FPIC: Turning Rights Into Reality

issues to Consider in implementing the right

to Free, Prior, and informed Consent

Turning righTsinTo realiTy

May 2013

FP

IC

Contents:

Introduction

Background 1-2

Analysis 3-14

‣ scope

• Who is entitled to FPiC? 3

• identifying indigenous

lands 3

• Defining Covered activities 4-5

• Defining entities That

Must Comply with FPiC 6

• identifying appropriate

indigenous representatives 6

‣ What should Consultation look like?

• When should indigenous

involvement Begin? 7

• length of Consultations 7

• information sharing and

other Consultation items 8-9

• ensuring no Coercion Takes

Place 10

‣ Concluding the negotiation Process 11-12

‣ Monitoring and implementation 13-14

Overall Assessment 15-17

Conclusion 18

authors: Moneen nasmith,

Marina Campos, Christine halvorson

Contributors: Mark Camp, Tom Bewick

Jessie Cherofsky, laura garbes

Design: agnes Portalewska

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Under increasingly-recognized international prin-ciples of human and indigenous rights law, in-digenous peoples are entitled to grant or withholdtheir free, prior and informed consent (FPIC) inrelation to a program, development project orlegislation that could affect their people and/ortheir territories. This right is recognized by a va-riety of international instruments, most explicitlyin the Declaration of the Rights of IndigenousPeoples (UNDRIP). International entities, as wellas national and regional governments, haveadopted treaties, guidelines, protocols and otherdocuments that recognize at least some of the in-digenous rights arising from FPIC. FPIC is notintended to be an end in itself, nor a stand-aloneprocedural right, but a derivative of many sub-stantive indigenous rights that are often affectedby development projects and land-use legislation.FPIC is meant to act as a safeguard of rights suchas the right to self-determination, participation,non-discrimination, property, food, health andculture. The following is an overview and analysis of someexisting FPIC materials and legal standards,which vary and continue to evolve. This docu-ment does not pretend to be an exhaustive surveyof all existing FPIC protocols and guidelines, nora critique of how they have been implemented onthe ground. Rather, the aim of this report is toprovide an overview of issues that can arise whilecreating and implementing an FPIC protocol andexamples of how existing documents have ad-dressed these issues. The report pays particularattention to the structure and content of the con-sultations that must be carried out in order forFPIC rights to be exercised. Article 19 of the UN-DRIP prescribes, “States shall consult and cooper-ate in good faith with the indigenous peoplesconcerned through their own representative insti-tutions in order to obtain their free, prior and in-formed consent before adopting andimplementing legislative or administrative meas-ures that may affect them.” It is through consulta-tion that the communication of ideas andconcerns takes place which leads to the ultimatedecision to grant or withhold consent. Addition-ally, several of the protocols discussed provide forconsultation but not consent; thus, the adequacy

and components of a consultation process areparticularly important.The analysis here is not prescriptive; rather it ana-lyzes some of the main questions that must be ad-dressed, whether a community is developing anFPIC protocol of its own or whether it’s begin-ning to engage in a consultation about a givenproject or piece of legislation. The document ex-amines how various FPIC protocols and guide-lines have addressed these questions, and whatyou may want to consider as you think themthrough. After a brief summary of a handful ofprotocols and guidelines, the document looks ateach question in turn, considering the pros andcons of how each protocol has addressed them. This document originated in a request from theAmerindian Peoples Association in Guyana,which was considering developing community-based FPIC protocols. Rainforest Foundation USLegal Fellow Moneen Nasmith developed a firstversion of the document in 2011 to help provideguidance based on some of the existing FPICguidelines at that time. We realized, however,that the document could be useful to other com-munities facing similar issues, and decided tobroaden the scope. The Rainforest FoundationUS and Cultural Survival have since partnered tofurther develop and distribute the document,hoping that it will be useful to indigenous com-munities and their allies. Things are rapidly evolving. This document wasfirst drafted in the summer of 2011, several newlaws have passed; guidelines have been furtherdeveloped; and consultation processes have beenundertaken. We have updated it since, but thedocument will perforce be dated soon. We there-fore encourage submission of FPIC treaties, pro-tocols, guidelines, etc. that we may have missed,or that are yet being developed. Any such mate-rials can be sent to [email protected] and/[email protected]. It is our hope that we’ll be able topublish an update that both includes more mate-rials and addresses other questions as they arise.We hope you find this document useful and en-courage your comments and feedback.

