Free, Prior and Informed Consent and the Marcus Colchester Forest Peoples Programme Roundtable on Sustainable Palm Oil FPIC and the What is FPIC (cont.): Without coercion or duress ( Free ) Before the initiation of activities ( Prior ) After the complete sharing of available information on the proposed activities and their implications, according to an agreed process and with adequate time ( Informed ) Providing information may take time (eg ESIA), hence need for iterative interactions FPIC and the Why FPIC? It s the law It s part of best practice standards It protects community rights It is designed to forestall conflict It protects investors from risk It encourages successful development outcomes It s required under the standard FPIC and the Not really a new concept FPIC and the What is FPIC? Right to say yes or no to proposed developments on peoples lands Consent which is determined in conformity with, or with respect for, peoples cultures, customary systems and practices According to people s own representative organisations/ institutions Iterative and negotiated, not hurried and one- off FPIC and the FPIC in international law: International Human Rights Laws: UN Declaration on the Rights of Indigenous Peoples : especially Article 32 ILO : 6(2) y 7(1) CBD : 8j Jurisprudence: UN Committees on Human Rights and CERD Inter-American Commission and Court of Human Rights
FPIC and the UN Declaration on Rights of Indigenous Peoples: Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources FPIC and the Conflicts: Because so much land has been taken from communities without FPIC there are conflicts throughout the palm oil zone 500 conflicts between communities and oil palm estates in Indonesia, according to SW In 40 conflicts between communities and oil palm estates in Sarawak, communities are already suing Govt and companies in the courts, according to FPP and SW FPIC and the FPIC in other sectoral standards: Development policies eg UNDP, EC, IBD (resettlement), WBG (FPICon and BCS ) Plantations: FAO Voluntary Guidelines for Planted Forests: no resettlement without FPIC Timber: Forest Stewardship Council Dams: World Commission on Dams Extractives: Extractive Industries Review Protected Areas: WCPA, WPC, WCC, CBD EIAs: CBD s Akwe:kon Guidelines FPIC and the Protecting investments from risk early attention to FPIC issues can avoid significant costs during implementation Even as we refine what this principle means in operation, there is no question that as a principle and as a practice, free, prior, informed consent is a key part of legitimacy. And if you wonder if that is true, simply ask this question: Is your company better off having the people in the communities where you operate with you or against you? It is just plain common sense. WRI, 2006, Development Without Conflict: The Business Case for Community Consent, Washington DC FPIC and the FPIC and customary rights: Relates to customary lands and territories Requires agreement about the extent of customary lands over which FPIC is exercised Recognition of customary systems of collective decision-making and customary mechanisms of representation Provides a means of holding leadership accountable and ensuring community consensus FPIC and the FPIC in the P&C 2.3 Use of the land does not diminish the legal rights, or customary rights, of other users, without their free, prior and informed consent 7.4 No new plantings are established on local peoples land without their free, prior and informed consent, dealt with through a documented system that enables indigenous peoples, local communities and other stakeholders to express their views through their own representative institutions. 7.5 Local people are compensated for any agreed land acquisitions and relinquishment of rights, subject to their free, prior and informed consent and negotiated agreements.
FPIC in the FPIC : Indicators (2.3) Maps showing extent of recognised customary rights (criteria 2.3, 7.5 and 7.6) Copies of negotiated agreements detailing process of consent (criteria 2.3, 7.5 and 7.6) FPIC and the Challenges to FPIC in Indonesia: Unclear legal recognition of customary rights Customary rights expropriated to make way for national interest ( Controlling power of the State ) Inconsistent laws (some imply right to consent others imply not needed) Inadequate consultation and lack of FPIC Little or inadequate compensation Non-binding agreements and contested application FPIC in the FPIC : Guidance (2.3) Where lands are encumbered by legal or customary rights, the grower must demonstrate that these rights are understood and are not being threatened or reduced. This criterion should be considered in conjunction with criteria 6.4, 7.5 and 7.6. Where customary rights areas are unclear these are best established through participatory mapping exercises involving affected and neighbouring communities. FPIC and the Guidance (2.3) (cont.): Allows for sales and negotiated agreements Compensation for lost benefits and/or relinquished rights. Allowed to seek legal counsel Open decision-making Time for customary decision-making Agreements binding on all parties and enforceable in the courts. FPIC and the UN Committee on the Elimination of Racial Discrimination reviews Indonesian compliance The State party should amend its domestic laws to ensure that the concept of national interest [is] not used as a justification to override the rights of indigenous peoples [and] recommends that the State party secure the possession and ownership rights of local communities before proceeding with the Kalimantan Border Oil Palm Mega-project [and] ensure meaningful consultations are undertaken with concerned communities with a view to obtaining their consent and participation in the Plan CERD/C/IDN/CO/3 15 August 2007 paras 16 and 17
FPIC and the Challenges to FPIC in Sarawak: Native Customary Rights interpreted in very restricted way by government Idle land allocated to oil palm companies without recognition of rights or Konsep Baru requires surrender of NCRs to Government as Trustee for 60 years without clear benefit sharing Unclear consultation and consent process Growing conflicts, costly litigation SW and FPP, 2007, Land is Life: Land Rights and Oil Palm Development in Sarawak, Bogor FPIC and the The FPIC project: request for training Series of planned workshops with communities, companies and both together in Malaysia, PNG and Indonesia; handbook; and training materials Project agreed by EB Nov. 2006 (E 96,360) Application to PPP. Dutch govt. agreed Jan. 07 Funding blocked by government representatives Reduced project for Indonesia only became operational June 2007 with E 14,500 from EB Not yet found an company to volunteer FPIC and the Key lessons from review so far: Participatory mapping of customary lands Mapping of representative institutions Inclusive mechanisms of negotiation Participatory environmental and social impact assessments Provision of information in languages and forms suited to local people Iterative negotiations FPIC and the Key lessons: Govt. land acquisition procedures and laws in Sarawak and Indonesia do not adequately protect customary rights or require FPIC Private sector in awkward situation, hence need for standard to go beyond the law National Interpretations therefore also need to ensure that processes for customary land recognition and FPIC go beyond what the law requires FPIC and the More key lessons from review so far: Full clarity about land allocation on expiry of lease Clear and agreed benefit-sharing and smallholder arrangements Excision of No areas : ie refused consent Legalising agreements Inclusive and participatory M&E processes Dispute resolution and grievance procedures Renegotiation at re-planting Renegotiation in conflict areas is possible
Thank you www.rspo.org www.forestpeoples.org RS