Free, prior and informed consent

The United Nations Food and Agricultural Organisation has defined the concept of Free Prior Informed Consent as the following:[3]

• Firstly Free simply means that there is no manipulation or coercion of the Indigenous People and that the process is self-directed by those affected by the project.
• Secondly Prior implies that consent is sought sufficiently in advance of any activities being either commenced or authorised, and time for the consultation process to occur must be guaranteed by the relative agents.
• Informed suggests that the relevant Indigenous people receive satisfactory information on the key points of the project such as the nature, size, pace, reversibility, the scope of the project, the reason for it, and its duration. This is the more difficult term of the four, as different groups may find certain information more relevant. The Indigenous People should also have access to the primary reports on the economic, environmental cultural impact that the project will have. The language used must be able to be understood by the indigenous peoples.
• The source does not define Consent. It is granted or withheld after a process that involves consultation and participation. However, mere consultation by itself is not a substitute for actual consent.[4] The UN Working Group on Business and Human Rights notes that indigenous peoples "should determine autonomously how they define and establish consent".[5]

The UNPFII requires that Indigenous People should be consulted in a way which is appropriate for their customs. This means that not every member will have to agree. This has been criticised by some [women's rights] groups. The Indigenous People will determine who is to be consulted and must effectively communicate this with the Government and Developers. It is the duty of the state to make sure that FPIC has been carried out, if it has not then it is their issue to redress, not the company or the people wishing to carry out the project.[6] The International Labour Organization requires that consultation takes place in a climate of mutual trust and circumstances are considered appropriate if they create favourable conditions for reaching agreement and consent. In a pilot study by the UN-Reducing Emissions from Deforestation and forest Degradation UN-REDD of FPIC application in Vietnam the following steps were required: (1) preparation, (2) Consultation with local officials (3) Recruitment of Local Facilitators (4) Training of the local facilitators, (5) awareness raising (6) Village Meeting (7) recording the decision (8) Reporting to UN-REDD Vietnam (9) Verification and evaluation. The majority of issues with this policy was the recruitment of the Local Facilitators, while they were able to discuss the process in a language that Indigenous Peoples understood there was mistrust towards them and a fear that they had been bribed.[7]

The International Labour Organization (ILO)[13] has been working with indigenous people since the 1920s, it currently has 187 member states, including New Zealand. ILO Convention 169 (the Convention)[14] on Indigenous and tribal peoples is an international treaty adopted by the ILO in 1989. The Convention aims to overcome discriminatory practices affecting Indigenous People and enable them in the decision making process. The fundamental foundations of the Convention are participation and consultation. The requirement for consultation falls upon the Government of the state and not on private persons or companies, this may be delegated but ultimately the responsibility rests on the government.[15] The need for consultation of IPs is written throughout the Convention a number of times and is referred to in : Articles 6, 7, 16 and 22. Article 6(1) states that governments should:

“Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly" '

Article 6 (2) states that this consultation will be carried out in good faith and in a form that is appropriate to the circumstances. The aim of this consultation process is to achieve an agreement or consent to the purposed development.[16] The Convention does not allow Indigenous People to veto any developments; the condition is for mere consultation not consent. The supervisor bodies of the ILO have stated that the consultation process cannot only be information sharing that there must be a chance for the Indigenous People to influence the decision making process. If consent is not achieved the nation-state must still respect other areas of the convention that include the Indigenous peoples right to their lands. Such as Article 16 (2) requires that free informed consent must be given where is the relocation of people.[17] The treaty is legally binding on all states that ratify it, if a state chooses to ratify they may need to adjust domestic legislation. In nations such as NZ domestic legislation such as the Resource Management Act 1991 refers to the need to consider in developments Maori relationship with land and water sites.[18] This spiritual and practical connection that Maori have to the land has been considered in a number cases before the court including the supreme court case of Paki v Attorney General.[19]

The United Nations describes FPIC both directly and indirectly in numerous conventions and treaties. One of the most direct is located in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Article 19 states:

"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.[20] ”

Article 32 of UNDRIP requires that consultation is carried out with Indigenous Peoples before states can undertake projects that will affect Indigenous People Rights to land, territory and resources [21] The above Articles only requires Consultation, however Article 10 requires that there is informed consent before the relocation Indigenous Peoples from their land.[22] This allows Indigenous People the right to decide where they live and gives them the power stop any development which they disagree with.

