Free and Prior Informed Consent (FPIC) in Carbon Projects
Free & Prior Informed Consent (FPIC) in Carbon Projects Delia C. Catacutan ICRAF, Nairobi, Kenya
What is FPIC?• A principle that a community has the right to give or withhold its consent to proposed undertaking that may affect the lands they customarily own, occupy or otherwise use.• A practice of informed, non-coercive negotiations between researchers, development agencies, investors, companies or governments and indigenous peoples prior to any undertaking, research, development or business on their customary lands.• A right to allow for indigenous peoples to reach consensus and make decisions according to their customary systems of decision-making.• A tool for achieving greater equity and a natural pathway to a co- management role for local communities in large development projects.
FPICA decision-making process that:Free: does not involve coercion/manipulationPrior: is made before activities are undertakenInformed: is founded upon an understanding of the full range of issues and potential impactsConsent: involves granting or withholding consent – saying ‘Yes Yes’ or ‘No No’ to an activity, programme or policy Weitzner 2006
What does the FPIC principle consist of?• Information about, and consultation on any proposed initiative and its likely impacts• Meaningful, free and voluntary participation of indigenous peoples• Representation of indigenous institutions
Objective of FPICTo secure the rights of indigenous peoples and local communities to self-determination, control access to their land and natural resources, andshare in the benefits when these are utilized by others. Where is FPIC relevant?When governments make regulatory decisions, for example, allowinglogging in forests traditionally occupied by indigenous peoples, ordisplacing riverside communities in order to construct a large hydropowerdam (WRI 2005)In infrastructure planning from the building of roads that traverse throughancestral domains, to tourism development decisions such as providingaccess to sites considered sacred by tribal people.In making decisions about bioprospecting for genetic resources as it is formaking choices about locating major energy projects, from power plantsto pipelines.
Benefits of FPIC requirement• Enables affected people to negotiate more favorable relocation terms, including legally binding provisions on compensation, support for new housing, and necessary infrastructure for shelter, livelihoods and education.• Allow communities to negotiate fair, equitable, and enforceable terms of revenue- and other benefit- sharing.• The inclusion of FPIC as a legal condition for financing, investment, or regulatory decisions could become a critical means to make poverty alleviation programs more sustainable (Goodland 2004; Kamijyo 2004).• Block unacceptable exploration and investments in ancestral domains.
AccomplishmentsBy insisting on their right to FPIC, forest peoples in Indonesia have beenable to block plantations and dams planned for their lands and have beenable to negotiate fairer deals with palm oil developers, loggers and localgovernment land use planners.The Kalahan forest people in the Philippines was able to block theestablishment of major mining exploration in the forest.The use of FPIC is now expanded to non-indigenous lands or ancestraldomains. Compliance to ‘ethical issues’ in R&D interventions are nowbased on FPIC principle.
FPIC as key principle in national and international law and jurisprudence• The Philippines (Congress of the Philippines 1997) and Australia (Commonwealth of Australia 1976: Sections 66-78) have enacted laws requiring that FPIC be obtained by the government for projects within the ancestral domains.• The World Commission on Dams (WCD 2000:xxxiv-xxxv,98-112) and the Extractive Industries Review (World Bank Group 2003 Executive Summary: 2-3, Volume 2:29-33, 47-50; MacKay 2004) of the World Bank have recommended the adoption of FPIC in making decisions about dams and oil, gas, and mining projects.• FPIC has been acknowledged in the Convention on Biological Diversity, with regard to access to and benefit-sharing of genetic resources (Perrault 2004: 22; Casas 2004:2728).• UN Declaration on the rights of IPs (Sub-Commission resolution 1994/45).• UN agencies and multi-lateral organizations have either institutionalized FPIC requirement in financing projects, while others are on adhoc basis.• And more recently, in REDD and related initiatives
Pitfalls and obstacles of FPICPower is unbalanced! As a non-litigation tool for conflict resolution, FPIC failed to resolve conflict between local people and the Sawit Plantation Development in Sumatra. Almost 7 million has of Sumatran swamp-peat forest would be converted to Sawit-palm oil plantation, despite strong opposition from local people—the conflict has resulted to violence and human rights violations.
Continue…. Identifying who should verify that the right to FPIC has been respected and how this should be done. Making free, prior and informed consent work: challenges and prospects for indigenous peoples (FPP, June 2007), identifies some experiences with third-party audits for the Forest Stewardship Council (FSC) in Indonesia and suggests that verifiers have been unduly lenient about what constitutes adequate compliance, thereby weakening any leverage that communities may gain from companies’ obligations to respect their rights and priorities. Lack of standard FPIC procedures (Case in the Philippines in 2001) Publication of FPIC verification procedures has also proven problematic by bribes and corruption. Another challenge for indigenous peoples in their efforts to exercise their right to FPIC is to ensure that their systems of decision-making are genuinely representative and made in ways that are inclusive of, and accountable to members of their communities.
