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65 Swiderska with Milligan, Kohli, Shrumm, Jonas, Hiemstra and Oliva
of false expectations. Where patron-client
relations exist, it may be best not to compensate communities during FPIC to avoid
consent being granted purely for immediate
and insignificant benefits. And in other
cases, FPIC could be granted not because
the proposal is understood, but simply
because the people making it are trusted
(Lewis and Nkuintchua). Certain protocols
and ways of behaving can help minimise the
misunderstanding and friction associated
with cross-cultural communication between
indigenous and non-indigenous people
(Ritter). As well as facilitation by a local
organisation trusted by the community, the
support of an anthropologist may be
required.
Allowing enough time and money
A number of articles stress the need for
unhurried processes and flexible design.
Putting a time limit on FPIC may be desirable for companies seeking consent but risks
rendering FPIC meaningless by preventing
full understanding and deliberation, and
bottom-up design based on customary institutions. Even where communities are
participating in an NGO project which aims
to support their livelihoods and rights, the
process can take nearly three months
(Pimbert). When new and complex issues
are introduced where communities may be
divided, more time may be required to
develop understanding and consensus.
These processes of deliberation are vital for
communities to decide their best interests.
What may appear an attractive proposition
to youth, for example, may not be best for
safeguarding community subsistence needs
or cultural heritage (Ramdas).
As a number of articles point out,
getting dispersed communities together is
often costly. Even if communities themselves are not paid, the cost of facilitation
will also need to be covered. Added to this,
is the cost of legal support and representation for communities, particularly if
benefit-sharing agreements are negotiated
with companies. In Australia’s native title
process (Ritter), the negotiation of benefitsharing agreements for mining took a
minimum of six months, often longer, and
involved a number of experts. Given the
lack of government support, companies
often provided funding for FPIC, but this
could lead to co-option of the process.
Lessons for supporting community
protocols
A participatory process is an essential core
element for developing community protocols which represent the negotiated
majority view or common interest of the
community as a whole and which are really
owned by the community. While the main
purpose of a protocol may be to communicate customary rules and rights, a
participatory process is vital to build the
capacity and confidence of communities to
negotiate with more powerful actors so that
these rules and rights are recognised. In
some cases, community protocols have led
to new inter-community representation
structures which can facilitate FPIC (e.g.
Sibuye et al.; Argumedo). They can also
enable potential problems with a project or
partnership to be identified in advance
(Lewis and Nkuintchua), and help to build
long-term partnerships based on trust
(Oliva et al.).
Maintaining a flexible focus
Whatever the initial purpose for developing
a community protocol, it is important to
maintain flexibility in terms of objectives,
focus and process design. For example, a
community protocol for access and benefit-sharing typically sets out the
community’s customary values and rights
relating to traditional knowledge and
biodiversity and requirements for PIC and
equitable benefit-sharing. However, ABS
issues may not be the only or most pressing
priority for communities. Discussions to
develop a protocol will inevitably bring up
other issues that communities need to
address, such as securing their own access
to biodiversity resources and defending