Indigenous Peoples are crying: 'C' means Consent!

Published by MAC on 2011-06-07
Source: Indian Country Today, Statements

First Nations to U.N. Forum: Prior and Informed Consent, Not Just Consultation

Indian Country Today

30 May 2011

Canada and the U.S. may have signed on with the United Nations Declaration on the Rights of Indigenous Peoples back in November and December, respectively. But in at least two areas-genetic resources and mining-both countries are trying to wiggle out of the clause requiring "prior and informed consent" from indigenous peoples when it comes to activities on their land and person.

In a working-group session for the Commission on Sustainable Development just before the Forum began, four nations - Canada, Australia, New Zealand and the U.S. - asked that the words "free, prior and informed consent" (FPIC) regarding indigenous and local communities be deleted when it came to mining, according to session notes distributed by the Earth Negotiations Bulletin, a website that tracks information on environment and development negotiations.

Mohawk Nation representative Kenneth Deer noted as much in his May 16 address to the Tenth Session of the United Nations Permanent Forum on Indigenous Issues and spoke of the attempted undermining of the agreement in other arenas too. Speaking on behalf of Canada's indigenous groups, Deer, who hails from the Mohawk Nation at Kahnawà:ke, expressed concern about Canada's interpretation of the "C" in FPIC as "consultation" rather than "consent."

FPIC shows up in four articles of the U.N. Declaration, which also says that any entity violating that right must provide redress, he noted.

"The right of FPIC has far-ranging significance for indigenous peoples, especially in the context of human rights and climate change," he said in his statement on behalf of Canada's First Nations organizations, as well as Amnesty International and other groups. "These issues are generally key considerations, particularly where large-scale developments are concerned."

Other international and U.S. bodies besides the Declaration refer to consent rather than consultation, he said. For instance the U.N. Committee on the Elimination of Racial Discrimination (CERD) stipulates that "no decisions directly relating to [indigenous] rights and interests are taken without their informed consent," he noted.

"Our organizations are deeply concerned by the continued opposition to FPIC by some states," Deer said. "There appear to be increasing efforts to undermine or roll back this vital human rights standard."

For instance the U.S., even back when it endorsed the Declaration, mentioned "meaningful consultation" with tribal leaders but not necessarily agreement, Deer said. Under that interpretation, governments and corporations could just tell the indigenous communities what they were doing and continue doing it.

"This is contrary to the very purpose of FIPC," Deer said.

He called on the Permanent Forum on Indigenous Issues PFII to "adopt a standardized interpretation of FPIC" that's "consistent with human-rights standards"; address unequal bargaining power between state and third-party developers and indigenous peoples; urge states to uphold their international obligations and to "fully respect FPIC, in regard to all customary rights of Indigenous peoples to genetic resources without discrimination. Provisions in the Nagoya Protocol that could serve to dispossess Indigenous peoples of such resources lack validity and require urgent redress."

Lastly, Deer said, states must be urged to adopt interim measures to guard indigenous rights, including FPIC.

"Too often, such rights are violated while Indigenous peoples are engaging in their own decision-making process and in negotiations on the development project being proposed," Deer concluded.

---

FPIC: The ‘C' stands for ‘Consent'

Joint Statement of: Assembly of First Nations, Chiefs of Ontario, Grand Council of the Crees (Eeyou Istchee), First Nations Summit, Haudenosaunee of Kanehsatà:ke, Innu Council of Nitassinan, Indigenous World Association, International Organization of Indigenous Resource Development (IOIRD), Louis Bull Cree Nation, Montana Cree Nation, National Association of Friendship Centres, Native Women's Association of Canada, Samson Cree Nation, Union of BC Indian Chiefs, Amnesty International, First Peoples Human Rights Coalition, Canadian Friends Service Committee (Quakers), Amnistie Internationale, Hawai'i Institute for Human Rights, KAIROS: Canadian Ecumenical Justice Initiatives

Permanent Forum on Indigenous Issues Tenth session

New York, 16-27 May 2011

Agenda Item 3c: Free, prior and informed consent

Speaker: Kenneth Deer (The joint submission below was delivered to the Permanent Forum on Indigenous Issues by Kenneth Deer, 17 May 2011).

