‘Making Free Prior and Informed Consent a Reality’: New Report Launched in London

‘Making Free Prior and Informed Consent a Reality’: New Report Launched in London

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May 8, 2013

Last week London played host to Indigenous delegates from six continents, the UN Special Rapporteur for Indigenous Peoples James Anaya and several mining industry representatives, all present for the launch of a new report concerning the Indigenous right to Free Prior and Informed Consent (FPIC).

Commissioned by Indigenous Peoples Links (PIPLinks) amongst others, the new study is part of a wider advocacy project that is being coordinated by UK based civil society organisations and Middlesex University School of Law. Its aim is to help make FPIC a reality in the mining industry. It is hoped the report will provide a framework for meaningful discussions between Indigenous peoples and mining companies.

The day before the launch Indigenous speakers from Canada, Norway, Australia and Colombia met with members of local NGOs to share their experiences with FPIC and mining. Their personal accounts relayed the commonality of the global fight being led by Indigenous peoples to turn back the tide of the extractive industries. At the heart of this battle is the provision of FPIC as an indivisible facet of the Indigenous right to self-determination.

Incomplete understandings of FPIC and its historical subversion at the hands of industry have meant that, whilst it exists on paper, FPIC is yet to be properly realized in practice. Every Indigenous delegate at the meet had their own story of how their right to FPIC had been co-opted.

According to Bryan Wyatt of the National Native Title Council, Australia, this has much to do with the attitude of the mining companies. He argues that they “don’t understand that FPIC means the right to say no as well. They think ‘consent’ means yes, but it doesn’t and we need to tell them that.”

On the ground, Indigenous perspectives on how FPIC should be operationalized have been routinely ignored. Yet if it is to be properly realized, the provision of FPIC must be interpreted according to its Indigenous context. For some it may be a matter of being able to say ‘no’ to mining flat out, but for others it may be the start of a process of consultation.

John Cutfeet of Kitchenuhmaykoosib Inninuwug (KI) First Nation, Canada relayed that the KI “respect the sovereign right of future generations to review our decisions.”

This view was seconded by Anne Marie Sam of the Nak’azdli First Nation, who described that for the Nak’adzli it could be appropriate for FPIC to be “an ongoing process.”

The report seeks to emphasize the importance of this grounded knowledge. Rather than trying to find a short definition for FPIC the new study seeks to elucidate its general principles to iron out the complications that industry hides behind. Recognising the concerns of Indigenous communities and that the promises and behaviour of mining companies are often diametrically opposed it places emphasis on the communities sovereign right to choose according to their own form of governance.

Part of the report is dedicated to highlighting the sophisticated protocols for the realization of FPIC that many Indigenous peoples have already developed themselves. These are incredibly important as they allow critics of mining companies to respond when asked ‘how can FPIC be done?’ A significant stumbling block in the past.

As Indigenous peoples develop their own ways of making FPIC a reality, mining companies that are serious about cleaning up their act must accept that this is the rights-based FPIC they must recognize. Those that don’t must be challenged ceaselessly.

As the old adage goes however, you must “know your enemy,” and the dialogue concerning FPIC must run both ways. Thus, on the day of the report launch, Indigenous delegates and a few NGO members attended a high level round table meeting with industry representatives to discuss the report, FPIC and the realities of mining.

It may be that meetings such as these are key to finding the “minimum common ground for understanding” necessary for the “effective protection and realization of Indigenous peoples’ rights,” according to James Anaya.

An understanding is absolutely necessary if FPIC is to be operationalized and defined by Indigenous Peoples without becoming divorced from their right to self-determination. It must be hoped that this new report and the chorus of Indigenous voices in support of it can make a real and lasting impression.

To read the full report online, as a pdf or in Spanish click here.

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