The principle of ‘free, prior and informed consent’ (FPIC) means that indigenous peoples have a right to give or withhold consent to projects that will affect them, especially actions affecting their customary lands, territories and natural resources. In some cases this also applies to other forest-dependent communities.
This page gives a brief introduction to the legal basis for free, prior and informed consent in international instruments (the UN Declaration on the Rights of Indigenous Peoples, and the International Labour Organisation’s Convention on Indigenous and Tribal Peoples in Independent Countries, ILO 169). It looks at free, prior and informed consent in national legislation and corporate policies, and in the international agendas of the CBD, REDD+ and FLEGT. It also shows that these processes are not without their challenges. Community-based forest monitoring can help verify whether the processes around free, prior and informed consent are being done effectively.
There is no single way to ‘do FPIC’ – the process will be determined by the people involved, and will be specific to their culture and local context. So we do not give advice on this here, although Forest COMPASS does have examples of putting free, prior and informed consent into practice; for example, in Cameroon, Brazil and Vietnam. The principles of free, prior and informed consent were also at the heart of our work to develop effective data-sharing protocols in Guyana, which ensured that relevant data reached the right people, while protecting the interests of communities.
Community-based monitoring initiatives can also be guided by the key elements and principles laid out in various guidelines, such as these from WWF, from the Center For People and Forests and from the UN REDD+ Programme.
FPIC in international instruments on indigenous peoples
“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, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
The text above is from Article 32 of the UN Declaration on the Rights of Indigenous People. The Declaration sets out the individual and collective rights of indigenous peoples, and was adopted in 2007. Although this is not of itself legally binding, it has been fundamental in establishing the concept of ‘free, prior and informed consent’ in relation to projects involving indigenous peoples and the natural resources they use. This includes the resources considered by community-based forest monitoring.
This UN Handbook (p21) explains that the Declaration’s provisions on land rights are legally binding for states that have ratified international human rights treaties, given the developing and authoritative interpretations of human rights law.
The International Labour Organisation’s Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169) of 1989 is legally binding, although as of September 2015, it has been ratified by just 20 countries. Its central themes are consultation and participation. Articles 6 and 7 make clear that governments shall consult with indigenous peoples with the objective of achieving agreement or consent to proposed measures, and that indigenous peoples have the right to decide their own priorities for development, and to participate in their design, implementation and evaluation.
Community-based forest monitoring can help assess the ways in which these international instruments have been implemented during the course of developments that affect them, such as REDD+ projects or initiatives to support the CBD. It can also help identify potential improvements for project implementation, and ensure that indigenous people’s other rights are also respected, as described here.
The text of the UN Declaration on the Rights of Indigenous Peoples was developed over 25 years of discussions, and was influential long before it was finally adopted. The concept of ‘free, prior and informed consent’ has taken on an increasingly high profile, being incorporated into national law, corporate policies, and international conservation agreements, as described below.
FPIC in international agendas for conservation
Forest conservation involves decisions and changes to forest use and management, which can affect forest residents and indigenous people. The CBD, REDD+ and FLEGT all raise the issue of equitably sharing benefits, from biodiversity, carbon markets and timber respectively. All three agendas have the potential to restrict the ways that local communities can use forests. Free, prior and informed consent is one part of the process of enabling communities to take informed decisions, and to safeguard their interests by shaping and monitoring the way these projects develop.
With its focus on strengthening forest governance, FLEGT processes often aim to support FPIC, as is the case in Honduras and Cameroon. The Nagoya Protocol to the CBD aims to ensure that the traditional knowledge of indigenous and local communities about genetic resources is only accessed with their free, prior and informed consent; how this is working in practice is explored here.
FPIC has particular prominence in REDD+. UNFCCC REDD+ Safeguard (c) explicitly refers to the UN Declaration. Safeguard (d) requires the ‘full and effective’ participation of indigenous peoples, and although FPIC alone does not fulfil this requirement, it can be one part of the process (as discussed in this legal analysis from Client Earth). Various sets of guidelines and standards emphasise the importance of FPIC for REDD+. In many cases, these extend the process to include non-indigenous forest communities; see, for example, the voluntary Climate, Community and Biodiversity Standards for REDD+ (p24) and the UN REDD+ Programme Guidelines on Free, Prior and Informed Consent and associated Legal Companion.
As well as being a way to verify if these agendas are respecting the right to FPIC, community-based forest monitoring itself should also be carried out in with the free, prior and informed consent of local participants.
FPIC in national legislation, corporate policies and conservation NGOs
Although free, prior and informed consent does not rely on national legislation to be a legal requirement, some countries have incorporated it into national laws. This report from the Forest Peoples Programme gives some examples, such as Peru, where the law requires the free, prior and informed consent of communal property holders before the establishment of protected areas. However, protected areas are just one type of intervention affecting indigenous lands; this law is only applicable to communities that already have land title; and research suggests that even where the Peruvian law is clearly applicable, it has not safeguarded communities’ rights in practice.
Some corporations have incorporated FPIC into their policies for corporate social responsibility. This is one of the ways companies can promote social inclusion, including as part of efforts to reach zero net deforestation along their supply chains (described on p15 of this report). Some companies have set out their approach to FPIC; for example, this statement on FPIC from the International Council on Mining and Metals, which applies to all 22 of the council’s members.
FPIC has also been taken up as an important principle for conservation by civil society bodies. For example, the WWF’s statement of principles on indigenous peoples and conservation affirms that WWF will not support interventions (such as the creation of protected areas) that have not received the prior free and informed consent of affected indigenous communities, and/or would adversely impact their territories or their rights.
Challenges to implementing FPIC
Free, prior and informed consent (FPIC) can seem like a simple concept, but can be extremely hard to pin down from a legal perspective. Client Earth's legal analysis of the applicability of FPIC to REDD+ safeguards finds that the precise scope and operationalisation of FPIC can only be ascertained through an examination of regional and national jurisprudence and country practice. The Land Coalition also look at FPIC in their assessment of indigenous rights to land and resources, explaining that the importance of obtaining consent will vary, and the UN Declaration ont he Rights of Indigenous Peoples should not be seen as giving indigenous peoples a general ‘veto power’.
There is understandable uncertainty over when, where and how FPIC applies. As shown in the page on national law and corporate practice, even where these policies incorporate FPIC, these can take a narrower view of FPIC than international law or guidance, and can be inconsistently applied, as shown by the example from Peru. There are also challenges such as who pays for the process (and the potential for conflicts of interests if this is, for example, a company interested in mining in an area); who verifies whether it has been done correctly; and what happens if consent is withdrawn. Uncertain land ownership and differing understandings of key concepts such as ‘consent’ exacerbate the difficulties (see this GCP report on acheiving zero net deforestation, p15, for example). Community-based forest monitoring is one way to explore the way these issues play out on the ground.