introduction

Rainforest Foundation US Cultural SurvivalMay 2013

Turning rights into reality:issues to Consider in

implementing the right to Free,

Prior, and informed Consent

The obligation to provide indigenous peoples with the opportu-nity to give their free, prior and informed consent to activitiesand legislation that may impact their lands and/or populationsstems from a variety of sources. FPIC, grounded in indigenouspeoples’ right to their lands, territories, resources, and self-deter-mination, has been formally recognized by the UNDRIP, theInter-American Court of Human Rights (IACHR), and constitu-tional courts in many countries. Thus, FPIC is increasingly con-sidered to be customary international law even in countrieswhere the right is not specifically enumerated or which have notratified applicable conventions.(1) As momentum recognizingFPIC and the rights it is derived from continues to build, it willbecome legally binding in all countries.(2)

FPIC is also provided for in other international conventions, anotable one being International Labour Organization Convention169 (ILO 169). Article 6 of ILO 169 requires that indigenouspeoples be consulted on measures that directly affect them,(3)while Article 7 “recognizes indigenous peoples’ right to decidetheir own priorities for the process of development,” and to “exer-cise control to the extent possible, over their own economic, so-cial, and cultural development.”(4) The ILO has also issued aguide to provide a practical tool for implementing the FPICrights contained in the Convention. Although the ILO Conven-tion has not been ratified by every country, the tools it providesfor implementing FPIC are based on generally recognized inter-national legal principles of participation and self-determination.It is important to note that internationally protected rights toFPIC are most vital when domestic statutory law is inadequateand where local governance and enforcement is weak. In thesecontexts, the exercise of the right to FPIC is meant to ensure thatall indigenous rights are protected.

The Convention on Biological Diversity (CBD) is another inter-national treaty that recognizes and accepts a version of FPIC byproviding that, subject to its national legislation, a party should“respect, preserve and maintain knowledge, innovations andpractices of indigenous and local communities embodying tradi-tional lifestyles relevant for the conservation and sustainable useof biological diversity and promote their wider application withthe approval and involvement of the holders of such knowledge,innovations and practices and encourage the equitable sharing ofthe benefits arising from the utilization of such knowledge, inno-vations and practices.”(5) Almost 200 countries have signed andratified the CBD and are thus bound by this provision. The Sec-retariat of the CBD also adopted voluntary guidelines to assistparties in incorporating “cultural, environmental and social con-siderations of indigenous and local communities into new or ex-isting impact-assessment procedures.”(6) These guidelinesprovide an outline of the steps that should be included in any en-vironmental assessment being conducted when developments aretaking place on or are likely to impact indigenous lands or watersthat are related to biodiversity.

A number of countries have passed laws or have jurisprudencethat reference FPIC rights in some form. For example, the Con-stitution of Venezuela contains a provision requiring that nativecommunities be consulted and provided with information prior

to state exploitation of natural resources in native habitats.(7) TheConstitutional Court of Colombia has issued several rulings or-dering the suspension of development projects, or declaring legis-lation unconstitutional because of a lack of prior consultationwith indigenous peoples.(8) However, few countries have adoptedmeasures, protocols or guidelines that establish how FPIC willwork in practice. The Philippines and Peru have both passed leg-islation requiring FPIC. (9) (10) The Philippines has passed anadministrative order detailing the steps that must be followed toensure this right.(11) Nevertheless, as will be discussed below,there have been significant problems implementing these meas-ures. A limited number of indigenous groups have also devel-oped their own protocols, including the Guna of Panama and theindigenous peoples of Paraguay.

