Seeking consent: how the FPIC clause is treated by sustainability approaches across sectors

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The first time the term ‘Free, Prior and Informed Consent’ appeared in the literature was as part of indigenous peoples’ struggles against forced displacement in the 1980s. It was not until 1989 that the concept was formally referenced when the International Labour Organization (ILO) included ‘Free and Informed Consent’ in its Convention Concerning Indigenous and Tribal Peoples in Independent Countries, C169/1989 (Hanna and Vanclay, 2013).

A lot has been written about FPIC since then, and many authors have tried to define it (Vanclay and Esteves, 2011):

Free, meaning that there must be no coercion, intimidation or manipulation by companies or governments, and that should a community say ‘no’ there must be no retaliation. Prior, meaning that consent should be sought and received before any activity on community land is commenced and that sufficient time is provided for adequate consideration by any affected communities. Informed, meaning that there is full disclosure by project developers of their plans in the language acceptable to the affected communities, and that each community has enough information to have a reasonable understanding of what those plans will likely mean for them, including of the social impacts they will experience. Consent, meaning that communities have a real choice, that they can say yes if there is a good flow of benefits and development opportunities to them, or they can say no if they are not satisfied with the deal, and that there is a workable mechanism for determining whether there is widespread consent in the community as a whole and not just a small elite group within the community’.

Indigenous rights are addressed by many key international agreements – e.g Charter of the United Nations (1945), Convention on the Prevention and Punishment of the Crime of Genocide (1948), World Bank Operational Directive 4.20 (1991), Article 32(2) of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) – but their protection in practice is insufficient. FPIC is, on this basis, offered as a tool to channel these voices. For its implementation, it requires a process that ensures indigenous peoples’ are masters of their own fate (Hanna and Vanclay, 2013).

In this context, sustainability standards can play an important role. Since their conception, one of the main goals of standards systems has been to ensure the social protection of producers and communities. For example, the Forest Stewardship Council has intended to work with Aboriginal communities since its formation in the 1990s (Tikina et al., 2010). Mining standards are also critical, as the nature of exploration and land access needed in this sector makes FPIC particularly pertinent to them. A growing number of market-based tools (sustainability standards and other supply chain tools) operate in this space and much attention is been given to the potential contribution of these tools in improving social conditions, community benefits and reducing conflict. The rising importance of FPIC and the profile of sustainability standards makes it fertile ground for research.

ISEAL recently completed a systematic search of evidence and research in response to the following questions:

– What can we learn about the extent to which the adoption of the FPIC principle protects the rights and interests of indigenous peoples and other marginalised groups?

– What are some of the key challenges and barriers faced in more effective implementation of FPIC?

– What do we know about the effectiveness and impacts of sustainability standards and other leading supply-chain based sustainability approaches in operationalising and realising the principle of FPIC?

– What practical lessons can be drawn for standards working in the mining and extractive sector on improving their work on FPIC and deepening social impacts of their schemes

The first phase, including a systematic search and mapping of relevant literature, has just been completed and consisted of searches in academic databases (e.g Jstor, Web of Science and CABI) and a review of grey literature (Jstor, Google scholar and relevant specific websites). The papers extracted from this first step were then screened at a title and abstract level. Full text screened papers that met the requirements were then categorised and coded according to Evidensia’s approach and methodology.

The search yielded 82 credible research papers indicating that there is much learning in store for sustainability approaches on the topic of FPIC. All this literature is now available on Evidensia – the knowledge and evidence portal for understanding the impacts of sustainability tools.

The search yielded a much higher volume of research on the topic than we had anticipated which was a pleasant surprise. Out of 82 papers, 60% of papers were published between 2013 and 2017. The most studied areas are Asia (25%), South America (11%) and Africa (10%), with a special concentration of studies focusing on Indonesia (14%).

In terms of sectors, 28% focussed on agriculture (mostly palm oil), 23% focussed on forestry (mostly community forest management), 20% focussed on the mining and extractives sector, 10% focussed exclusively on energy (mostly biofuel related) and around 12% multi-sector. The most recurrent tools analysed are Forest Stewardship Council (FSC), Roundtable on Sustainable Palm Oil (RSPO) and REDD+; although there is emerging literature on tools such as the Roundtable on Sustainable Biofuels (RSB) and standard-setting and certification initiatives such as the Aluminium Stewardship Initiative.

This literature search is just the first step in a journey that aims to generate and communicate with stakeholders what the existing research says about the effectiveness of sustainability standards in ensuring Free Prior and Informed Consent (FPIC), with the end goal of improving the social impacts of their systems. In the next months, a deep analysis of the key insights, lessons and practical action points that can be drawn from the literature body will be undertaken.

The results of the analysis will be shared in August Evidensia newsletter, to which you can subscribe here.

Mendez, R.
Impacts Coordinator at ISEAL Alliance

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