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.
The Philippines Turning Rights into Reality: Issues to Consider in Implementing the Right to Free, Prior, and Informed Consent