Free, prior and informed consent

Although there are numerous definitions and debates about FPIC,[3] the United Nations Food and Agricultural Organization has defined the concept of FPIC as the following:[4]

• Free simply means that there is no manipulation or coercion of the indigenous people and that the process is self-directed by those affected by the project.
• Prior implies that consent is sought sufficiently in advance of any activities being either commenced or authorised, and time for the consultation process to occur must be guaranteed by the relative agents.
• Informed suggests that the relevant indigenous people receive satisfactory information on the key points of the project, such as the nature, size, pace, reversibility, and scope of the project as well as the reasons for it and its duration. That is the most difficult term of the four, as different groups may find certain information more relevant. The indigenous people should also have access to the primary reports on the economic, environmental, and cultural impacts that the project will have. The language that is used must be understood by the Indigenous Peoples.
• Consent is not defined but is granted or withheld after a process that involves consultation and participation. However, mere consultation by itself is not a substitute for actual consent.[5] The UN Working Group on Business and Human Rights notes that Indigenous Peoples "should determine autonomously how they define and establish consent."[6]

The UNPFII requires indigenous people should be consulted in a way that is appropriate for their customs. That means that not every member will have to agree, which has been criticised by some women's rights groups. The indigenous people determine who is to be consulted and must effectively communicate that with the government and developers. It is the duty of states to make sure that FPIC has been carried out. Otherwise, it is their issue to redress, not that of the company or the people wishing to carry out the project.[7] The International Labour Organization requires a consultation to take place in a climate of mutual trust, and circumstances are considered appropriate if they create favourable conditions for reaching agreement and consent. In a pilot study by the UN-Reducing Emissions from Deforestation and forest Degradation UN-REDD of FPIC application in Vietnam the following steps were required: (1) preparation, (2) consultation with local officials, (3) recruitment of local facilitators, (4) training of the local facilitators, (5) awareness raising, (6) village meeting, (7) recording the decision, (8) reporting to UN-REDD Vietnam, and (9) verification and evaluation. The majority of issues with the policy was the recruitment of the local facilitators, who were able to discuss the process in a language, but Indigenous Peoples understood there was mistrust towards them and a fear that they had been bribed.[8]

The International Labour Organization (ILO)[14] has been working with indigenous people since the 1920s and currently has 187 member states, including New Zealand. ILO Convention 169 (the Convention)[15] on indigenous and tribal peoples is an international treaty adopted by the ILO in 1989. The Convention aims to overcome discriminatory practices affecting indigenous people and enable them in the decision-making process. The fundamental foundations of the Convention are participation and consultation. The requirement for consultation falls upon the government of the state and not on private persons or companies and may be delegated, but the ultimate responsibility rests on the government.[16] The need for consultation of IPs is written throughout the Convention a number of times and is referred to in Articles 6, 7, 16 and 22. Article 6(1) states that governments should:

“Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly" '

Article 6 (2) states that the consultation will be carried out in good faith and in a form that is appropriate to the circumstances. The aim of the consultation process is to achieve an agreement or consent to the purposed development.[17] The Convention does not allow indigenous people to veto any development since the condition is for consultation, not consent. The supervisor bodies of the ILO have stated that the consultation process cannot be mere information-sharing and that there must be a chance for the indigenous people to influence the decision-making process. If consent is not achieved, the nation-state must still respect other areas of the convention that include the Indigenous Peoples' right to their lands. For example, Article 16 (2) requires that free informed consent must be given if is the relocation of people.[18] The treaty is legally binding on all states that ratify it, which may need to adjust domestic legislation. In nations such as New Zealand, domestic legislation such as the Resource Management Act 1991 refers to the need to consider in developments Maori relationship with land and water sites.[19] The spiritual and practical connection that Maori have to the land has been considered in a number cases before the court including the Supreme Court case Paki v Attorney General.[20]

The United Nations describes FPIC both directly and indirectly in numerous conventions and treaties. One of the most direct cases is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Article 19 states:

"States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.[21] ”

Article 32 requires consultation to be carried out with Indigenous Peoples before states can undertake projects that will affect their rights to land, territory and resources [22] Those articles require consultation, but Article 10 requires also informed consent before the relocation of Indigenous Peoples from their land.[23] That allows indigenous people the right to decide where they live and gives them the power stop any development that they oppose.

