Introduction
GA. Persoon and T. Minter
Legal certainty (or legal security) is a principle that generates the legal order's systematisation and stability and guarantees human rights (i.e., human and social security) through lawmaking and justice.
It is supposed to guarantee the effectiveness of the entire legal system's normative function, both through sound legal provisions and real and effective implementation of such provisions (Ivaylova 2017; Otto 2000b). The most vulnerable individuals and groups tend to enjoy the least legal certainty. Among these are indigenous peoples, who constitute a highly diverse group of approximately 400 million people worldwide. Despite their many differences, indigenous peoples share a history of oppression and domination by colonial and post-colonial governments as well as on-going socio-economic marginalisation, discrimination, and legal uncertainty (Lenzerini 2008). In their confrontation with more powerful players (usually governments and extractive industries) in the search for arable land, minerals, or other natural resources, indigenous peoples are often further marginalised precisely because of their lack of legal certainty.Free, Prior and Informed Consent (FPIC) is presently the most powerful instrument in creating a certain degree of legal certainty for indigenous peoples. FPIC is an interesting legal phenomenon because it functions as a cross-cutting legal instrument that combines aspects of customary, national, and international rights. It is a requirement in conventions, declarations, operational guidelines, policy statements, and trade-related procedures, for achieving higher levels of sustainability, social justice, and legal certainty.
FPIC also relates to ideas and ideals of reconciliation, and redress of historical events or conditions, which is a highly complicated issue within the field of social justice (see Lenzerini 2008).
In the distant or more recent past, indigenous peoples have lost territories and resources. Other parties have used parts of their intangible culture and knowledge without their consent. In fact, the emergence of indigenous rights in the international context stems from a large number of blatant violations of indigenous rights, which attracted the media's attention. Globally, there are many known cases of eviction from home territories, incidents of bio-piracy, appropriation of cultural heritage, and appropriation of indigenous medical knowledge (for examples, see the IWGIA's annual The Indigenous World). Indigenous peoples and their advocates aim to garner reparations for these historical injustices with the newly available declarations and guidelines, including FPIC articles. They aim to reclaim lost territories and resources or reclaim control of how external actors use their indigenous knowledge and other expressions of intangible culture.This contribution will first discuss the general implications of major legal texts including the FPIC. Next, we will focus on the implementation of FPIC in relation to one particular category of indigenous peoples, namely hunter-gatherer societies in Southeast Asia. These huntergatherers are among the most vulnerable groups of indigenous peoples because of a number of socio-cultural characteristics. This makes the implementation of FPIC even more complex and prone to manipulation and misuse, necessitating the highest levels of precaution and sincerity. Despite its wide acceptance, FPIC does not always yield the intended result. In many cases, its application is far from perfect. It often has unintended and negative impacts.
This leads us to look for an answer to the following question: As a legal instrument, does FPIC achieve its designed aim concerning huntergatherers?
Our discussion is based on a literature review and on our own experiences in different roles with FPIC. We have both undergone FPIC processes while conducting field research (with local and international MA and PhD students) among hunter-gatherers in Indonesia and the Philippines. As researchers, we have also been able to study the ways in which other parties obtain FPIC and provide evidence that they have actually obtained it. Examples include the procurement of sustainable timber and in mining and logging applications. We have also experienced the implementation of FPIC as consultants for donor and nature conservation agencies.