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Strengthening Indigenous Land Rights: 3 Challenges to “Free, Prior and Informed Consent”

Indigenous representatives from around the world are convening in New York this week for the 15th session of the UN Permanent Forum on Indigenous Issues. The Forum is the UN’s central coordinating and advisory body on indigenous issues, and the annual sessions provide the opportunity to take stock of issues affecting Indigenous Peoples around the world. One such issue is large-scale development projects’ ongoing threats to indigenous control of lands and resources.

Before the bulldozers arrive in their communities, indigenous men and women must be informed and given the opportunity to decide whether or not to allow such a project to happen. Under international human rights law, this right to “free, prior and informed consent” (FPIC) applies to all development projects that directly affect indigenous communities’ access to their lands and resources.

Looking back on the history and development of FPIC, one can see clear signs of progress, but also significant challenges to ensuring this right is realized. Here are three key obstacles to overcome:

1. FPIC is an internationally recognized human right, but isn’t always treated that way at the national level.

While Indigenous Peoples’ right to FPIC is explicitly incorporated into both binding and non-binding international human rights laws, not all countries have adopted these laws. For instance, the ILO Convention 169 on Indigenous and Tribal Peoples is a legally binding treaty recognizing indigenous rights to give consent, but it’s only ratified by and thus legally binding in 22 countries. Similarly, the legally binding International Covenant on Civil and Political Rights (ICCPR) has been ratified by 160 countries and has been authoritatively interpreted by the UN Human Rights Committee to protect FPIC rights, but not all countries embrace this interpretation. FPIC is also recognized in the UN Declaration on the Rights of Indigenous Peoples and the Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests (VGGTs), but these “soft laws” aren’t technically legally binding.

2. Few countries have incorporated FPIC into their national laws.

Thirty-six out of the 39 countries assessed on LandMark, a mapping platform of indigenous and community lands and legal rights, do not have national laws that provide indigenous communities with strong legal rights to FPIC. This is problematic given that many of these countries’ laws grant governments broad legal authority to take indigenous land without consultation or consent. A forthcoming WRI working paper explores how many countries’ laws do not require governments to identify, inform or consult affected landholders prior to acquiring land in a compulsory manner, despite international standards calling for governments to do so.

Of the countries assessed on LandMark, the Philippines, Colombia and Peru are the only three that have incorporated strong FPIC rights for indigenous communities in their national laws. Australia, Bolivia, South Africa, South Sudan and Tanzania have also made some progress by incorporating limited indigenous rights to give consent before their lands are acquired by governments or other outsiders. If followed in practice, these laws can protect indigenous communities from unwanted encroachment and help them safeguard their lands and resources.

3. FPIC is not always sensitive to gender issues.

Even when recognized by domestic laws, FPIC can have differing impacts on men and women.

A recent study of FPIC implementation highlights how women are not necessarily included in decision-making processes about land and resources. Women in a community affected by a palm oil concession in Desa Mekar Jaya, Indonesia, for example, stated that they had not heard of FPIC, and it was mostly men who were involved in community consultations related to the investment, despite the fact that women work side-by-side with men in Indonesia’s plantations. The fact that women were not consulted is particularly problematic given the risk of reproductive problems that can arise from exposure to pesticides and other hazardous chemicals used by the palm oil company. Given their role in rural communities and the impacts investments may have on them, it is important for women to be part of the FPIC process.

International standards—such as the VGGTs and the International Finance Corporation Performance Standards (IFC), which must be complied with by all investors financed by the IFC— now specifically recognize that FPIC must capture the views of both men and women, but it’s clear that there’s still more work to do to achieve gender equity in this area.

Looking Ahead: A Task for Governments

While there is still a long road ahead, there are reasons to be optimistic about the possibility of FPIC becoming universally recognized and protected. Some companies, for instance, are increasingly making commitments to recognize FPIC rights when conducting business. And indeed, it’s in their best interests to do so: FPIC can help to avoid the extensive costs that can arise from conflicts between investors and affected communities.

Nevertheless, FPIC cannot be fully realized without governments incorporating it into domestic laws and implementing it in gender-sensitive ways. When protected by law and implemented appropriately, FPIC can ensure that lands and resources are governed responsibly, and that development projects benefit the planet and the people who protect it. 

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