Author: Dr Emma Wilson
Free, prior and informed consent (FPIC) is a legal requirement in international hard and soft law, some national law, and some industry good practice standards. It is also a philosophy of respectful community engagement. Applying the spirit of FPIC in all community engagement will help companies and government agencies to build trust and avoid conflict.
This paper explains the importance of FPIC, shows which international instruments require FPIC, how it is interpreted in different situations or by different stakeholders, and discusses the actual process of negotiating and obtaining FPIC. We argue that there is a strong business case for both governments and industry to engage in FPIC processes with communities prior to making policy decisions or undertaking activities that will have a significant impact on indigenous peoples’ way of life or their resource base.
The paper shows how international ethical standards are implemented in practice, against
a lack of shared understanding about how they should be interpreted, and explores operational challenges such as uneven application of standards, the importance of early engagement, the roles
of government and companies, and issues of identifying who should give or withhold consent. Special attention is paid throughout to indigenous people’s perspectives.
Recommendations
• Indigenous communities should develop their own FPIC protocols: This allows a community to build consensus and establish their priorities and favoured procedures in advance of any project. For developers, it provides clarity and reassurance about appropriate procedures and community representation.
• Government and companies need to build their own capacities: Representatives need to spend time in the communities to build their own understanding of the context and to build mutual trust.
• Communities need to be consulted in the earliest stages of industrial development: It is a big risk for companies to invest in exploration activities if local communities have not been adequately consulted in advance.
• Documenting the process provides transparency, clarity and commitment: A documented process offers clarity to all participating parties and provides evidence and reassurance to third parties such as investors.
• A ‘No’ needs to be respected: If the outcome of an FPIC process is a ‘No’, then this should be formally documented and respected.
The agreement should stipulate a minimum period during which no further approaches will be made to the community. In addition, an alternative land-use designation may be sought to make the decision permanent.
• Consent needs to be maintained: Parties should be able to revisit the agreement and review and revise it if there are significant changes
in circumstances. Significant changes, such as change of project ownership or construction of a new facility, may require a renewed FPIC process.
• Understanding needs to be built case by case: Case studies should be developed of how
FPIC has been sought, granted or withheld
in real-life situations. Sources should include anthropological research based on fieldwork and the analysis and publication of legal case history.
The paper is 15 pages long and contains 1 table, 2 boxes, a list of acronyms and abbreviations, and lists of legal documents and standards, papers and reports.