), http://www.ffla.net/new/es/bibliografia-recomendada/doc_download/63-indigenous-peoples-free-prior-and-informed-consentin-the-convention-on-biological-diversity.html. (3) International Labour Organization, Convention concerning Indigenous and Tribal Peoples in Independent Countries, Art. 6, June 27, 1989, http://www.ilo.org/ilolex/cgilex/convde.pl?C169 (hereinafter, “ILO No. 169”). (4) Ibid, Article 7 (5) Convention on Biological Diversity, Art. 8(j), December 29, 1993, http://www.cbd.int/convention/text/. (6) Secretariat of the Convention on Biological Diversity, Akwé: Kon Guidelines, 2004, http://www.cbd.int/doc/publications/akwe-brochure-en.pdf (hereinafter, “CBD Guidelines”). (7) Constitution of the Bolivarian Republic of Venezuela, Art. 120 (1999) (English translation from original legal text). (8) Due Process of Law Foundation, The Right of Indigenous Peoples to Prior Consultation: The Situation in Bolivia, Colombia, Ecuador, and Peru, p.9, May 5, 2011, http://www.oxfamamerica.org/files/dplf-executive-summary.pdf. (9) Republic of the Philippines, An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds therefor, and for Other Purposes, Sec. 16-17, October 29, 1997, http://www.metagora.org/training/encyclopedia/IPRA_IRR.pdf. (10) See Law 29785 of 2011, http://www.congreso.gob.pe/ntley/Imagenes/Leyes/29785.pdf (11) National Commission on Indigenous Peoples, Revised Guidelines for the Issuance of Certification Precondition and the Free and Prior Informed Consent in Connection with Applications for License, Permit, Agreement or Concession to Implement and or Operate Programs/Projects/Plans/Business or Investments Including Other Similar or Analogous Activities or Undertaking that do not Involve of License, Permit, Agreement or Concession but Requires the Free and Prior Informed Consent of ICC/IP Community in Ancestral Domain Areas in Accordance with R.A. 8371 (2002) (hereinafter, “NCIP Administrative Order”). (12) International Finance Corporation, World Bank Group, Performance Standard 7 –V2: In-

digenous Peoples, December 1, 2010, http://www.ifc.org/ifcext/policyreview.nsf/AttachmentsByTitle/Phase3_PS7_Clean_Highlights/$FILE/Phase3_PS7_Clean_Highlights.pdf (hereinafter, “IFC Standard”). (13) See UN REDD Programme, “Guidelines on Free, Prior and Informed Consent’” January 2013, available at http://www.unredd.org/Launch_of_FPIC_Guidlines/tabid/105976/Default.aspx (14) Amy K. Lehr and Gare A. Smith, Implementing a Corporate Free, Prior and Informed Consent Policy: Beneﬁts and Challenges, p.5, May 2010, http://www.foleyhoag.com/NewsCenter/Publications/eBooks/~/media/2AF1DB5B36FF46A39C18E2C7AA8F6D2A.ashx. (15) Sohn, J, (ed) (2007), Development Without Conﬂict: The Business Case for Community Consent, World Resources Institute, p. 3 (16) More recent drafts than the ones reviewed in this paper may exist. The fact that a protocol is referenced in this paper should not be taken as an indication that this version is currently in force or effect. (17) Government of British Columbia, The New Relationship with Aboriginal People, http://www.newrelationship.gov.bc.ca/shared/downloads/new_relationship.pdf. (18) E.g., Consultation and Revenue Sharing Agreement on Forest and Range between the Kitsumkalum Indian Band and Her Majesty the Queen in Right of the Province of British Columbia, May 11, 2011, http://www.newrelationship.gov.bc.ca/shared/downloads/Kitsumkalum_may_2011.pdf (hereinafter, “Kitsumkalum Agreement”). (19) Note that because the Guna’s Fundamental Law is not available in English, it is not included in the Appendices to this Report. The Report will also not quote directly from the Fundamental Law because of the lack of official English translation. (20) Federation for Self-Determination of Indigenous Peoples (FAPI), Proposed Protocol for the Process of Consultation and Consent with Indigenous Peoples of Paraguay, May 2011 (unoffi cial translation from original Spanish) (hereinafter FAPI Protocol). (21) “Peru passes indigenous rights law without consent of the Indians,” Survival for Tribal Peoples, April 4, 2012, http://www.survivalinternational.org/news/8251. (22) The Indigenous Peoples Rights Act of 1997, Sec. 13-20. (23) NCIP Administrative Order.

