1. Module Free, Prior, Informed Consent Jayantha Perera, PhD 1

2. 2 Basic Argument The value of consultation in development planning depends on how well it identifies and recognizes rights and needs of affected indigenous peoples.

3. 3 Identification of Rights Through meaningful consultation Recognition of Rights Only if consent is obtained Only if share intervention benefits

4. 4 Free, Prior and Informed Consent A form of governanceA form of governance General UN Standard; regional standardGeneral UN Standard; regional standard A vehicle for information disclosureA vehicle for information disclosure A process to obtain consentA process to obtain consent Resist or veto an development intervention?Resist or veto an development intervention? A process to ensure communities benefitA process to ensure communities benefit

5. 5 Indigenous Peoples and FPIC Consultation, participation, co-management Inclusion and sharing, not exclusion and dominationInclusion and sharing, not exclusion and domination Participatory model in place of top-down modelParticipatory model in place of top-down model Focusing on rights and needs of the vulnerableFocusing on rights and needs of the vulnerable Room for deciding approaches to problem solvingRoom for deciding approaches to problem solving Dialogue through representativesDialogue through representatives Consent seekingConsent seeking

6. 6 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007 UNDRIP preamble emphasizes IP control over development will: strengthens institutions, culture and traditionsstrengthens institutions, culture and traditions emphasizes IP aspirations and needemphasizes IP aspirations and need Recognition of IP rights: enhances relations between the state and IPenhances relations between the state and IP Emphasizes justice, democracy, equalityEmphasizes justice, democracy, equality Ensure that State rights including eminent domain.State rights including eminent domain. State uses its rights in consultation with IPState uses its rights in consultation with IP Benefit sharing opportunities for IPBenefit sharing opportunities for IP

7. 7 Key Characteristics of FPIC in UNDRIP UNDRIP balances IP rights and state rights,UNDRIP balances IP rights and state rights, Congruence - national & IP interestsCongruence - national & IP interests State accommodation of indigenous rightsState accommodation of indigenous rights Emphasis on partnership instead state sovereigntyEmphasis on partnership instead state sovereignty

8. 8 Self-determination and FPIC Under UNDRIP Restates right to self-determinationRestates right to self-determination Contextualizes the right requiring FPIC for:Contextualizes the right requiring FPIC for: physical relocation (Article 10)physical relocation (Article 10) use of cultural, intellectual, spiritual property (Art 11)use of cultural, intellectual, spiritual property (Art 11) adoption of legislation that impact them (Art 19)adoption of legislation that impact them (Art 19) restitution of land taken (Article 28)restitution of land taken (Article 28) storage of hazardous materials (Article 29)storage of hazardous materials (Article 29) approval of a project impacting on them (Article 32)approval of a project impacting on them (Article 32)

9. 9 Legal Status of UNDRIP Non-binding.Non-binding. International (UN) standardInternational (UN) standard By ratification adopts UNDRIP as domestic lawsBy ratification adopts UNDRIP as domestic laws

10. 10 Critique of FPIC Pro-forma exercise to defend pre-determined decisionsPro-forma exercise to defend pre-determined decisions No opportunity to influence decision makingNo opportunity to influence decision making Why?Why? Inadequate access to informationInadequate access to information Pre-determined outcomes: controlling issue definitionPre-determined outcomes: controlling issue definition Privileging scientific/technical discoursePrivileging scientific/technical discourse Use consultative forms of communication only one wayUse consultative forms of communication only one way On paper? India - FRA and Philippines - IPRAOn paper? India - FRA and Philippines - IPRA

11. 11 UN Machinery on IP Rights Expert Mechanism on rights of indigenous peoplesExpert Mechanism on rights of indigenous peoples Special rapporteur on human rights & fund. FreedomsSpecial rapporteur on human rights & fund. Freedoms Permanent forum on indigenous issuesPermanent forum on indigenous issues UN Voluntary Fund for Indigenous PeoplesUN Voluntary Fund for Indigenous Peoples Multilateral Development Agencies on IP Rights World Bank – IP Policy (2005)World Bank – IP Policy (2005) ADB – Safeguards Policy Statement – IP Policy (2009)ADB – Safeguards Policy Statement – IP Policy (2009) IFC – Performance Standards on IP (2006)IFC – Performance Standards on IP (2006)

12. 12 FPIC Framework FPIC - legal concept; no specific methodology/framework Issues to address in a framework IP heterogeneity results in 'consent' taking many meaningsIP heterogeneity results in 'consent' taking many meanings 'legitimacy' of FPIC in different power structures'legitimacy' of FPIC in different power structures Horizontal alliances rather than hierarchical leadershipHorizontal alliances rather than hierarchical leadership Reduced value of community leaders as representatives;Reduced value of community leaders as representatives; uncertainty regarding 'consensus‘uncertainty regarding 'consensus‘ Inherent characteristics of ancestral domainInherent characteristics of ancestral domain non-commoditynon-commodity customary laws and culture recognize?customary laws and culture recognize?

13. 13 Conclusion Indigenous peoples may get moral victory from international law, but the real power remains vested in the hands of sovereign states who can and do ignore international norms (Kymlicka 1999).