External care-taking

In many cases, government agencies, NGOs, or even individuals act as (self-appointed) caretakers for particular hunter-gatherer groups. Such external caretaking is often unknown to the communities themselves and can easily be based on perspectives that may not be mutually shared or may be poorly discussed.

2. Free, Prior and Informed Consent as a process

Freedom of choice

Among the fundamental ideas of FPIC is that the decision to give or withhold consent for a planned intervention is made free of coercion or manipulation (MacKay 2004). There is, however, a whole range of subtle and less subtle options for influencing the direction of the decision­making process. These options include the choice for the setting of the meeting, the selection of the time and place, and the selection of the people to be invited. They may also involve choosing the way in which information about the planned interventions is communicated, the language that is used, the distribution of smaller or bigger rewards for supportive individuals, and the outright use of (the threat of) violence against less supportive people. Hunter-gatherers are particularly vulnerable to all of these limitations to their freedom of choice because of their weak internal organisation.

Being prior informed

Two other fundamental pillars of FPIC are the requirement of full information provisioning on the proposed activities (Informed), and the need to do this before the actual commencement of the intervention (Prior) (MacKay 2004). Thus, people covered by the FPIC process should be made fully aware of the scope of the planned activities and the potential positive and negative impacts on their lives and environment, both in the short- and the long-term. Moreover, information must be presented in ways that are understandable to the affected population. However, this requirement is complicated by the wide knowledge gap between those who provide the information (e.g., usually urban, well-educated, and relatively wealthy individuals) and those who receive it (e.g., members of the remotest, and most economically and educationally disadvantaged rural communities). Again, this gap is most extreme in the case ofhunter- gatherers, who often do not even speak the national language. Moreover, the majority is illiterate, and even if they are not, they are unlikely to have a full understanding of the terms and conditions stipulated in the process. Even if serious efforts are undertaken to communicate in a mutually understandable language, it is unlikely that the terminology used will be sufficiently understood.

Proof and acceptance of decision

Closely related to the problem of meaningful communication is the question of how to come up with culturally appropriate forms of proof that a decision has been reached.

Consent versus consultation

To avoid some of the problems surrounding the requirement of obtaining ‘consent,' in practice, the ‘C' in FPIC often means ‘consultation' at best. Consultation, however, is something radically different than consent. It implies a de facto elimination of the final decision-making power of affected communities. Consultation with indigenous communities may only involve one or more meetings to discuss the nature and scope of the intervention, without working towards a moment of explicit decision­making by the community on whether or not they agree with the planned intervention. FPIC procedures also prescribe an undisputable decision­making process in the form of documents and proof of consent in the form of signatures or fingerprints. Consultative meetings do not usually have such documentation as proof, even though companies often tend to present reports about such meetings as evidence of having achieved consent with the local communities.

3. The nature of agreements

Duration of contracts

Opportunism is a term that is often used to describe hunter-gatherers' lifestyle. In this context, it refers to a strategy for coping with prevailing conditions by making the best possible use of available opportunities through diversification and flexibility (Kelly 1995). Such a lifestyle is radically different from living on stipulated limitations, as laid down in a contract with a potentially long duration.

Compensation

Notably, in the context of extractive industries, the negotiated agreements usually include monetary compensation for the losses that the intervention brings to livelihoods or culturally important sites. This compensation, particularly in the form of money, often has great appeal to people who otherwise have little access to cash and luxury items. But cash compensation is always surrounded by issues of distribution, management, and gender-inequality (e.g., Dyer 2016; MacDonald 2017; MacIntyre 2016, 10). Moreover, hunter-gatherers are ill-equipped to assess the fairness of the amounts offered. While monetary compensation has no long-term value, other forms of compensation such as infrastructure construction (e.g., roads, bridges, transport systems, educational or health care facilities) may be more meaningful. However, promises to provide such development are rarely fulfilled. For instance, decades of mining and logging have left the Agta of Dinapigue with damaged hunting and fishing grounds as well as polluted water sources. Meanwhile, the promised ‘social welfare benefits' have not been forthcoming (Minter et al. 2012). Most importantly, compensation packages rest on a ‘logic of equivalence' (i.e., the idea that they are commensurate with what is lost) (Li 2011, 19). However, for hunter-gatherers, who are highly economically, culturally, and spiritually resource-dependent, losing that resource base can essentially mean losing the foundation of their society (Buenafe-Ze, Minter, and Telan 2016).

Violation of contract conditions/complaint procedures

If one party does not fulfil its obligations, the disadvantaged party has the right to file a complaint with a third party, which could be a designated person or formal institution. In the context of hunter-gatherers, such a step would always imply moving far beyond the home territory and engaging in formal bureaucracies in ways in which hunter-gatherers are usually unfamiliar. The financial and time costs and the cultural barriers associated with such complaint procedures imply that FPIC procedural violations usually remain unreported.