Manupali Watershed, Philippines 2001• ICRAF researchers have been working in the watershed since 1994 with very good working relationship with indigenous communities.• Researchers have had customary rituals every time an interview, field visit and an experiment is made, and when new researchers or visitors arrive.• In 2000, the indigenous community filed a case against the DENR for failure to comply with FPIC for a World Bank project. The Tribal Chief penalized everyone working in the watershed, including ICRAF.• ICRAF offered to be subjected to the FPIC process where there was none before.• ICRAF incurred the costs for socio-cultural acceptability assessment with a huge ritual witnessed by the entire community.• A report was to be written by the community and a MoA was to be prepared by both parties, but the report was never done!• The World Bank project was withdrawn, creating division within the indigenous community, as some leaders were in-favor of the WB project.
Important remaining questions• How is ‘free’ defined in practice?• How far ahead does ‘prior’ mean?• What are the formal terms of ‘informed consent’?• What is the role of customary law in FPIC?• In a diverse community, how is consent given and who gives the consent?• Is a majority enough or is full consensus required? Is a written, legally binding agreement necessary?• How is FPIC verified? Does the government verify it? or is oversight by an independent party necessary?• In implementing FPIC, how do we ensure a balance between the state, the general public interest, and affected community interests, particularly in the distribution of benefits?
Why FPIC in carbon projects?• Much of the emissions and sequestration issues relate to land, and access to land (with or without forest cover).• With expectations of new economic value linked to the maintenance, avoided disappearance or restoration of terrestrial C stocks, the issues of control over land obtained a new dimension.• Most carbon projects especially those under the REDD (+) mechanism are in common lands, state owned/controlled and community managed areas, ancestral domains, or in contested areas where land and property rights are ambiguous.
Why FPIC in carbon projects• Especially where groups have unequal access to information, forms of speculation came into play, with some actors‘’ promising good prices to local governments and communities.• Carbon rights are linked to land and property rights. Who has the right to sell carbon, and benefit from it?• Carbon has thus become a ‘rights’ issue.• Since FPIC is a rights-based approach to resource management and conflict resolution, it has become more important in carbon projects.• It is unethical, morally incorrect and in some cases, illegal to implement carbon projects without securing FPIC.
Principles adopted in REDD• Principle 1: Rights to lands, territories and resources are recognized and respected by the REDD+ program• Principle 2: The benefits of the REDD+ program are shared equitably among all relevant rights holders and stakeholders.• Principle 3: The REDD+ program improves long‐term livelihood security and well‐being of indigenous peoples and local communities with special attention to the most vulnerable people.• Principle 4: The REDD+ program contributes to broader sustainable development and good governance objectives.• Principle 5: The REDD+ program maintains and enhances biodiversity and ecosystem services.• Principle 6: All relevant rights holders and stakeholders participate fully and effectively in the REDD+ program.• Principle 7: All rights holders and stakeholders have timely access to appropriate and accurate information to enable informed decision‐making and good governance of the REDD+ program.• Principle 8: The REDD+ program complies with applicable local and national laws and international treaties, conventions and agreements.
Conclusion/recommendations …• Carbon projects should not only embrace FPIC as a design principle, but should seriously implement and allocate funds for it.• Design teams of carbon projects should include FPIC in project design missions.• FPIC should be linked to EIA or SIA processes.• 3rd party verification should be transparent and strictly enforced.• Effective communication is crucial in FPIC process
References/Readings• International workshop on methodologies regarding FPIC and indigenous peoples,, New York, 17-19 January 2005. PFII/2005/WS.2/10. Unedited version• Parshuram Tamang. 2005. Workshop on FPIC and Indigenous Peoples, organized by the Secretariat of UNPFII, 17-19 January 2005,UN Headquarter, New York, USA.• Viviane Weitzner . 2006. Free, Prior and Informed Consent: A Brief Overview . Resource Extraction and Local Communities Forum. April 3 4, 2006.Toronto .• Empowering Communities Through Free, Prior, and Informed Consent. http//Home / Publications / People & Ecosystems / World Resources 2005 -- The Wealth of the Poor: Managing ecosystems to fight poverty• Kamijyo, M. 2004. The Equator Principles?: Improved Social Responsibility in the Private Finance Sector. Sustainable Development Law and Policy, Special Issue: Prior Informed Consent IV(2):35-39.• Tebtebba (Indigenous Peoples International Centre for Policy Research and Education). 2002. Indigenous Peoples and Sustainable Development. Multi Stakeholder Dialogue of the WWSD PrepCom 2, New York, January 28-February 8, 2002. Baguio City, The Philippines: Tebtebba• Goodland, R. 2004. Free, and Prior Informed Consent and the World Bank Group. Sustainable Development Law and Policy, Special Issue: Prior Informed Consent IV(2):66-74.• Congress of the Philippines. 1997. The Indigenous Peoples Rights Act of 1997.? In A Divided Court: Case Materials from the Constitutional Challenge to the Indigenous Peoples? Rights Act of 1997, ed. A. Ballesteros. Quezon City, The Philippines: Legal Rights and Natural Resources Center-Kasama sa Kalikasan. Online at http://www.ncip.gov.ph/downloads/philippines-ipra-1999-en.pdf.• Jonathan Sohn. 2007. Development without conflict. WRI.