68 | TRAINING MANUAL ON FREE, PRIOR AND INFORMED CONSENT (FPIC) IN REDD+ FOR INDIGENOUS PEOPLES
have the right to stop or suspend any project that has not satisfied the requirement of this consultation process in accordance with this Act.” Under Chapter I, Section 5 of the FPIC Guidelines on 2006 developed by the NCIP, FPIC is defined as the consensus of all members of the ICC/IPs, which is determined in accordance with their respective customary laws and practices that is free from any external manipulation, interference and coercion and obtained after fully discussing the intent and scope of the plan/program project activity, in a language and process understandable to the community. The FPIC is given by the concerned ICCs/IPs upon the signing of the Memorandum of Agreement (MOA) containing the conditions/ requirements, benefits as well as penalties of agreeing parties as a basis for the consent.
b. Australia Under Chapter VII, Section 68 of Aboriginal Land Rights (Northern Territory Act 1976) as: (1) “A road shall not be constructed over Aboriginal land unless the Land Council for the area in which the land is situated consents, in writing, to the construction. (2) A Land Council shall not give a consent referred to in sub-section (1) unless the Land Council is satisfied that;(a) the traditional Aboriginal owners (if any) of the land concerned understand the nature and purpose of the proposal to construct the road and, as a group, consent to it; and (b) any Aboriginal community or group that may be affected by the construction of the road has been consulted and has had adequate opportunity to express its view to the Land Council.”
c. Peru In September 2011, Peru passed the law of the Right to Prior Consultation with indigenous or Tribal Peoples in line with the ILO Convention 169 that Peru had earlier ratified. Under this law, several articles address the right to FPIC, participation, good faith negotiations, absence of coercion, and intercultural dialogues.
6.2. Policies of International Financial Institutions and Multilateral Banks on Indigenous Peoples and FPIC a. European Bank for Reconstruction and Development The European Bank for Reconstruction and Development Environmental and Social Policy issued in May 2008 recognizes that for the rights of indigenous peoples to be upheld enabling them to engage in partnerships where they so chose, that their FPIC must be obtained. Its policy states: “Need for Free, Prior and Informed Consent. This Performance Requirement recognises the principle, outlined in the UN Declaration on the Rights of Indigenous Peoples, that the prior informed consent of affected Indigenous Peoples is required for the project-related activities identified in paragraphs 31–37, given the specific vulnerability of Indigenous Peoples to the adverse impacts of such projects.” Where clients propose to commercially develop natural resources in indigenous peoples lands the client is required to: “enter into good faith negotiation with the affected communities of Indigenous Peoples, and document their informed participation and consent as a result of the negotiation.” (Doyle, 2008) FPIC is therefore seen as the necessary framework for any negotiations with indigenous peoples to ensure “fair and equitable sharing of benefits.”9 9
Doyle, Cathal, 2008, Free Prior Informed Consent (FPIC) – a universal norm and framework for consultation and benefit sharing in
relation to indigenous peoples and the extractive sector, Paper prepared for OHCHR Workshop on Extractive Industries, Indigenous Peoples and Human Rights, Moscow.