In addition to national and international laws, FPIC protocolsand guidelines have been incorporated into the policies of a num-ber of intergovernmental organizations and financial institutions,such as the World Bank and the UN, to ensure that their pro-grams and development projects respect indigenous FPIC rights.Such standards often apply to governments, companies, and otherentities who are engaged in the institution’s development pro-grams. For example, the World Bank’s International FinanceCorporation (IFC) has developed Performance Standards for In-digenous Peoples that include the requirement that World Bankclients engage in prior consultation with indigenous peoples.(12)Similarly, various UN programs incorporate FPIC. The UN-REDD program has drafted a set of FPIC guidelines to be fol-lowed in the context of designing and implementing nationalREDD programs.(13) The Inter-American Development Bankand the European Bank for Reconstruction and Developmenthave also developed FPIC guidelines in relation to projects thatthey finance or co-finance.

Finally, given the evolving legal norms and potential impact ontheir reputations, certain companies and industry groups havevoluntarily begun to incorporate FPIC principles into their inter-nal corporate policies and procedures. These include the Round-table on Sustainable Palm Oil and certain companies within themining sector. (14) The World Resources Institute published areport in 2007 that makes a business case for FPIC, arguing thatextractive companies incur greater long-term costs if they operatewithout the consent of affected communities.(15)

Although the number of FPIC protocols is limited, this reportwill draw from certain examples (16) to illustrate the provisionsincluded in such documents and will analyze the strengths andweaknesses of these protocols. It will also provide an assessment,where available, of how these protocols have worked to protectindigenous peoples’ FPIC rights.

Turning Rights into Reality: Issues to Consider in Implementing the Right to Free, Prior, and Informed Consent Page 1

Background

Panama

The examples that will be discussed are :‣ Canada: The Federal Government of Canada has adopted guide-lines for Aboriginal Consultation and Accommodation but does notprovide First Nations with a veto.

‣ Canadian Province of British Columbia: The provincial govern-ment of BC adopted “The New Relationship” program in 2005 thatcontemplates establishing processes and institutions for shared deci-sion-making, including allowing aboriginal communities to make de-cisions as to the use of their land.(17) This has resulted in the signingof multiple agreements between various First Nations bands and thegovernment of British Columbia establishing guidelines for consulta-tion and revenue-sharing over particular natural resources.(18) Be-cause many of the agreements with various bands are quite similar, thediscussion below will focus on the agreement with the KitsumkalumIndian Band concerning Forest & Range.

‣ Norway: The Norwegian government adopted procedures for con-sulting with the Sami Parliament, the representative body of the in-digenous peoples of Norway.

‣ Panama: The Panamanian Government has not passed an FPIC lawor protocol. However, the Guna Yala, an indigenous group living onthe Caribbean coast of Panama, have passed a Fundamental Law thatrequires that they be consulted and provide consent to any resourceexploitation on their land. The Panamanian Government has not offi-cially recognized the Fundamental Law but appears to have acknowl-edged the ability of the Guna’s General Congress to refuse to allowcertain activities to take place on their land. (19)

‣ Paraguay: Paraguay’s indigenous peoples have developed a pro-posed protocol to guide consultation and consent on all projects thataffect the territories, lands, natural resources and rights of indigenouspeoples in Paraguay. (20) The government of Paraguay has indicatedthat they may adopt this protocol.

