Free Prior and informed consent (FPIC):

You might have heard the term FPIC floating around more and more in the last few years. It’s been gaining much-needed momentum, especially in regard to indigenous groups, their land rights, international development, and academic research.

But what is it?

FPIC stands for Free, Prior, and Informed Consent. It’s a concept which ensures that all participants in activities which affect their communities are not only consulted but fully informed and allowed to self-determine their course of action. In theory, it’s a means by which communities have the power to decide their own future and determine how their relations with government, civil society, and the private sector proceed.

The specifics:

The UN’s Permanent Forum on Indigenous Issues (UNPFII) has laid out some simple, easy to understand ground rules on FPIC:

Free – there must not be coercion or manipulation of participants – meaning that the consent process is wholly self-directed by those who will be affected.

Prior – meaning that time is provided in advance, which ensures that the consultation process can be completed before any activities are begun.

Informed – participants must receive and understand the information and key outcomes of the project – including size, scope, reason, duration, pace, and long-term effects. Groups should also be informed and kept up to date on reports which assess and communicate the economic, environmental, and cultural impacts of the project. Language must be context and audience specific.

Consent – ensuring that participants are consulted, have a voice, and are allowed to interact and decide on each of the above pillars.

Although these guidelines seem to be clear, there’s a lot of discussion about what they actually mean, and what constitutes the necessary actions required under the definitions. There’s also a strong discourse regarding the rights-based approach which FPIC uses in ensuring these definitions are accepted and implemented.

Why is there a focus on Indigenous rights?

Why does the conversation focus on Indigenous peoples? Doesn’t everyone have the right to FPIC? It’s important to note that although I have been focusing on FPIC as it applies to Indigenous communities and civil society in my research, it is now being implemented more widely. FPIC has successfully emerged as a global norm, but its original debut on the world stage came with its direct reference and inclusion in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It is also clearly referenced in ILO Convention 169. The UNDRIP takes a more aggressive and comprehensive explanation and interpretation of FPIC in its articles. This basis in international conventions and guiding documents which specifically relate to the expression and interpretation of our universal human rights in the context of indigenous peoples, and the addition of FPIC in those documents ties it closely to indigenous issues.

Although good practice guidance is linking FPIC with universal human rights, it is not explicitly linked. As a result of this relationship, we most often encounter FPIC when we examine cases between indigenous communities and their relations to their governments and to international actors.

Does it work?

It’s challenging to make a definitive statement on FPIC. There has certainly been an impressive amount of progress, and FPIC’s adoption as a global norm is without question a step in the right direction. But, as usual, the issue is in the details of definition and implementation. Reflecting on relevant research, including that by Sawyer & Gomez in The Politics of Resource Extraction: Indigenous Peoples, Multinational Companies, and the State (2012), we can start to gain a more comprehensive understanding of how FPIC works in application. They point out that despite the many legal instruments, policies, and laws which have been created, indigenous peoples are facing greater “discrimination, exploitation, dispossession, and racism”. Further, they highlight that this dissonance between protective law and reality for indigenous communities is not just an issue between law and its implementation.

There are definitional issues where FPIC is applied, especially in granting legal recognition. Processes and instruments are often difficult to apply, challenging to access, and expensive to implement. The reality on the ground of carrying out a comprehensive FPIC assessment is convoluted and difficult in the best of circumstances. As a result there are often groups and voices which are silenced, due to issues in comprehensive recognition of stakeholder groups. Official recognition of community identity is also a challenge, as concepts and identities are often contested by different agents (eg Government, Private sector, Civil Society, and the groups themselves).

There are also divergent ideas of modernity, development, and harm. It is impossible to generalize community response to extractive and development focused initiatives. There might be groups which do not oppose the use of their lands and resources and welcome the compensation.

Despite these differences, there are often different expectations when projects do go forward from what is promised in the negotiations and FPIC consultation and what is delivered. There is also case after case of a lack of risk analysis and foresight on the negative impacts to social cohesion which result from issues related to recognition and negotiations.

The greater challenge, as identified by Sawyer and Gomez, is that existing right definitions, especially those that relate to indigenous groups are restrictive. Indigeneity itself is restrictively defined. By codifying indigeneity, rights can only be claimed under pre-agreed circumstances, and the groups who define those circumstances often do not represent the subjects.

Further, the existence of state-private alliances compromises the provision and protection of rights for marginalized or vulnerable populations who rely on the government to negotiate on their behalf – often in favor of private interests.

Another factor is continued affirmative consent. It is important to maintain FPIC throughout the project life-cycle, re-assessing and informing communities when project details and deliverables change. Who provides consent, for what time period, and who are the responsible controllers are also contested.

Where we see things changing:

We see some private enterprises (Coca-cola and Pepsi-Co) acting to implement FPIC principles in their supply chain. We also see greater support and alliances between civil society, government, and private sector for FPIC. This has a strong effect on the further adoption of FPIC, and in supporting its validity on the international stage. Its increased adoption and visibility also allows for communities to be sensitized to their rights and increases pressure on business and government to abide by the norm of FPIC. Which is good news!






Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.