Free, Prior and informed Consent for Land rights, Environmental protection and Human Rights Defense

Free, prior and informed consent FPIC can be understood as one of the main achievements of indigenous movements, overcoming the old mentality that considered indigenous peoples as unable to decide their own future. It’s common in international law. The standard is a critical component of the United Nations Declaration of the Rights of Indigenous Peoples. It has been invoked in key jurisprudence around the world. Various iterations of the concept are found in the Basel and Rotterdam Conventions, Convention 169 of the ILO, and it has been agreed to by parties to the Convention on Biological Diversity with respect to traditional knowledge. It has been cited by the World Commission on Dams and the World Bank’s Extractive Industries Review and is part of the International Finance Corporation’s performance standards.

It is well recognized that FPIC is a significant improvement over the concept of prior consultation, which in practice means that an outside entity such as a government, corporation, or multilateral could hold a workshop in an indigenous territory before the bulldozers roll in.

Prior consultation can be seen as a sort of gate that outsiders need to pass through in order to gain access to territory and undermine other human rights–rights to home, livelihood, environment, and health–and consent is its latch.

It’s a gate with a latch, but it’s still a gate that can be and continues to be opened all the time, as evidenced by the rapid expansion of extractive industry and large scale infrastructure on indigenous peoples territories worldwide.

In fact, FPIC is really a gate with a latch and three faulty hinges–the concepts of free, prior, and informed–that are ill-defined and difficult to apply.

How do we determine that decisions about territory were made free of pressure? How do we define prior? Before the oil company enters the territory before the government leases the concession before the hydrocarbon law is developed?

And what constitutes informed? Who generates and provides the information? What happens when people really don’t have access to the information needed to make decisions about their fundamental rights?

It is each of these hinges that oil and mining companies are all actively exploiting. There’s a good reason Newmont mining and the World Bank create working groups to develop FPIC protocols. Everyone wants to know how to get through the gate and carry on business as usual.

When communities in less-industrialized nations are face-to-face with new or existing development projects, it is rare that they have either the technical tools or the information to effectively address potential impacts on human health and the environment. Frequently governmental agencies are unable or unwilling to provide the needed expertise to address their concerns. Ngetha Media Association for Peace Would like to respond to this need by providing these communities with critical technical expertise and capacity building working with a non-governmental organization (NGO) partners, affected communities, government, media, and religious leaders as well as cultural institutions

The International Labour Organization Convention 169 on Indigenous and Tribal Peoples and the United Nations Declaration on the Rights of Indigenous Peoples consider Indigenous peoples as active participants who make and build their own history. The right to Free Prior and Informed consent underline this. It set a benchmark in the history of Indigenous peoples versus governments and businesses.

Unfortunately, it is often disregarded by both and it remains a big challenge on the ground.

The concept of free prior and informed consent appears at different times in some cases as consultations with communities and in other cases as the need to consult Indigenous peoples for possible displacements and transfer to a new location due to the construction of infrastructure projects such as hydropower plants, roads, etc. without giving them the time to organize themselves and take a collective and informed decision.

The real meaning of FPIC standards as outlined in Article 42 of the United Nations Declaration on Indigenous peoples which states that indigenous peoples have the right “to give or withhold their free, prior and informed consent to actions that affect their lands, territories and natural resources” is too often distorted especially related to the “ Consent” part of it which is translated into “Consultation” by the World Bank and governments while its real meaning gives indigenous people the right to say YES or NO if the project has a negative impact on their territory and resources.

It is a critical time for indigenous peoples as they face increasing pressure on their lands and resources.

Ngetha Media Association for Peace will continue to work with government, communities and other stakeholders to support Indigenous peoples in their quest for the respect of their rights as enshrined in the UN Declaration on the rights of indigenous peoples.

More than ever, this is the time where it is important to demand respect for indigenous peoples’ rights, the rule of law and the right to self-determination, a cornerstone of the UN Declaration, and when asked to be ready to facilitate indigenous communities’ understanding of each of the terms in FPIC.

They shall know that they are FREE from any intimidation, coercion or pressure from governments or companies which cannot decide on projects on indigenous land PRIOR being given enough time to consider the information and make their own decision. They shall be INFORMED on all the aspects of the project, they must be given all the information in a form that they can understand, and have access to independent experts on law and technical issues if requested to make an informed decision. If the project has a relevant impact on their land or resources they should be able to Give their CONSENT or NOT.

Enough time shall be granted for this process to take place.

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