Free, prior and informed consent (FPIC) is clearly established as an international human rights norm. The right of Indigenous peoples to grant or withhold approval for actions affecting their rights is an integral element of the right of self-determination. Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) reflects the right of self-determination in common article 1 of the two human rights Covenants.

Free, prior and informed consent is also an indispensable safeguard for other rights of Indigenous peoples. Such rights are routinely violated when Indigenous peoples are excluded from or marginalized in the decision making process.

The right of FPIC has been repeatedly applied by United Nations treaty bodies and by regional human rights commissions and courts, so as to fulfill state obligations under international law. In its March 2011 report, the Human Rights Committee urged Togo to take measures so as to "ensure that Indigenous peoples could effectively exercise their right to free, prior and informed consent" [unofficial translation].

General Recommendation XXIII of the UN Committee on the Elimination of Racial Discrimination (CERD) calls on state parties to ensure that, in regard to members of Indigenous peoples, ‘no decisions directly relating to their rights and interests are taken without their informed consent'.

FPIC is included in four articles of the UN Declaration, (arts. 11.2, 19, 28, 32.2). The Declaration also affirms that violation of the right of free, prior and consent requires effective redress (arts. 11.2, 28.1 and 32.3).

The right of FPIC has far-ranging significance for Indigenous peoples, especially in the context of human rights and climate change. These issues are generally key considerations, particularly where large-scale developments are concerned.

Need to safeguard FPIC

Our organizations are deeply concerned by the continued opposition to FPIC by some states. There appear to be increasing efforts to undermine or roll back this vital human rights standard.

At the time of its endorsement of the UN Declaration in December 2010, the United States indicated that FPIC calls for ‘a process of meaningful consultation with tribal leaders, but not necessarily ... agreement ..., before the actions addressed in those consultations are taken.' In May 2011, at the Commission on Sustainable Development's Working Group on Mining, Canada, Australia, New Zealand and the United States asked for deletion of ‘free, prior and informed consent' regarding indigenous and local communities.

In Canada, where many of our organizations are from, a number of large banks have recently trumpeted their adoption of FPIC, when what they really mean is free, prior and informed consultation. This raises serious concerns that momentum toward implementation of free, prior and informed consent may be lost or diverted by the misleading use of the inadequate standard of free, prior and informed consultation.

Replacing the established standard of consent with the lesser standard of consultation would mean that at the conclusion of such a process taking place, governments or corporations would continue to be free to act in their own interests and the interests of other powerful sectors of society - while unilaterally and arbitrarily ignoring the decision taken by Indigenous peoples. This is contrary to the very purpose of FPIC.

Positive steps towards FPIC

The International Finance Corporation (IFC) - part of the World Bank Group has approved a revised version of the Sustainability Framework that it uses to guide investment decisions. These decisions, which often concern large-scale projects, have the potential for profoundly detrimental impacts on the identities, cultures and well-being of Indigenous peoples.

In the past, the IFC claimed that it did not need to bring its policies into line with the standard of free, prior and informed consent, because free, prior and informed consultation was ‘functionally equivalent' to this human rights norm. Such an approach still exists in the latest version, with some changes , and is now being called ‘Informed Consultation and Participation'.

On May 12, 2011, IFC announced: ‘For projects with potential significant adverse impacts on indigenous peoples, IFC has adopted the principle of ‘Free, Prior, and Informed Consent' informed by the 2007 United Nations Declaration on the Rights of Indigenous Peoples.' While improvements in IFC's Sustainability Framework are still required, the positive steps taken on FPIC should be acknowledged and built upon.

In the development context, FPIC should not apply to a fixed list of ‘special circumstances' - even if such lists may be broadly stated. While such IFC lists may serve to provide useful examples, there could still be substantial impacts on Indigenous peoples in other situations that require their consent.

