2005 International Conference on Engaging Communities - Free Prior and Informed Consent

2005 International Conference on Engaging Communities

FREE PRIOR AND INFORMED CONSENT

Elements of a Common Understanding1

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Areas of Relevance

• In relation to indigenous lands and territories; including sacred sites (may include exploration, such as archaeological explorations, as well as development and use).
• In relation to treaties, agreements and other constructive arrangements between states and indigenous peoples, tribes and nations.
• In relation, but not limited to, extractive industries, conservation, hydro-development, other developments and tourism activities in indigenous areas leading to possible exploration, development and use of indigenous territories and/or resources.
• In relation to access to natural resources including biological resources, genetic resources and/or traditional knowledge of indigenous peoples, leading to possible exploration, development or use thereof.
• In relation to development projects encompassing the full project cycle, including but not limited to assessment, planning, implementation, monitoring, evaluation and closure - whether the projects be addressed to indigenous communities or, while not addressed to them, may affect or impact upon them.
• In relation to UN agencies and other intergovernmental organizations who undertake studies on the impact of projects to be implemented in indigenous peoples territories.
• In relation to policies and legislation dealing with or affecting indigenous peoples.
• In relation to any policies or programmes that may lead to the removal of their children, or their removal, displacement or relocation from their traditional territories.

Elements

What

Free should imply no coercion, intimidation or manipulation;

Prior should imply consent has been sought sufficiently in advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/consensus processes;

Informed - should imply that information is provided that covers (at least) the following aspects:

1. The nature, size, pace, reversibility and scope of any proposed project or activity;
2. The reason/s or purpose of the project and/or activity;
3. The duration of the above;
4. The locality of areas that will be affected;
5. A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle;
6. Personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others)
7. Procedures that the project may entail.

Consent

Consultation and participation are crucial components of a consent process. Consultation should be undertaken in good faith. The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. Consultation requires time and an effective system for communicating among interest holders. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. The inclusion of a gender perspective and the participation of indigenous women is essential, as well as participation of children and youth as appropriate. This process may include the option of withholding consent.

Consent to any agreement should be interpreted as indigenous peoples have
reasonably understood it.

When?

FPIC should be sought sufficiently in advance of commencement or authorization of activities, taking into account indigenous peoples' own decision-making processes, in phases of assessment, planning, implementation, monitoring, evaluation and closure of a project.

Who?

Indigenous peoples should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities. In FPIC processes, indigenous peoples, UN Agencies and governments should ensure a gender balance and take into account the views of children and youth as relevant.

How?

Information should be accurate and in a form that is accessible and understandable, including in a language that the indigenous peoples will fully understand. The format in which information is distributed should take into account the oral traditions of indigenous peoples and their languages.

Procedures/Mechanisms

• Mechanisms and procedures should be established to verify FPIC as described above, including mechanisms of oversight and redress, such as the creation of national mechanisms.
• As a core principle of FPIC, all sides of a FPIC process must have equal opportunity to debate any proposed agreement/development/project. "Equal opportunity" should be understood to mean equal access to financial, human and material resources in order for communities to fully and meaningfully debate in indigenous language/s as appropriate, or through any other agreed means on any agreement or project that will have or may have an impact, whether positive or negative, on their development as distinct peoples or an impact on their rights to their territories and/or natural resources.
• FPIC could be strengthened by establishing procedures to challenge and to independently review these processes.
• Determination that the elements of FPIC have not been respected may lead to the revocation of consent given.

Secretariat of the UN Permanent Forum on Indigenous Issues.

Endnote

1. Excerpt from the Report of the International Workshop on Methodologies Regarding Free Prior and Informed Consent E/C.19/2005/3

Last updated 24 January 2006.