FPIC and indigenous peoples

Free, Prior and Informed Consent (FPIC) is the right of indigenous peoples and other local communities to give or withhold their consent to any project affecting their lands, livelihoods, and environment.

Before FPIC became a key element in the discussion about the rights of indigenous peoples, it had already been used in international conventions regulating hazardous chemicals and waste, and medical procedures. When regulating hazardous chemicals and waste, FPIC was constructed as a relationship between nation-states. They were supposed to inform one another about imports and exports of these substances, to make decisions about their movement more transparent. In the medical sector, informed consent is an element in the relationship between two individuals: the doctor and the patient. The aim is to inform the patient about potential harmful consequences of a particular treatment. Needless to say, these forms of informed consent have to be free from coercion (Firestone 2003).

In the context of indigenous peoples, FPIC is a relationship between an indigenous community and other parties (e.g., individuals, companies, researchers, governments) who plan to engage in activities in indigenous peoples' territories or to make use of indigenous knowledge, culture, or heritage. FPIC is just one particular right and should always be considered in the contexts of other rights, such as the right to self-determination, the right to culture, and the right to religion.

The Convention on Biological Diversity (1992) was the first international document in which FPIC was included. This was achieved after strong lobbying activities in the 1980s when numerous dramatic cases of injustice against indigenous peoples were widely publicised. These included illegitimate encroachment in indigenous territories by logging and mining companies. It also included piracy of indigenous knowledge by pharmaceutical or plant-breeding companies. In both cases, companies acted without appropriate agreements with the land­owning communities or with the holders of such knowledge. These events led to a strong movement against the commodification and ownership (including patents) of life forms (Mead and Ratuva 2007).

FPIC is a key element that appears throughout the most important document for indigenous peoples' rights, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Over many years, FPIC has also become an important component in conventions, declarations, policy statements, and operational guidelines of the multilateral UN organisations (i.e., WIPO, UNDP, UNEP, UNESCO, ILO, and FAO)¹ and major donor agencies (e.g., the World Bank and the Asian Development Bank). The same holds for nature conservation organisations, like the World Wildlife Fund (WWF), the International Union for the Conservation of Nature and Natural Resources (IUCN), The Nature Conservancy (TNC), and Conservation International (CI). All of them have issued policy statements to ensure the inclusion of local indigenous communities in the decision-making process, both during planning stages and before final decisions are made.

Trade organisations and industries have also included FPIC in their policy statements and their sets of principles and criteria. This includes organisations promoting sustainable timber trade (Forest Stewardship Council [FSC] and the Programme for the Endorsement of Forest Certification [PEFC]) and palm oil (Roundtable on Sustainable Palm Oil [RSPO]).

In some cases, national laws and regulations recognising indigenous peoples' rights may be absent or extremely weak, while companies, international NGOs, or funding agencies may be willing or even forced to stick to their guidelines and policies. Companies, for instance, may only maintain access to targeted markets if they fulfil the requirements for certified sustainability. NGOs run the risk of complaints among their constituencies if they do not uphold collective human rights standards. Sometimes, these international sets of human rights standards go beyond national legislation, in which case they may stimulate national governments to pay more serious attention to the recognition of such rights.

The integration of indigenous peoples' rights into the policies of the sustainable timber trade is an interesting, sector-specific example of how indigenous rights can trickle down. Since the early 1990s, the Forest Stewardship Council (FSC) recognised indigenous peoples' rights in its standards. In fact, the FSC was founded by environmental organisations as a result of the public outcry against the injustice done to the indigenous Penan, who confronted loggers in Sarawak (Malaysia). In a later stage, the other certification system, PEFC,² was forced to recognise these rights to be eligible for sustainable timber import into European countries. Most of these countries require adherence to all major declarations and conventions³ in this field. These international certification systems also influenced timber-exporting countries, which could no longer refrain from accepting indigenous rights, even if their national governments were initially reluctant to do so.

Malaysia is an interesting case in this respect. Through pressure from FSC and PFEC, as well as the Dutch Timber Procurement Policy (TPAS), the Malaysian Timber Certification Scheme (MTCS) has gradually incorporated elements of indigenous rights in its standards, including FPIC (Royal Haskoning DHV 2016; Malaysian Timber Certification Council 2012). This is remarkable since national legislation within Malaysia is still quite ambivalent on this issue. For some time, it has been questioned whether these incorporations were illegal under Malaysian law. However, doing more than what is legally required domestically is, of course, different from acting illegally.

While FPIC has gained considerable political acceptance, there have also been initiatives by both governments and private companies to weaken FPIC’s possible impacts. Some governments and business organisations are not in favour of the need to obtain ‘consent,’ since it risks indigenous communities refusing the planned activities. There have thus been attempts to replace ‘consent’ with other concepts, like ‘consultation,’ ‘constructive dialogue,’ ‘respect,’ or ‘serious engagement.’ But these attempts have not been successful since the international standards are quite clear on the proper meaning of ‘consent’ (MacInnes et al. 2017).

Even though the terminology used by governments, private companies, and NGOs may look similar, there are big differences in how they approach FPIC. Moreover, there is usually a gap between the language and the practice of FPIC in the field. Many organisations struggle with implementing FPIC. Practical and operational guidelines are often lacking, and even crucial questions in this process are not easily answered. These questions include (Berlin and Berlin 2003): Why is FPIC needed in a particular case? Who is to give (or withhold) consent? How should FPIC be obtained? What is the evidence that consent has (not) been given? Who decides whether it is given? Some of these issues have to do with the social complexities in the field, examples of which we will discuss below.

Though many international declarations are particularly focused on large-scale interventions (e.g., logging, mining, infrastructural development, or conservation), FPIC has also become a requirement for researchers. It is often in the research institution's or professional organisation's ethical code of conduct. But the local community (e.g., South African San Institute 2017) and (self-appointed) caretaker institutions are also increasingly independently demanding FPIC.

Comparatively speaking, researchers have been more open than governments or companies about the challenges they have encountered in meeting FPIC requirements or acquiring FPIC permission from stakeholders (see Berlin and Berlin 2003). These challenges include deciphering how to create consensual and benefit-sharing processes that are culturally appropriate, satisfactory to the research bureaucracy, and feasible given the available time and resources. Conflicting ethical codes pose a particular challenge. For instance, scientific publications now require data storage, data sharing, and open access to information; requirements meant to enhance scientific transparency and replicability. However, the full disclosure of such information is often unacceptable to the indigenous communities who have provided it (e.g., as occurred in projects related to ethnobotanical research). For example, researchers obtained FPIC on the condition that they prevent pharmaceutical or plant­breeding companies from appropriating the communities' knowledge (i.e., ‘bio-piracy'). But such restrictions (as agreed upon by communities and researchers) may be in tension with the ethical policies of research institutions or publishers (Brown 2004).

Proportionality is a further issue. As there is usually no difference between FPIC requirements for research activities and large-scale development interventions, researchers sometimes feel that the requirements are not proportional with the aim and the scope of their activities, compared with those of mining or logging operations. This is especially relevant when communities (or agencies speaking on their behalf) have previously interacted with extractive companies, which greatly influences local expectations of benefit sharing.