The Inter-American Commission on Human Rights doesn’t pull any punches in its latest report on natural resources and the rights of indigenous communities to them.
Indigenous communities have the right to say “no” before large-scale projects begin, the Inter-American Commission on Human Rights says in its latest report. The Commission – a body of the Organization of American States tasked with promoting and protecting human rights in the Americas – just launched a new report looking at human rights protections for indigenous peoples’ and afro-descendent communities’ around natural resource projects. The report delves into the issue of Free, Prior, and Informed Consent (FPIC), leaving little room for FPIC naysayers to argue over the fundamental tenets of the principle.
With this report, the Commission reaffirms its position as a real thought leader on community consultation and consent related to oil, gas, and mining projects, weighing in on some of the more hotly debated questions related to FPIC implementation. Governments and companies looking to put FPIC policies into practice should pay close attention to this guidance. This includes many of the world’s largest companies, who are members of the International Council of Mining and Metals and bound by its FPIC requirement. Here’s what the Commission has to say about what FPIC should mean in practice:
Effective FPIC implementation requires governments and companies to avoid the use of manipulative or coercive tactics when they engage with communities. The report underscores this point, reminding readers that “there should be no coercion, deception, or any kind of force used” in consultations with communities. However, the Commission goes farther, also considering whether communities are actually obligated to engage in dialogue at all. What if communities decide against a project and choose not to engage in consultations – are they obligated to invest their time in these processes? The report answers with a clear ‘no’, stating that the Commission “…is directed to ensure that indigenous and tribal peoples can decide if they wish or not to initiate a consultation process.”
How early in project development should community consultation and consent processes begin? The Commission states that this should happen much earlier than it typically does – before concessions have been awarded. On the issue of granting project licenses without consultation, the report states:
… the [Latin America] region is plagued by a constant structural problem that relates to the granting of concessions, authorizations and permits of all kind without complying with indigenous peoples’ right to consultation and, where appropriate, free, prior and informed consent. With an alarming frequency, the Commission receives information about plans or projects of various kinds that affect the rights of indigenous and tribal peoples, who, nonetheless, are neither consulted, nor has their consent been obtained in the cases where it is required.
An informed community consultation process will facilitate the sharing of objective, accurate, and easily understood information about potential projects, including associated risks. The Commission’s report highlights the need for “full and precise information on the nature and consequences of the process on the peoples and communities consulted.” It specifies that the information provided be “sufficient, accessible and timely.” Additionally the report notes that in some circumstances states should provide independent technical assistance to indigenous peoples.
Fundamentally, communities must be able to give or withhold their consent to a project prior to the commencement of all activities. The report looks closely at the requirement for government to secure “consent” (as opposed to mere consultation), examining when this is mandatory. It cites the well-known Saramaka People v. Suriname case which found that “regarding large-scale development or extraction projects that would have a major impact within [the indigenous] territory, the State has a duty, not only to consult with the [indigenous peoples], but also to obtain their free, prior, and informed consent, according to their customs and traditions.” Using this decision as a starting point, the Commission goes further to examine what constitutes “large-scale.” For example, without a doubt, extractive industry projects fit the bill. The report states that “certain activities could be considered prima facie as large-scale, such as those related to large-scale mining, oil and gas exploration.” The Commission also notes that “large-scale” may refer to the impacts of the project and not just the project’s size. States must consider “human and social impact of the activity” when examining whether a project qualifies as large-scale and therefor requires community consent.
With its discussion of FPIC, the Commission lays out in black and white its views on how states should be putting the principle into practice. Yet governments have struggled to implement FPIC in practice throughout the region, despite a few important policy gains in countries like Peru and Chile. It’s time for governments to heed the Commission’s good advice and up their game on FPIC policy and implementation.