‣ Peru: The Peruvian Congress passed Law 29785, the Law of PriorConsultation to Indigenous and Native Peoples, as Recognized in theConvention 169 of the International Labor Organization. The Presi-dent of Peru, Ollanta Humala, signed the Consultation Law in Sep-tember 2011. The enabling legislation for the law, which was passed in2012, has been hotly debated in Peru, both in terms of process andcontent. Indigenous organizations have criticized the scope of the law,which, while providing for consultation, does not provide for ‘consent’.This, according to indigenous activists, does not allow for affectedcommunities to withdraw consent or veto a proposed project. Addi-tionally, there is widespread debate over who has the right to consulta-tion, and that this lies solely with the government’s publishing of a“database” of indigenous peoples. (21)

‣ The Philippines: The Filipino government passed the IndigenousPeoples Rights Act of 1997, which provides indigenous peoples withthe right to self-determination, to participate in decision-making, andto determine and decide development priorities. (22) The NationalCommission on Indigenous Peoples also adopted FPIC guidelines.(23)

‣ IFC: The World Bank’s IFC has adopted performance standards thatapply to their investment projects that impact indigenous peoples.

‣ ILO: The ILO Convention No. 169 requires states who have ratifiedthe Convention not Guyana to consult with indigenous peoples on ac-tivities that could affect them, obtain their consent for relocation ofindigenous communities, and compensate indigenous peoples for neg-ative impacts of resource exploitation. The ILO has adopted guide-lines to assist parties in implementing FPIC in practice.

‣ CBD: The Convention on Biological Diversity recognizes the impor-tance of respecting indigenous peoples. The Secretariat of the CBDadopted the Akwé: Kon voluntary guidelines to assist with the conductof cultural, environmental and social impacts assessments under theCBD.

‣ UN-REDD Programme: The UNDP committee on stakeholder en-gagement has developed operational guidance for the REDD initiative.This paper examines the final draft dated January 2013. (24)

‣UN Development Group: The UNDG adopted Guidelines on In-digenous People’s Issues that include guidelines for UN CountryTeams to ensure the exercise of FPIC by indigenous peoples.

As the following analysis demonstrates, when crafting an FPICprotocol or guideline, numerous uncertainties and issues emerge.These include:

1) What is the scope of the FPIC protocol?This requires answering the fundamental question of who is enti-tled to FPIC. Key to this is understanding what it means to be‘affected’ or ‘impacted’ by development projects or legislation, theextent of a project’s social and environmental impacts, and whichcommunities are likely to be affected. There are varying defini-tions of what it means to be an indigenous community, and thereare always differing assessments as to the extent of a project’s im-pact. Within communities, it is also critical to define who will beconsulted. Therefore, indigenous communities must define intheir own bylaws or other community regulations what land andwhich people are entitled to FPIC, what activities are covered bythe protocol, what entities are bound to consult with and/or ob-tain consent from indigenous groups, and who are the appropri-ate indigenous representatives.

2) When and how should FPIC be applied, and what should theconsultations look like? This requires determining when in the process of implementing aproject indigenous peoples should be consulted, the appropriatelength of the consultations, the extent and form of the informa-tion to be provided to indigenous peoples, and how the exerciseof coercion will be prevented. Some FPIC guidelines require theprocess to be initiated prior to a project’s approval by a govern-ment, such as through the granting of a concession. Many indige-nous organizations argue that consultation procedures shouldcoincide with their own decision-making processes, taking intoaccount the appropriate approval processes and timeframes.

3) How should an agreement be reached?This requires specifying whether indigenous peoples have thepower to veto the proposed project and, if so, how their decisionwill be expressed. It also entails establishing procedures forreaching an agreement, as well as determining the procedures tobe used in case there is failure to reach a consensus.

4) How should the FPIC protocol be monitored?This requires adopting appropriate indicators to measure the ef-fectiveness of the processes, as well as establishing a recoursemechanism through which indigenous peoples can enforce theagreement or seek assistance if their FPIC rights are not being re-spected.


Background

Who is Entitled to FPIC?A preliminary issue lies in defining ‘indigenous’ or ‘tribal’ peo-ples, and whether a given protocol, guideline, or agreement willbe national or local in scope. The UN and ILO have elaborateddefinitions that apply globally to all indigenous peoples. In somecountries, national constitutions provide definitions of ‘indige-nous’ that articulate ethnicities, languages, and geographicalareas where indigenous rights are applicable. FPIC protocolsmay also take the form of treaties or agreements that only applyto particular groups or tribes of indigenous peoples. For exam-ple, British Columbia’s approach has been to sign treaties withindividual tribes rather than with all the First Nations in theprovince.