In Haida Nation, Canada's highest court ruled in 2004 that the nature and scope of the Crown's duty to consult would require the ‘full consent of [the] aboriginal nation ‘on very serious issues'. To date, the government of Canada has evaded addressing this criterion of ‘consent' and focused on those potential consequences that are less serious.

In March 2011, the government of Canada issued its ‘Updated Guidelines for Federal Officials to Fulfill the Duty to Consult'. These Guidelines fail to consider the right of Indigenous peoples to FPIC, except to indicate Canada's concern when such consent is ‘interpreted as a veto'.

It is deeply troubling that the Canadian government would selectively ignore serious situations that require Indigenous consent under Canada's Constitution. The UN General Assembly has repeatedly emphasized the ‘importance of non-selectivity, impartiality and objectivity', when addressing human rights.

Canada's Guidelines also declare that the UN Declaration ‘does not alter the legal duty to consult' in Canada. This ignores the rule of law. The Supreme Court of Canada has repeatedly ruled that declarations and other international instruments are ‘relevant and persuasive sources for interpretation' of human rights in the domestic context.

In the Nagoya Protocol on access and benefit sharing of genetic resources, only ‘established' rights - and not other rights based on customary use - appear to receive some protection. As CERD has concluded, such kinds of distinctions are discriminatory. They serve to dispossess Indigenous peoples of their rights relating to genetic resources, including FPIC.

We recommend the following measures to the Permanent Forum on Indigenous Issues (PFII), in relation to ‘free, prior and informed consent' of Indigenous peoples. These recommendations include that the PFII:

1. Urge states and specialized agencies to adopt a standardized interpretation of FPIC, consistent with international human rights standards.

2. Highlight the need to address the unequal bargaining power generally existing between state/third party developers and Indigenous peoples, by ensuring that the peoples concerned have the necessary financial, technical and other assistance to fully and effectively participate at all stages. States have a role and responsibility to ensure just and democratic processes, consistent with the principle of sustainable and equitable development.

3. Urge states that are undermining FPIC to uphold their international obligations, so as to ensure full respect and implementation of all Indigenous peoples' rights, including those in Treaties with such peoples. In this context, the UN Declaration on the Rights of Indigenous Peoples is inseparable from states' obligations under diverse treaties.

4. Urge states to fully respect FPIC, in regard to all customary rights of Indigenous peoples to genetic resources without discrimination. Provisions in the Nagoya Protocol that could serve to dispossess Indigenous peoples of such resources lack validity and require urgent redress.

5. Urge states, in conjunction with Indigenous peoples, to adopt interim measures so that FPIC and other Indigenous rights are safeguarded. Too often, such rights are violated while Indigenous peoples are engaging in their own decision-making process and in negotiations on the development project being proposed.

 

---

Joint Statement on Continuous violations of the principle of free, prior and informed consent in the context of UNESCO's World Heritage Convention

UN Permanent Forum on Indigenous Issues, Tenth Session

New York, 16-27 May 2011

Agenda Item 3C: Follow-up to the recommendations of the Permanent Forum: free, prior and informed consent