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sources (26) Government of Canada, Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulﬁll the Duty to Consult, 12, March 2011, http://www.ainc-inac.gc.ca/ai/arp/cnl/ca/intgui-eng.pdf (emphasis added) (hereinafter, “Canada Consultation Guidelines”). (27) Kitsumkalum Agreement, Sec. 1.20. (28) IFC Standard, Para. 16. (29) IFC Standard, Para. 17. (30) IFC Standard, Para. 6. (31) FAPI Protocol, Preamble. (32) FAPI Protocol, Para. I.1.1. (33) FAPI Protocol, Terms of Agreement, Para. 1(c). (34) Congress of the Republic of Peru, Law of the Prior Consultation of Indigenous and Native Peoples, as Recognized in the Convention 169 of the International Labour Organization, Art. 10, May 19, 2010 (unofficial English translation from Spanish original) (hereinafter, “Peru Consultation Law”). (35) NCIP Administrative Order, Sec. 6. (36) Kitsumkalum Agreement, Sec. 1.2, 1.12. (37) International Labour Organization, Convention concerning Indigenous and Tribal Peoples in Independent Countries, art. 6.1(a), June 27, 1989, http://www.ilo.org/ilolex/cgilex/convde.pl?C169 (38) Procedures for Consultations between State Authorities and the Sami Parliament [Norway], Sec. 2, May 11, 2005, http://www.regjeringen.no/en/dep/fad/Selectedtopics/Sami-policy/midtspalte/PROCEDURES-FOR-CONSULTATIONS-BETWEENSTA.html?id=450743 (hereinafter, Sami Agreement). (39) Canada Consultation Guidelines, p.12. (40) CBD Guidelines, Para. I.1. (41) Convention No. 169, Art. 7.1. (42) Sami Agreement, Sec. 2. (43) Kitsumkalum Agreement. (44) Canada Consultation Guidelines, p.12. (45) ILO, Indigenous & Tribal Peoples Rights in Practice: A Guide to ILO Convention No. 169, p.61, 2009, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_106474.pdf (hereinafter, “Guide to Convention No. 169”). (46) NCIP Administrative Order, Sec. 3. (47) FAPI Protocol, Preamble. (48) NCIP Administrative Order, Sec. 4(a). (49) Peru Consultation Law, Art. 7. (50) IFC Standard, Para. 10. (51) United Nations Development Group, Guidelines on Indigenous Peoples’ Issues, 28, February 2008, http://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf (hereinafter, “UN Development Group Guidelines”). (52) Guide to Convention No. 169, p.61. (53) Guna Yala, Fundamental Law, Part I, Chap. VII, Art. 44. (54) See UN REDD Programme, “Guidelines on Free, Prior and Informed Consent’” January 2013, available at http://www.unredd.org/Launch_of_FPIC_Guidlines/tabid/105976/Default.aspx (hereinafter UN-REDD Guidelines), p. 8. (55) IFC Standard, Para 10. (56) UN Development Group Guidelines, p.28. (57) Kitsumkalum Agreement, Appendix B. (58) Sami Agreement, Sec. 6. (59) FAPI Protocol, Para. II.1. (60) NCIP Administrative Order, Sec. 14(c). (61) UN-REDD Programme, Applying the Principle of Free, Prior and Informed Consent in the UN-Redd Programme in Vietnam, 18, 21, August 2010. (62) UN-REDD Guidelines, p.8. (63) IFC Standard, Para 10. (64) Sami Agreement, Sec. 6. (65) FAPI Protocol, Time Arrangements, Para. 1 (66) Guna Yala, Fundamental Law, Part II, Chap. 14, Art. 210. (67) Guna Yala, Fundamental Law, Part II, Chap. 1, Article 1. (68) Peru Consultation Law, Art. 4(e). (69) NCIP Administrative Order, Sec. 14 (c)-(e). (70) CBD Guidelines, Para. 18. (71) CBD Guidelines, Para. 53. (72) NCIP Administrative Order, Sec. 14(c).

(73) NCIP Administrative Order, Sec. 14(c). (74) FAPI Protocol, Specialists and External Consultants, Para. 1. (75) FAPI Protocol, Sharing Information, Para. 2. (76) FAPI Protocol, Sharing Information, Para. 2. (77) FAPI Protocol, Sharing Information, Para. 3.l. (78) FAPI Protocol, Sharing Information, Para. 3.k. (79) FAPI Protocol, Sharing Information, Para. 3.m. (80) FAPI Protocol, Sharing Information, Para. 4. (81) FAPI Protocol, Para II.4. (82) FAPI Protocol, Environment Free of Coercion. Unauthorized Contact and Promises, Para. 1. (83) FAPI Protocol, Environment Free of Coercion. Unauthorized Contact and Promises, Para. 3. (84) FAPI Protocol, Environment Free of Coercion. Unauthorized Contact and Promises, Para. 4. (85) NCIP Administrative Order, Sec. 31 (a). (86) NCIP Administrative Order, Sec. 31 (b)-(c). (87) NCIP Administrative Order, Sec. 31(d). (88) UN-REDD Guidelines, p.8. (89) Kitsumkalum Agreement , Appendix B. (90) Peru Consultation Law, Art. 15. (91) Peru Consultation Law, Art. 15. (92) IFC Standard, Objectives. (93)NCIP Administrative Order, Sec. 14 (c). (94) NCIP Administrative Order, Sec. 21. (95) NCIP Administrative Order, Sec. 22. (96) NCIP Administrative Order, Sec. 23. (97) NCIP Administrative Order, Sec. 18. (98) CBD Guidelines, Para. 21. (99) FAPI Protocol, Terms of the Agreement, Para. 1. (100) FAPI Protocol, Evidence of the Agreements and their Mandatory Nature, Para. 1. (101) Peru Consultation Law, Art. 9. (102) Peru Consultation Law, Art. 15. (103) NCIP Administrative Order, Sec. 23. (104) NCIP Administrative Order, Sec. 25. (105) NCIP Administrative Order, Sec. 32. (106) NCIP Administrative Order, Sec. 34. (107) UN-REDD Guidelines, p. 16. (108) UN-REDD Guidelines, p. 15. (109) UN-REDD Guidelines, p. 14. (110) UN-REDD Guidelines, p. 18-19. (111) FAPI Protocol, Terms of Agreement, Para. 1. (112) FAPI Protocol, Independent and Participatory Monitoring, Para. 1. (113) FAPI Protocol, Independent and Participatory Monitoring, Para. 2. (114) FAPI Protocol, Independent and Participatory Monitoring, Para. 2.

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