The Universal Declaration of Human Rights (UDHR) is the most universally accepted standard of human rights. It does not directly mention FPIC but it does express the importance of self- determination of all peoples in Article 1. Also, Article 7 declares that all are equal before the law, which means that one person has no more right to another in a nation. The principle is further endorsed by Article 17, which states that every person has the right to own property and shall not be arbitrary deprived of property.[24] The right for self-determination is further protected in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 1 of both documents and includes economic self-determination, which for many IP is the control of their natural resources.

The ICCPR in Article 27 states that minorities shall not be denied access to their culture. In the Human Rights Committee (HRC) in General Comment 23, that was found to include the right of indigenous people to their land and resources. The HRC has interpreted that to mean that states have a positive duty to engage with IP prior to any development or granting of resource concession in IP lands.[25]

The Committee on Economic, Social and Cultural Rights (CESCR), the supervisory body of the ICESCR, has even stated in General Coomment No. 23 that if indigenous people's land has been taken without informed prior consent, they have the right to restitution or the return of their land or resources. That comes from its interpretation of Article 15 of the ICESCR . Article 15 protects indigenous people's right to participate in their cultural life. The comment by the CESCR is important as it goes beyond mere consultation. The need for FPIC has also been called upon by the Committee on the Elimination of Racial Discrimination (CERD) which requires that no state shall make a decision concerning the rights of IP without their consent. The Convention on the Elimination of All Forms of Racial Discrimination (CERD) encourages indigenous people's participation in decision making. However, they are not legally-binding decisions but only recommendations [26]

The World Bank was one of the first multilateral financial institutions to create guidelines to protect the rights of Indigenous Peoples in the 1980s, when it recognized that development negatively impacted their lives and cultures. Its first policy was in 1987 and was designed by staff without consultation of Indigenous People and was a statement on the need to protect Indigenous Peoples. In 1991, its Operational Directive 4.20 document acknowledged the need for participation of indigenous people in the consultation process.

The subsequent World Bank Policy on Indigenous Peoples was released in 2005, OP 4.10 focused on the reduction of poverty. In doing so, the bank identified the intrinsic link that Indigenous People have with the land and the need for a consultation process which fully respects the human rights, human dignity, economics and culture of the people involved. It stated that it will not lend money to a state or company unless there has been free prior informed consultation with the local indigenous population and that there is broad community support for the development.[27]

Critics have questioned for the term "consultation" to be used as opposed to consent and state that to mean that IP cannot decline a project if they do not agree with it. Furthermore, "community" is an ambiguous term.[28]

In August 2016, the World Bank adopted its new Environmental and Social Standards, including Environmental and Social Standard 7 (ESS7) on Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities (Indigenous Peoples, "IPs"), which requires free prior informed consent if the project will:

• have adverse impacts on land and natural resources subject to traditional ownership or under customary use or occupation;
• cause relocation of IPs from land and natural resources subject to traditional ownership or under customary use or occupation; or
• have significant impacts on IPs'cultural heritage that is material to the identity and/or cultural, ceremonial, or spiritual aspects of the affected IPs' lives.[29]

Bolivia ratified ILO Convention 169 and in 2007 also formally incorporated UNDRIP into its municipal law. In 2009, the nation also included the duty to consult Indigenous Peoples in its constitution but in a much less radical version of the draft, which required consent for the exploration of all resource activities. The legal requirements are very significant in a nation that has a wealth of natural resources and a large indigenous population. The risk of giving indigenous people a veto on government projects is an increase social conflict in certain regions. That was seen with the conflict surrounding the Isiboro Se´cure National Park and Indigenous Territory (TIPNIS). A road was planned through the park, and coca growers were for the project as it would expand their business. The indigenous population opposed the idea and said that consent should be needed for mega development in indigenous territories. The result was large protests in La Paz for fear of damage to the vital river system, illegal logging, and the alteration of the habitats of endangered animals in the area.[36] The state engaged in consultation with the Indigenous Peoples, but that worsened the problem, with activists criticized the government's lack of legal framework to protect indigenous people. The government claimed that indigenous expectations of were unrealistic.[37]