Culturally appropriate FPIC processes
Consensus-building
For indigenous peoples, FPIC is more than just consultation, consent or non-consent. Rather it
entails an internal process of consensus-building among the people. Consensus is not simply a
majority vote or a decision made by the leaders in the community. Rather it is a process whereby the
different parts of a community can be included in decision-making in accordance with their customary
laws and practices or procedures which they have internally agreed. Decisions are frequently taken
in community general assemblies, where everyone participates.
Arriving at a consensus is an activity which is internal to the communities. It requires ensuring
that all the necessary information is available, in a language the people understand, and that all
appropriate means have been used to ensure that the people understand what is being planned or
proposed for their territories so that they can assess the impact on their rights. According to those
interviewed, customary practices of debate and deliberation – taking into consideration different
points of view – lead to a united and collective decision and ensure that the decision reached is the
correct one for the community, and is firm and binding on all parties. Dissenting opinions are dealt
with in the process of arriving at a consensus such that individuals cannot veto the decision of the
whole community. The internal consensus making component of FPIC processes therefore has to
be exhaustive, taking the time necessary to reach consensus in a culturally appropriate manner,
and all-inclusive to avoid the potential for the proposed activity to create divisions in the community.
Community-defined process
“Formal law should recognize
customary law to be operative
in its own jurisdiction. But
what is happening is that
formal law wants to regulate
customary law. This is not
correct and formal law
should recognize, respect and
empower customary law.”
Quote from Joji Cariño,
Ibaloi, Philippines
Indigenous representatives insisted that the FPIC process should be
community-defined, and not prescribed by guidelines issued by the
State or company. FPIC implementation must be sought in a manner
that respects customary laws and norms. There is no template or
one-size-fits-all model for FPIC that applies to all communities.
Community defined FPIC processes will generally involve adherence
with customary laws and traditional modes of decision-making. It is
the community’s choice if they wish to invoke traditional decisionmaking processes, hybrid models of decision-making which merge
customary laws and practices with new modes of decision-making,
or to devise entirely new processes to cater to contemporary realities
which they face. They should not be forced by external actors either
to use traditional decision-making processes or to abandon these
processes. Where communities document their own FPIC protocols
or policies these should be respected by all third parties.
Recognizing centres of authority
The interviews revealed that it is common for different governing structures to exist in indigenous
communities, each with differing domains of authority. In some instances there exist governance
structures that are formally recognized by the State with which it engages and which are involved
in negotiating with external entities. There are also customary structures and traditional authorities.
These are often concerned with internal issues, social protection, cultural and environmental
safeguards. They may also have authority over decisions pertaining to lands and resources or those
with implications for community development, but are often inappropriately ignored by States in the
context of decisions pertaining to these issues. In some communities, men may be responsible for
certain laws and customs and women responsible for other laws and customs. Each would have
their own authority and responsibility, so each in turn would need to discuss and engage in decision
making through their own processes.
In cases where multiple centres of authority exist, indigenous representatives interviewed explained
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Making Free, Prior and Informed Consent a Reality