The choice of the appropriate scope of an FPIC protocol will de-pend on the context in which it is being drafted and applied. Formultilateral organizations such as the UN or World Bank, a pro-tocol that applies globally to all indigenous peoples may be moresuitable. At the national level, the advantage of negotiating abroader agreement may allow indigenous groups to organize col-lectively in order to leverage more political and negotiatingstrength. Another advantage is that such an agreement wouldapply equally to all indigenous groups within the country, re-gardless of size. However, allowing individual tribes to drafttheir own agreements allows for greater bottom-up participation.This may result in a protocol that is better tailored to the needsand customs of individual tribes.

Identifying Indigenous LandsBecause FPIC is often contingent on whether an activity eithertakes place or has an impact on land that is identified as indige-nous, land titling and the resolution of land disputes is critical tothe meaningful exercise of indigenous FPIC rights. The FPICprotocols/guidelines that were surveyed do not provide proce-dures for how indigenous groups should go about securingclaimed but unrecognized territories. Some guidelines, however,are worded to allow FPIC to be exercised in the absence of defin-itive indigenous land titles.

As illustrated by the examples below, an FPIC protocol may beworded expansively to cover activities that are on lands subject totitling disputes. Although resolving these issues prior to adopt-ing a protocol might be preferable, this may not be possible in allcircumstances and/or may take a long time. Rather than waitand risk having projects go forward without adequate preserva-tion of indigenous FPIC rights, it may be advisable to develop aprotocol that will cover activities on lands that are: 1) subject tounresolved indigenous claims, 2) historical indigenous domains,and/or 3) used by indigenous peoples, including seasonal orcyclical use, for their livelihoods or cultural, ceremonial, andspiritual purposes that define their identity and community. Asis the case in IFC guidelines, the protocol could also include anacknowledgment of indigenous peoples’ loss of legal attachmentor title to their traditional lands. In addition, because of the defi-ciencies of many officially-sanctioned maps, protocols shouldplace the burden on proponents of a project to make reasonableefforts to ensure that adequate due diligence is performed to de-termine the extent of indigenous lands claims and traditionalusufruct rights and patterns. There should also be a mechanismthat provides for conflict resolution and remedy.


Who is entitled to FPiC? identifying indigenous lands

‣ The Canadian Guidelines for Aboriginal

Consultation and Accommodation require

consultation when potential government

activity might adversely impact “potential

or established Aboriginal or Treaty rights”

recognized by Canada’s Constitution.

(26)

‣The Treaty between the Kitsumkalum

Band and the Government of British Co-

lumbia similarly requires consultation

when the activity impacts “claimed or as-

serted Traditional Territory.” (27)

‣The IFC guidelines take a fairly expan-

sive approach by including projects on or

that make commercial use of natural re-

sources on “lands subject to traditional

ownership and/or under customary use

by Indigenous Peoples…[or projects that]

involve commercial use of Indigenous

Peoples’ cultural resources.” (28)

• The IFC also recognizes that

while “Indigenous Peoples may not

possess legal title to these lands as

defined by national law, their use of

these lands, including seasonal or

cyclical use, for their livelihoods, or

cultural, ceremonial, and spiritual

purposes that define their identity

and community, can often be sub-

stantiated and documented.” (29)

• The IFC further defines Indige-

nous Peoples as including “groups

or communities that have lost col-

lective attachment to distinct habi-

tats or ancestral territories in the

project area, occurring within the

concerned group members’ lifetime,

because of forced severance, con-

flict, government resettlement pro-

grams, dispossession of their lands,

natural disasters, or incorporation

of such territories into an urban

area.” (30)

