Free, Prior and Informed Consent: Making FPIC work for forests and peoples

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The shorthand phrase ‘free, prior and informed consent,’ and the acronym FPIC, refers to the right of indigenous peoples to give or withhold their free, prior and informed consent to proposed measures that will affect them. The right is affirmed in the UN Declaration on the Rights of Indigenous Peoples and in the jurisprudence of the international human rights treaty bodies including the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights. While the right itself is clearly affirmed, the practicalities for non-State parties to adhere to it are less clear and are to be the focus of a new dialogue stream of The Forests Dialogue (TFD). Agreed procedures for the application of the principle of FPIC are still evolving and in any case should vary according to legal and customary norms. Whereas in some countries, legal mechanisms for the recognition of indigenous rights are well developed in others there is a lack of clarity about the extent of the areas over which the right to FPIC should be exercised, owing to a lack of precision about which areas are subject to indigenous rights and / or because countries have plural legal regimes. The forthcoming TFD dialogue stream will aim to develop answers to such challenges.

FPIC has already emerged as a core theme in several of TFD’s prior dialogue streams. The issue first came to the fore in TFD’s dialogue stream on Intensively Managed Planted Forests, which in reviewing experiences in Indonesia, China and Brazil found that plantations often expand onto the customary lands of indigenous peoples’ and local communities. Due to a lack of statutory recognition of these peoples’ rights, serious land conflicts have become common. The multi-stakeholder dialogue stream concluded that companies should recognise customary rights in land and ensure that plantations do not expand onto such peoples’ customary lands without the free, prior and informed consent of the customary owners