l Community protocols and free, prior informed consent – overview and lessons learnt 29
Free, prior informed consent (FPIC)
FPIC has become a fundamental part of
indigenous peoples’ efforts and demands to
assert their right to self-determination over
the last two to three decades – in response
to growing threats to their land, territories
and waters, and violation of their customary rights, by large-scale development
projects, mining and forestry.
FPIC enables communities to decide on
proposed developments or projects on a
case-by-case basis, based on full prior information and discussions and deliberations
at community level. Crucially, FPIC allows
communities to deny consent or veto
proposals – without this, communities have
far more limited influence over decisionmaking (Ritter).
Community-level participatory
processes
Participatory processes form a critical part
of these rights-based tools, for analysis,
deliberation and coming to agreement.
They help ensure that:
• resource development decisions are
considered thoroughly and community
resources are not sold off ‘on the cheap’,
without considering potential impacts on
the needs of all community members, and
on cultural values and heritage (Ramdas);
• benefits negotiated reflect the needs of all
community members and are fairly shared
to maximise poverty reduction impacts,
spread incentives for conservation and
avoid conflicts (Argumedo), avoiding ‘elite
capture’;
• women, who are often most dependent
on biocultural resources and play a key role
in the maintenance of traditional crops,
wild foods and medicinal plants, are
included. Their role is increasing with male
out-migration to urban areas and the feminisation of agriculture, making it all the
more important to ensure women’s participation.
Institutional arrangements for FPIC
and community protocols also need to
facilitate participation. Top-down
approaches based on western bureaucratic
norms are likely to undermine customary
institutions and community governance of
biocultural heritage, and limit community
participation (Buxton; Ritter).
On the other hand, where communities
play an active role in designing and facilitating community protocol and FPIC
processes, these tools can be very empowering, building capacity, organisation and
confidence (Pimbert; Lewis and
Nkuintchua; Guri et al.; Argumedo; Sibuye
et al.; John et al.).
Recent developments in international
law that support CPs and FPIC
CPs and FPIC have been given official
support through two recent pieces of international law:
• The UN Declaration on the Rights of
Indigenous Peoples (UNDRIPs, 2007),
requires the free, prior informed consent of
indigenous peoples for any proposed development which affects them (Box 3).
• The Nagoya Protocol on Access to
Genetic Resources and Benefit-Sharing
(2010) requires the prior informed consent
(PIC) of indigenous and local communities
for access to traditional knowledge and
genetic resources held by them; and
support for the development of community
Box 3: The UN Declaration on the Rights
of Indigenous Peoples (UNDRIPs)
Although UNDRIPs is a non-binding or ‘soft’ law, it
was adopted by 144 states and is widely supported
by indigenous peoples. The Declaration requires that:
States shall consult and cooperate in good faith with
the indigenous peoples concerned through their own
representative institutions in order to obtain their
free and informed consent prior to the approval of
any project affecting their lands or territories and
other resources, particularly in connection with the
development, utilisation or exploitation of mineral,
water or other resources (Article 32).
The requirement for PIC to be ‘free’ responds to
experiences where indigenous peoples have been
coerced into giving their consent, rather than being
allowed to give it freely or deny consent. For
indigenous peoples therefore, a PIC process would
always need to be FPIC to retain its integrity.