Free, Prior & Informed Consent and the Importance of E-Tech’s Work

Peter Kostishack, 2014

The concept of Free Prior and Informed Consent (FPIC) is increasingly common in international law. The standard is a critical component of the United Nations Declaration of the Rights of Indigenous Peoples. It has been invoked in key jurisprudence of the InterAmerican Court on Human Rights, cited in the rulings in favor of the Mayangna Awas Tingni, Nicaragua, Saramakan Maroons of Suriname and the Kichwa of Sarayaku, Ecuador. Various iterations of the concept are found in the Basel and Rotterdam Conventions, Convention 169 of the ILO, and it has been agreed to by parties to the Convention on Biological Diversity with respect to traditional knowledge. It has been cited by the World Commission on Dams and the World Bank’s Extractive Industries Review, and is part of the International Finance Corporation’s performance standards.

It is well recognized that FPIC is a significant improvement over the concept of prior consultation, which in practice means that an outside entity such as a government, corporation, or multilateral could hold a workshop in an indigenous territory before the bulldozers roll in.

Prior consultation can be seen as a sort of gate that outsiders need to pass through in order to gain access to a territory and undermine other human rights–rights to home, livelihood, environment, and health–and consent is it’s latch.

It’s a gate with a latch, but it’s still a gate that can be and continues to be opened all the time, as evidenced by the rapid expansion of extractive industry and large scale infrastructure on indigenous peoples territories worldwide.

In fact FPIC is really a gate with a latch and three faulty hinges–the concepts of free, prior, and informed–that are ill defined and difficult to apply.

How do we determine that decisions about territory were made free of pressure? How do we define prior? Before the oil company enters the territory, before the government leases the concession, before the hydrocarbon law is developed?

And what constitutes informed? Who generates and provides the information? What happens when people really don’t have access to the information needed to make decisions about their fundamental rights?

It is each of these hinges that oil and mining companies are all actively exploiting. There’s a good reason Newmont mining and the World Bank create working groups to develop FPIC protocols. Everyone wants to know how to get through the gate and carry on business as usual.

Years ago I worked with Machiguenga communities in the Peruvian Amazon who were dealing with international oil companies that were initiating development of the Camisea natural gas fields. What I saw was a drastically unlevel playing field in almost every way. These were days when Chevron secured the right from community leaders to do seismic testing in exchange for soccer jerseys and school supplies. Fundamental rights were violated regularly, negotiations were one sided, and all of the information was in the hands of companies and a handful of government officials who saw it as their job to protect the company rights to develop the resource.

But perhaps where the playing field was most unlevel was with respect to technical knowledge about the environmental and health impacts of hydrocarbon development. Five volume environmental management plans were delivered by motorboat to communities who had few residents who could read Spanish, let alone evaluate if they measured up to industry best practices. Government agencies were of no help because they were designed to facilitate oil development and routinely accepted EIAs that had been recycled from other oil projects with geographic names changed with find/replace (we know this in part because they didn’t always catch the river names).

Frankly, in the 20 or so years since, not a lot has changed except for the pace of oil development. More than 65% of the Peruvian and Ecuadorian Amazon is zoned for oil and gas development and large scale mining is moving into indigenous territories and critical ecosystems such as the Cordillera del Condor.

Something that has improved is that indigenous peoples now have greater access to legal, advocacy, and media support through their own representative organizations and thanks to some of the excellent support organizations, some of them present here like Amazon Watch, Cultural Survival, International Rivers, Pachamama Alliance, RAN… communities have a much greater network of international support to help them exercise their rights.

However the technical and scientific expertise, that ability to evaluate impacts and to confront industry on its own technical terms is largely unmet. We are completely out gunned by the industry.