Submitted by: Endorois Welfare Council, Kenya; Na Koa Ikaika KaLahui Hawaii; Association OKANI, Cameroon; Ngorongoro NGOs Network (NGONET) Tanzania; Budakattu Krishikara Sangha, Karnataka, Western Ghats, India (representing Indigenous peoples of Pushpagiri Wildlife Sanctuary, Brahmagiri Wildlife Sanctuary, Talacauvery Wildlife Sanctuary, Padinalknad Reserved Forest, Kerti Reserved Forest); Centre for Minority Rights Development Kenya (CEMIRIDE); Mainyoito Pastoralist Integrated Development (MPIDO), Kenya; Pastoralists Indigenous Non-Govermental Organisations Forum (PINGOs Forum) Tanzania; Aha Kiole Council of Hawaii; Centre pour l'Education, la Formation et l'Appui aux Initiatives de Développement au Cameroun (CEFAID); Indigenous Peoples of Africa Co-ordinating Committee (IPACC); Pothigaimalai Adivasi Kanikkaran Samuthaya Munnetra Sangam (Kalakkad Mundanthurai Tiger Reserve, Western Ghats, India); Tanzania Network for Indigenous Pastoralists (TANIPE); Yiaku Peoples Association, Kenya; The Koani Foundation, Hawaii; Ke Aupuni o Hawaii; Adivasi Gothrajaan Sabha, Kerala (Aralam Wildlife Sanctuary, Western Ghats, India); Adivasi-Dalit Land Rights Committee, Kerala; Adivasi Gothra Mahasabha, Kerala, India (representing Shendurney Wildlife Sanctuary, Neyyar Wildlife Sanctuary, Peppara Wildlife Sanctuary, Kulathupuzha Range, Palode Range, Ranni Forest Division, Konni Forest Division, Achankovil Forest Division, Mankulam Range, Chinnar Wildlife Sanctuary, Silent Valley National Park, Attapadi Reserved Forest, Aralam Wildlife Sanctuary); Pastoralists and Hunter Gatherers Ethnic Minorities Network, Kenya; Unissons nous pour la Promotion des Batwa (UNIPROBA) Burundi; Kerala Girivarga Kanikkar Sangham (Shendurney Wildlife Sanctuary, Neyyar Wildlife Sanctuary, Peppara Wildlife Sanctuary, Kulathupuzha Range, Palode Range); Indian Confederation of Indigenous and Tribal Peoples (ICITP); Adivasi Ekta Parishad (India); United Peoples' Federation of Assam (UPFA) India; All Dimasa Student's Union (ADSU) India; All Barman Kachari Students' Union (ABKSU) India; Borosa Onsai Afat (BOA) India; Saami Council; Asia Indigenous Peoples Pact (AIPP); Cordillera Peoples Alliance, Philippines; /XAM Association of South Africa; Rapa Nui Parliament; Network of the Indigenous Peoples-Solomons (NIPS), Solomon Islands; International Alliance of Indigenous Peoples of the Tropical Forests; Asociación Indígena Ambiental, Panama; International Organization of Indigenous Resource Development (IOIRD); Samson Cree Nation; Ermineskin Cree Nation; Montana Cree Nation; Louis Bull Cree Nation; Foundation for Aboriginal & Islander Research Action (FAIRA) Australia; The Aldet Centre-Saint Lucia; Self-governing Administrative Mechanism of the Indigenous People (Bethechilokono) of Saint Lucia (SAM-BGC); Caribbean Antilles Indigenous Peoples Caucus & The Diaspora (CAIPCD); Genetic Resources, Traditional Knowledge and Folklore International (GRTKF Int.); Fundación para la Promoción del Conocimiento Indígena (FPCI), Panama; Tebtebba Foundation, Philippines; Russian Association of Indigenous Peoples of the North (RAIPON); Unión Nacional de Abogados y Abogadas Indígenas de Panama (UNAIPA); Centro de Asistencia Legal Popular (CEALP), Panama; Organización Indígena Kus-Kurá S. C., Costa Rica; Kirat Welfare Society, Nepal; First Peoples Human Rights Coalition; Indigenous Environmental Network (IEN); Indigenous World Association; American Indian Law Alliance; International Indian Treaty Council; Instituto Peruano de Educación en Derechos Humanos y la Paz (IPEDEHP); TARA-Ping Pu, Taiwan; TIMC (Takao Indigenous Makatao Council), Taiwan; Union of British Columbia Indian Chiefs; Centro de Estudios Mapuche para el Desarrollo de los Pueblos Indígenas, Chile; Azkintuwe - El Periódico del País Mapuche, Chile; GEMA ALAM West Nusa Tenggara, Indonesia; FIMI North America (International Indigenous Women's Forum); Innu Takuaikan Uashat Mak Mani-Utenam; Earth Peoples; Netherlands Centre for Indigenous Peoples (NCIV); Hawai'i Institute for Human Rights; Society for Threatened Peoples International; Canadian Friends Service Committee (Quakers); Forest Peoples Programme; International Work Group for Indigenous Affairs (IWGIA).