The Universal Declaration of Human Rights (UDHR) is the most universally accepted standard of Human Rights. It does not directly mention FPIC but it does express the importance of Self- determination of all Peoples in Article 1. Article 7 declares that all are equal before the law, this means that one person has no more right to another in a nation, this is further endorsed by Article 17 which states that every person has the right to own property and that he shall not be arbitrary deprived of his property.[23] The right for Self-determination is further protected in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), in Article 1 of both Documents. This includes economic self-determination, which for many IP is the control of their natural resources.

The ICCPR in Article 27 states that minorities shall not be denied access to their culture, in the Human Rights Committee (HRC) in General Comment 23, have found this meaning to include the right of Indigenous People to their land and resources. The HRC has interpreted this to mean that states have a positive duty to engage with IP prior to any development or granting of resource concession in IP lands.[24]

The Committee on Economic, Social and Cultural Rights (CESCR), the supervisory body of the ICESCR, has even stated in their general comment No.23 that if Indigenous People's land has been taken without informed prior consent then they have the right to restitution or the return of their land or resources. This comes from their interpretation of Article 15 of the ICESCR . Article 15 protects Indigenous People's right to participate in their cultural life. The Comment by the CESCR is important as it goes beyond mere consultation. The need for FPIC has also been called upon by the Committee on the Elimination of Racial Discrimination (CERD) which requires that no state shall make a decision concerning the rights of IPs without their consent. The Convention on the Elimination of All Forms of Racial Discrimination (CERD) encourages Indigenous Peoples participation in decision making. However these are not legally binding decisions, only recommendations [25]

The World Bank was one of the first multilateral financial institutions to create guidelines to protect the rights of Indigenous People's in the 1980s, when it recognized that development negatively impacted the lives and cultures of Indigenous People. Its first policy was in 1987. It was designed by Bank staff without consultation of Indigenous People and was a statement on the need to protect Indigenous People's. Then in 1991 the Bank's Operational Directive 4.20 document acknowledged the need for participation of Indigenous People in the consultation process.

The subsequent World Bank Policy on indigenous peoples was released in 2005, OP 4.10 focused on the reduction of poverty. In doing so the bank identified the intrinsic link that Indigenous People have with the land and the need for a consultation process which fully respects the human rights, human dignity, economics and culture of the people involved. The Bank stated that it will not lend money to a state or company unless there has been Free Prior Informed Consultation with the local Indigenous Population and that there is broad community support for the development.[26] Critics have questioned why the term "consultation" has been used as opposed to consent. Stating that it means IP are not able to decline a project if they do not agree with it. Furthermore, "community" is an ambiguous term.[27] In August 2016 the World Bank adopted its new Environmental and Social Standards, including Environmental and Social Standard 7 (ESS7) on Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities (indigenous peoples, "IPs"), which requires Free Prior Informed Consent if the project will:

• have adverse impacts on land and natural resources subject to traditional ownership or under customary use or occupation;
• cause relocation of IPs from land and natural resources subject to traditional ownership or under customary use or occupation; or
• have significant impacts on IPs cultural heritage that is material to the identity and/or cultural, ceremonial, or spiritual aspects of the affected IPs’ lives.[28]

Bolivia ratified ILO Convention 169 and in 2007 it also formally incorporated UNDRIP into its municipal law. In 2009 the nation also included the duty to consult Indigenous People's in its constitution, this is however a much less radical version of the draft, which required that consent be given for the exploration of all resource activities. These legal requirements are very significant in a nation that has a wealth of natural resources and a large Indigenous Population. The risk of giving Indigenous People this type of power to veto government projects is an increase social conflict in certain regions. This was seen with the conflict surrounding the Isiboro Se´cure National Park and Indigenous Territory (TIPNIS). A road was planned through the Park, coca growers were in favour of the project as it would expand their business. The Indigenous Population however opposed the idea, saying that consent should be needed for mega development in Indigenous Peoples territories. The result was large protests in La Paz. The fear was of damage to the vital river system, illegal logging and altering habitats of endangered animals in the area.[35] The state engaged in consultation with the Indigenous Peoples, but this amplified the problem, with activists critiquing the governments lack of legal framework to protect Indigenous People. The government claimed that the expectations of the Indigenous People were unrealistic.[36]