Conclusion

On the one hand, it is obvious that FPIC has become an important instrument in the recognition and protection of indigenous rights, as part of efforts to improve legal certainty and social justice. The fact that FPIC features in all major declarations and policy statements concerning indigenous rights speaks for itself. UN bodies, private companies, international funding agencies, banks, international NGOs, and an increasing number of national governments have accepted FPIC as a basic principle in dealing with indigenous peoples. More specifically, FPIC sets a minimum standard for the direct involvement of relatively vulnerable groups in decision-making about interventions that will likely affect their territories, resources, or cultural knowledge.

On the other hand, it is clear that FPIC as a process for bringing about justice and legal certainty is still far from perfect. There are misuses and manipulations and the involvement ofself-appointed intermediate parties aiming to intervene in the process. There is also a mismatch between corporate ideas about damage compensation and the far-reaching everyday implications of afflicted damage for indigenous communities. FPIC alone cannot resolve all problems related to marginalisation, lack of participation, or lack of democratic inclusion. FPIC is just one element in the wider field of human rights recognition and democratic functioning of society at large (Fontana and Grugel 2016).

Even in positive cases where well-intending individuals, companies, and organisations are truly working in the spirit of what FPIC is aiming to achieve, the process is filled with complexities. Among these is the need to view FPIC as a continuous process that does not end once consent has been granted, but instead entails monitoring of both parties' fulfilments of rights and obligations. Another major challenge pertains to situations where indigenous peoples claim restoration or compensation for serious injustice and harm brought about as a consequence of interventions that were carried out without FPIC. This challenge may also have implications for protected areas or World Heritage Sites. Where these sites were established without recognition of indigenous peoples' rights, there may be demands for restorative justice. In many cases, however, there will be much public resistance from people who have migrated into such areas at a later stage or from governmental agencies against such an ‘undoing of history' as a result of newly established rights. Here, competing principles of justice may be difficult to synchronise.

We have highlighted the specific challenges surrounding the meaningful implementation of FPIC regarding hunter-gatherers. Often lacking hierarchical political leadership structures, a foreign representation structure is imposed on them to facilitate the FPIC process. This imposition is neither effective nor ethically just. Hunter­gatherers' mobility and resource tenure systems pose additional challenges concerning the scope and practical organisation of FPIC procedures. Finally, belonging to any country's most marginalised and disempowered populations, hunter-gatherers are particularly ill- equipped to negotiate with powerful actors on equal footing. This makes the FPIC process highly prone to manipulation and decision-making in favour of the proponents. It is even questionable whether or not the FPIC procedures are applicable in the context of hunter-gatherer societies. However, since an alternative for hunter-gatherer involvement in the decision-making processes has not yet been found, the best way forward currently seems to involve a sincere willingness to face and overcome the challenges outlined above.

To deal with these challenges, a lot of effort, often with the help of committed NGOs and scientists, is directed at promoting the appropriate and meaningful application of FPIC by learning from previous mistakes, looking for best practices, and developing training manuals and practical guidelines. In one review, the Forest Peoples Programme notes that some improvements can be detected in the implementation of FPIC (Forest Peoples Programme and SawitWatch 2012). First, there is an increased awareness of human rights concerns in the operations and obligations of national governments, the private sector, and internationally operating NGOs. Secondly, a growing corporate social responsibility is noticeable in many companies, which increasingly prefer to engage in real dialogue with local communities to avoid future complaints and legal procedures. This is partly the result of public blaming and shaming through publications of investigative journalism and critical researchers. Hopefully, these concerted efforts will contribute to a situation in which FPIC will indeed create legal certainty for hunter-gatherers and other indigenous peoples.

Notes

Examples from the UN system include the International Covenant on Civil and Political Rights (1966), the ILO Convention No. 169 on Indigenous and Tribal Peoples (1989), the Akwe: Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments (2004), the Nagoya Protocol on Access and Benefit Sharing (2010), the Expert Mechanism on the Rights of Indigenous Peoples (2011), and the UN Guiding Principles on Business and Human Rights (2011).

2 PEFC (Programme for the Endorsement of Forest Certification) is an international, non-profit, non-governmental organisation dedicated to promoting Sustainable Forest Management through independent third-party certification. While it initially was the European timber trade certification system, it has become a global umbrella organisation that endorses national forest certification systems.

3 Regarding timber importation, most European countries most notably require adherence to these standards: ILO Convention No. 169, the UN Declaration on the Rights of Indigenous Peoples, and the Convention on Biological Diversity.