Introduction

1. We would like to again bring to the attention of the Permanent Forum our serious concern about the continuous and ongoing disrespect of the principle of free, prior and informed consent by UNESCO's World Heritage Committee when it designates sites in Indigenous peoples' territories as "World Heritage sites".

2. This issue has already been brought to the attention of the Permanent Forum on several occasions, by Indigenous peoples and organizations from many different parts of the world.

3. There are numerous examples of Indigenous sites on the World Heritage List that have been inscribed without the free, prior and informed consent of the Indigenous peoples concerned. In many cases Indigenous peoples were not even consulted when their territories were designated as World Heritage sites, although this designation can have far-reaching consequences for their lives and human rights, their ability to carry out their subsistence activities, and their ability to freely pursue their economic, social and cultural development in accordance with their right of self-determination.

4. The practice of the World Heritage Committee is inconsistent with the provisions of the UN Declaration on the Rights of Indigenous Peoples, the Programme of Action for the Second International Decade of the World's Indigenous People, the United Nations Development Group's Guidelines on Indigenous Peoples' Issues, the comments and concluding observations of the UN human rights treaty monitoring bodies, the views of the UN Special Rapporteur on the rights of indigenous peoples, the Resolutions of the 4th World Conservation Congress (Barcelona, 2008), and the recommendations of the Permanent Forum on Indigenous Issues.8

5. It is also inconsistent with UNESCO's objective to integrate a human rights-based approach into all of its programmes and activities. It contrasts with the practice of UNESCO's Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, which has adopted Operational Directives ensuring that elements can only be inscribed on UNESCO's lists of intangible cultural heritage if the free, prior and informed consent of the communities and groups concerned has been obtained.

6. Last year, at the World Heritage Committee's 34th Session in Brasilia (25 July - 3 August 2010), the Committee inscribed two sites on the World Heritage List although questions had been raised regarding Indigenous peoples' participation in the nomination processes and their free, prior and informed consent: the Northwest Hawaiian Islands Marine Monument ("Papaha-naumokua-kea Marine National Monument") and the Ngorongoro Conservation Area in Tanzania. The latter was re-inscribed as a cultural World Heritage site, because of its significance as an archaeological site, not because of the significance of the Maasai culture. We are concerned that the Committee's recognition of only the archaeological values, and not the living cultural values of the Indigenous residents, may exacerbate the already existing imbalances in the management framework for the Ngorongoro Conservation Area and lead to additional restrictions on the livelihoods of the Indigenous residents and further infringements on their rights.

7. This year, at its upcoming 35th Session in Paris (19-29 June 2011), the World Heritage Committee will be considering several nominations of sites that are located in Indigenous peoples' territories. These include (among other sites):- "Western Ghats" (India); - "Trinational de la Sangha" (Republic of Congo / Cameroon / Central African Republic); - "Kenya Lake System in the Great Rift Valley" (Kenya).

All three of the mentioned sites are nominated under natural World Heritage criteria alone, without giving due consideration to the Indigenous cultural values connected to these areas and Indigenous peoples' roles as stewards of these places. Moreover, all of the mentioned nominations were prepared without meaningful involvement and consultation of the Indigenous peoples concerned and without obtaining their free, prior and informed consent.

Recommendations

We urge the Permanent Forum to call on the World Heritage Committee:

a) to defer all World Heritage nominations of sites in Indigenous peoples' territories if it cannot be ensured that the Indigenous peoples have been adequately consulted and involved and that their free, prior and informed consent has been obtained;

b) to defer the nominations of "Western Ghats", "Trinational de la Sangha" and "Kenya Lake System in the Great Rift Valley", and call on the respective State parties to consult and collaborate with the Indigenous peoples concerned, in order to ensure that their values and needs are reflected in the nomination documents and management plans and to obtain their free, prior and informed consent;

c) to endorse the UN Declaration on the Rights of Indigenous Peoples and use it as the basic reference framework when making decisions about World Heritage sites in Indigenous territories, together with the UNDG Guidelines on Indigenous Peoples' Issues;

d) to immediately convene a Working Group of experts on Indigenous peoples' issues, with a mandate to draft an overarching policy on Indigenous peoples and to recommend changes to the Operational Guidelines and other appropriate steps to ensure that the implementation of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous Peoples. The Working Group should include representatives of the Permanent Forum, the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), the Special Rapporteur on the rights of indigenous peoples, representatives of Indigenous peoples from World Heritage areas, TILCEPA, and others.