‣The FAPI protocol applies to activities

affecting the territories, lands, natural re-

sources, and human rights of indigenous

peoples. (31) It also states that indige-

nous peoples can be affected by an activ-

ity without having a title issued and

registered by the Paraguayan State. (32)

In addition, as part of the negotiation

process, a written agreement must be

entered into that delimits, demarcates

and titles indigenous land, where applica-

ble, prior to the indigenous peoples mak-

ing any decision on the project. (33)

‣The Peru Consultation Law instructs the

relevant state entity to identify the indige-

nous peoples to be consulted on the

basis of the content of the proposed

measure, the degree of the relationship

between the measure and the indigenous

peoples and the measure’s territorial

scope. (34)

Analysis: scope

FPIC protocols may be worded expansively to cover lands subject to titling disputes

Defining Covered ActivitiesEven with the resolution of land titling issues, attention must alsobe paid to the scope of activities that trigger FPIC rights. Amongthe examples, the scope of protocols varied significantly. Someprotocols enumerate various types of activities that trigger FPIC.

The Philippines Administrative Order applies to:• Exploration, development, exploitation and utilization ofnatural resources for commercial purposes within ancestraldomains/lands by indigenous peoples and non-indigenouspeoples alike;• Research on indigenous systems, knowledge and prac-tices, Archeological explorations;• Activities that would impinge on indigenous peoplesspiritual and religious traditions;• Program, projects and activities that would lead to thedisplacement and/or relocation of indigenous peoples;• Entry of migrants and other entities who intend to dobusiness or engage in development activities inside the an-cestral domains;• Management of protected and environmentally criticalareas, and other joint undertakings within ancestral do-mains;• Implementation of government reforestation and infra-structure projects;• Policies affecting the general welfare and the rights of in-digenous peoples;• Occupation of military or paramilitary forces or estab-lishment of military facilities within the domaina [except]when the same is made in connection with hot pursuit op-erations and the duration is not to exceed the period ofseven (7) days;• Other activities or undertaking similar or analogous tothe foregoing. (35)

The Agreement between British Columbia and the Kitsumkalumis significantly more narrow and applies only to a “decision madeby the Minister or a Delegated Decision Maker related to forestand range resources under provincial legislation…” and variousOperational Plans, which consist of certain forest and range li-cense and stewardship plans. (36)

Both approaches arguably have advantages and disadvantages. Bytaking the approach of listing specific activities, the drafters ofthe protocol can be extremely precise and make sure that the ac-tivities that are most likely to affect them are very clearly coveredby the protocol. However, this creates the possibility that an im-portant activity could be left out by mistake or because activitiesthat do not currently impact the community now may do so inthe future. Addressing these deficiencies would require negotiat-ing amendments to the protocol or a new protocol, depending onfuture political circumstances. Similar risks are associated withlimiting an FPIC protocol to one type of activity or one program,such as the Kisumkalum Agreement that applies only to forestand range activities. Although forestry may currently be the pri-mary natural resource activity affecting their land, it is possiblethat another activity, such as mining, could become viable, re-quiring that the Kitsumkalum negotiate an entirely new protocolto cover mining activities.

Nevertheless, protocols with a more general scope also sufferfrom disadvantages. Given the greater variety of interests in-volved in a protocol that covers multiple industries, such agree-ments may be more difficult for indigenous peoples to negotiate.By limiting the document to just one sector or program, indige-nous peoples may be able to obtain a more robust and protectiveFPIC protocol than if they attempted to negotiate across all sec-tors at once. In addition, the most appropriate FPIC processesmay differ across industries or programs. Thus, it may be moreefficient to create separate protocols that each cover specific activ-ities.


