by Isabel Inguanzo Associate Professor Department of Political Science & Administration, University of Salamanca, Spain.
In this blog post Professor Inguanzo evaluates the efficacy of free, prior and informed consent for protecting indigenous people against appropriation of ancestral land for business enterprise.
Today, across the globe, indigenous land rights and other basic human rights associated with indigenous territories are mainly threatened by the actions of extractive industries and other businesses such as large-scale tree plantations. A recent systematic literature review on this latter type of industry suggests that land titles can actually protect against these negative impacts. However, the state of land titling across the globe is very uneven. Consequently, the full enjoyment of land and other basic human rights associated with it varies a great deal from country to country.
Land titles are paramount because they allow for the implementation of different mechanisms of multi-level governance, that could eventually foster an indigenous peoples’ right to self-determination. In that vein, indigenous peoples can participate and have a say on their uses of their land, either through bilateral agreements of co-management or correct implementation of the right to Free, Prior and Informed Consent (FPIC). A comparative study of FPIC protocols in North & South America, indicates that there is a ‘growing consensus among analysts that while FPIC is increasingly recognized as a global standard, its implementation in domestic contexts remains limited from Indigenous peoples’ perspective’.
This is particularly true in South-East Asia, where the implementation of FPIC is very uneven across countries and islands and largely dependent on the intermediating role of the state, but also on the type of plantation. Developments are also unequal within islands and across companies. According to Filer et al. (2020), at the beginning, the implementation of the Free Prior and Informed Consent was contested by oil palm companies, but it has recently been more accepted, once these companies started to sell their products to European markets, where FPIC was valued by customers.
In Cambodia, despite the fact that customary land rights are recognized under the Land Law 2001, the Cambodian government offers no meaningful consultation nor compensation for activities developed in indigenous land by external actors, except for those holding land titles. In neighbouring Laos, land rights of indigenous peoples are usually not respected, and many indigenous communities suffer from forced eviction from their homelands, severely impacting gender relations and food security. Even in countries like the Philippines, where the rights of indigenous peoples are better protected, the political will needed to really empower and support indigenous peoples’ rights in this type of arrangement is lacking.
As a response to the implementation gap of the FPIC, the Asian Indigenous Peoples’ Pact – a federation of indigenous peoples’ associations across Asia – has developed a training manual on FPIC. In this guidebook, FPIC is clearly divided into 2 equally necessary phases: first, consulting Indigenous Peoples, and second, obtaining consent from Indigenous Peoples. The consulting phase involves seven steps: 1) Initial consultation with IP leaders/representatives, 2) information dissemination, 3) Consultation with the indigenous community, 4) Community deliberations/discussions (among themselves), 5) search for additional information or clarification if needed and 6) Consultations/Dialogues for additional information or clarification. The second phase of the FPIC, in turn, requires five additional steps: 6) decision over form or methods for collective decision-making, 7) actual collective decision-taking, 8) informing project proponents of the result of the decision-making process, 9) establishment of grievance mechanisms and finally 10) Participation in monitoring and evaluation.
In a recent study focusing on the different multi-level governance (MLG) mechanisms to foster indigenous peoples’ rights across Malaysia, I interviewed indigenous activists, advocates and partners from different regions of Malaysia. The main findings of the study suggest that indigenous peoples’ satisfaction with the different MLG mechanisms highly depends on the quality of democracy at the state level and on the level of conflict between the state government and the indigenous organizations on the ground. More specifically, accountability of government officials and recognition of indigenous peoples as valid speakers and veto players in those decisions that involve them are key for MLG to work for indigenous peoples.
In terms of Free Prior and Informed Consent (FPIC), all interviewees agreed that it is not normal practice or at least is not well implemented according to international standards. FPIC is absent not only in development projects on traditional lands in Malaysia (which jeopardize their economic subsistence, food security and access to rituals and sacred places), but it is also missing in ‘projects aimed at collecting and transforming indigenous peoples’ knowledge about plants and the forest for the purpose of commercializing medicinal and beauty products’, according to the Special Rapporteur in the field of cultural rights.
The overall perception of all interviewees is that recognition of indigenous land is often missing, which in turn makes their participation in this type of mechanism almost non-existent. This argument was also stressed by the United Nations Special Rapporteur on the right to food ‘[There are] problems faced by communities in acquiring official recognition of native customary land rights and in participating in the decision-making processes related to major development projects affecting their lands and livelihood.’
According to the Indigenous activists and advocates I interviewed, the lack of recognition of Indigenous Peoples as valid speakers and political actors has led to unsuccessful attempts at co-management (if any), lack of implementation of FPIC throughout the country, and paternalistic approaches towards Indigenous Peoples in Peninsular Malaysia. In fact, innovative arrangements, such as co-management and FPIC, are neither the solution nor the obstacle for Indigenous activists and advocates. Based on the different responses, none of these arrangements are likely to work for indigenous peoples unless there are mechanisms to hold stakeholders accountable, and unless the indigenous peoples are recognized by the private and public actors as legitimate veto players in their ancestral lands, meaning they must have the right to oppose development projects.
Isabel Inguanzo is an Associate Professor at the Department of Political Science & Administration at University of Salamanca, Spain. (contact Isabel_io@usal.es)