e) to establish an Indigenous advisory body which should be involved in the evaluation of all nominated properties that are situated in the territories of Indigenous peoples and in monitoring the conservation and management of such World Heritage properties.

We also strongly urge the Permanent Forum to send a representative to the upcoming 35th session of the World Heritage Committee in Paris (19-29 June 2011), in order to convey these recommendations and concerns to the Committee.

---

UNPO Members Speak Out At Event On Resource Extraction

Unrepresented Nations and Peoples Organisation

17 May 2011

Held during the 10th Session of the United Nations Permanent Forum on Indigenous Issues (UNPFII), this event addressed contentious issues surrounding the development of energy resources in indigenous regions.

The extraction of global resources has grown more or less steadily over the past 25 years. The expanding population, expected to reach 9 billion by 2050, places increasing demands on food, water, energy and land resources. The effect of the increasing use of these resources on the earth's climate and environment is a frequent topic of discussion in spaces ranging from the centers of international power to popular media outlets. However, the effect of the development and extraction of valuable resources on the lives of indigenous peoples in many regions of the world is frequently absent from such conversations.

In the context of indigenous populations' systematic exclusion from political and economic power, how can indigenous people assert their rights? This event, co-hosted by UNPO and Society for Threatened Peoples, highlighted some of the major issues facing indigenous populations in relation to the extraction of natural resources on their lands. It also explored the reasons why actions to oppose such extraction projects are often unsuccessful, and attempted to outline what can be done to hold governments and corporations accountable to international standards of human rights.

Jill K. Carino, Cordillera Peoples Alliance Vice-Chairperson for External Affairs, opened the event by discussing the experience of the indigenous Ibaloi and Kankanaey people of Benguet province, Cordillera Region Philippines with mining and dam projects. Ms. Carino outlined the serious impacts that these projects have had on the land and water of the people.

Karim Abdian, Executive Director of the Ahwaz Human Rights Organization followed by discussing the exploitation of the vast oil resources of Al-Ahwaz (Khuzestan) province by the Iranian regime. Mr. Abdian highlighted the fact that while Ahwazi ancestral lands produce over 4.5 million barrels of oil daily- 90% of total Iranian oil production- indigenous Ahwazi-Arabs live in abject poverty and receive no part of the billions of dollars in annual revenue generated by this resource. He brought to light the systematic political exclusion of the Awazi Arabs and their resulting absence from Iranian governance structures, including those governing the extraction of resources and distribution of benefits.

Hector Huertas of the National Union of Indigenous Lawyers of Panama (Kuna Yala) and Chair of the Indigenous Caucus of the Organization of American States (OAS) provided his perspective on some possible ways forward. Mr. Huertas presented a legal overview of international complaint procedures, focusing particularly on the OAS and UN systems.

Following the main presentations there was time for questions and discussion, leading to a lively exchange about building effective indigenous movements to oppose resource development projects which violate their rights, possible opportunities for advocacy initiatives within the international system and mechanisms for indigenous recourse in cases of past or ongoing harm and rights violations.

* Ms. Azelene Kaingang was also scheduled to take part in the event, presenting the case of indigenous resistance to Brazil's Belo Monte Dam. However, Brazil blocked this prominent human rights advocate from attending the UNPFII. Ms. Kaingang was expected to address Brazil's "legal missteps surrounding the hugely controversial hydroelectric project" (Earth Peoples Brazil Bars a Critic from UN Permanent Forum on Indigenous Issues).