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Kabila

Free, prior and informed consent

Free, prior and informed consent is the principle that a people must agree before a project affects its land or life. You will learn what each word requires and how the principle works in practice.

Lesson 4 of 5 in "Rights and law", about 6 minutes

Dams, mines, plantations, roads and even national parks have again and again been placed on indigenous land without the residents having any say. Free, prior and informed consent, usually shortened to FPIC, is the answer international law has developed. It says that a people has the right to give or withhold agreement to anything that would significantly affect its lands, resources or way of life.

Four words, four tests

How free, prior and informed consent works
before any approvalif yesProject proposedFind who decidesShare full factsCommunity discussesYes, no or conditionsAgreement recordedMonitor and review

  1. Project proposed. Someone proposes a project on or near indigenous land. 'Prior' means the people must be asked at this point, before licences are granted or work starts, not afterwards.
  2. Find who decides. The proposer must find out who is affected and who can speak for them. The community chooses its own representatives. Outsiders may not pick a convenient leader.
  3. Share full facts. 'Informed' means the full picture: what will be built, for how long, what could go wrong, and who profits. It must be explained in the community's language.
  4. Community discusses. 'Free' means no pressure. The community discusses in its own forums, at its own pace. Paying individuals to agree, or sending police to meetings, breaks this rule.
  5. Yes, no or conditions. 'Consent' means the answer can be no. In 2013 twelve village councils of the Dongria Kondh and their neighbours in Odisha, India, all rejected a bauxite mine in the Niyamgiri hills.
  6. Agreement recorded. If the people agree, the terms are set down in a form both sides can enforce. These can include payments, jobs, protection of sacred sites and ways to raise complaints.
  7. Monitor and review. Consent is not a single signature. The community watches how promises are kept. If the project changes or expands, the process starts again.

Where it comes from

The United Nations Declaration on the Rights of Indigenous Peoples refers to FPIC in several articles. It covers relocation from land, laws and administrative measures that affect indigenous peoples, and projects involving their lands and resources, especially mining and water. ILO Convention 169 requires consultation in good faith with the aim of agreement, and consent before any relocation.

Consultation is not consent

Much of the argument is over one question: must the answer be obeyed? Many governments accept a duty to consult but not a duty to stop if the community says no. Indigenous organisations reply that consultation without the power to refuse is only a formality. International bodies generally hold that the larger the impact on a people, the stronger the requirement for actual consent.

Consultation
  • The community is informed and heard
  • The government makes the final decision
  • The project may proceed despite objection
Consent
  • The community is informed and decides
  • The community's answer is final
  • The project does not proceed without agreement

India: the Niyamgiri decision

India's clearest example concerns the Niyamgiri hills of Odisha, home of the Dongria Kondh, who hold the hills sacred. A mining company sought to extract bauxite, the ore of aluminium, from the hilltop. In 2013 the Supreme Court of India ruled that the village assemblies of the affected communities must decide whether the mine would infringe their religious and cultural rights. Twelve assemblies were held. All twelve voted against the mine, and the project was refused.

Elsewhere

How it goes wrong

In practice the principle is often hollowed out. A company may hold a single meeting and call it consent. It may deal only with leaders it has chosen or paid. Information may come as thick technical reports in a foreign language. Communities may be split by offers of jobs or cash. Or consultation may come after the licence is already granted, when little can change.

What good practice looks like

Good practice starts with the community's own rules. A number of peoples have written consent protocols that set out who must be approached, how decisions are made and how long they take. Independent advice, paid for without strings, helps a community judge technical claims. Agreements should be written down, monitored and open to review. A community that says no should be able to trust that the answer will stand.

FPIC is sometimes described as a veto on development. Its supporters put it differently. Indigenous peoples are not against development as such. Many have agreed to projects on terms that bring them a fair share and protect what matters to them. The principle ensures that they are parties to the decision, not obstacles to be moved.

Words in this lesson

Seven peoples, once a week

Every Monday: seven peoples you may never have heard of, who they are and where they live.