Analysis: scope

Defining Covered activities

Other protocols do not enumerate particular events,

but rather provide a more general standard that is

based on the extent to which indigenous peoples

might be impacted:

‣ The ILO’s FPIC requirements apply to “legislative oradministrative measures which may affect [indigenouspeoples] directly.”(37)

‣ The Consultation Agreement between Norway andthe Sami Parliament covers matters that “may affectthe Sami interests directly.” (38)

‣ The Canadian Guidelines for Aboriginal Consultationand Accommodation only apply to Federal Govern-

ment activity with a “potential adverse impact” on Abo-riginal rights. (39)

‣ The CBD’s Voluntary Guidelines should be takeninto consideration “whenever developments are pro-posed to take place on, or which are to likely to im-pact on, sacred sites and on lands and waterstraditionally occupied or used by indigenous and localcommunities.” (40)

‣ ILO’s Convention No. 169 also provides for indige-nous peoples’ participation in the planning and imple-mentation of development measures that “may affectthem directly.” (41)

Another critical issue is the extent and type of the impact re-quired to trigger FPIC. First, there is the question of whetherFPIC rights are triggered only by activities that occur on indige-nous land as opposed to activities that occur elsewhere but affectindigenous peoples, such as national land use legislation. Inother words, will the protocol only cover activities that have a di-rect impact on indigenous people or also cover activities thathave an indirect impact on indigenous peoples?

Many of the above examples, including the ILO and the Nor-way/Sami Agreement, provide that the impact on indigenousland or peoples must be “direct.” This potentially prevents in-digenous peoples from exercising their FPIC rights on projectsthat will indirectly impact them. Such projects include opera-tions that are upstream and risk affecting downstream waterquality and fishing, drilling that contaminates groundwater, proj-ects that affect regional air quality, and forestry operations thataffect the health of species that indigenous peoples rely upon fortheir wellbeing. As a result, it may be advisable to avoid usingthe word “direct” when describing the types of activities that willtrigger FPIC and to specify that projects with potential indirectimpacts on indigenous lands, communities, or livelihoods requireFPIC. Serious consideration should also be given to includingactivities that affect the water and air that indigenous peoplesuse.

Second, it is also important to consider potential and future im-pacts. Most of the examples above provide that FPIC is triggeredwhen an activity “may” affect indigenous peoples or when an ac-tivity has the “potential” to affect indigenous peoples. This pre-vents proponents of projects from attempting to avoid theirFPIC obligations when the impacts of the project are uncertainor unknown. Some protocols, such as the CBD’s VoluntaryGuidelines, are somewhat more limited and require that the im-pacts be “likely” before FPIC is triggered. This could create agreater opportunity for some project proponents to argue that

FPIC rights are not triggered because it is not sufficiently likelythat their activity will impact indigenous peoples. As such, pro-tocols should include protections that apply to activities that“may” or “have the potential to” impact indigenous peoples.

Third, there is the question of whether only negative impacts willtrigger FPIC or whether positive impacts should also be in-cluded. The Canadian Guidelines, for example, only apply whenthere are potentially adverse impacts to First Nations; the Peru-vian Consultation Law similarly excludes all ‘positive’ projects,such as health and education programs. However, though suchprograms may be intended to benefit indigenous communities,they still may not respond to their concerns or traditions. Toonly include negative impacts allows for entities and individualsoutside indigenous communities to determine what impacts arepositive and negative rather than allowing indigenous communi-ties to make those determinations for themselves. It also createsan incentive for project proponents to find a way to argue that aproject will have a net positive effect so as to avoid the FPICprocess. Thus, drafters of FPIC protocols seeking to maximizethe protection of indigenous rights should consider having bothpositive and negative impacts on indigenous peoples triggerFPIC processes.


Analysis: scope

Santa Cruz Barillas, Guatemala

Defining Entities That Must Comply with FPICAlthough governments typically hold the primary responsibilityfor ensuring that FPIC rights are respected, FPIC protocols canapply to government entities, corporations, and/or internationalorganizations and their representatives. Many of the activitiesthat typically affect indigenous lands involve the government, ei-ther because the activity is being undertaken by a governmententity or because the government has granted a private entity alicense or authorization for the activity to take place. However, itis possible that private entities could acquire land and engage inunregulated activities that impact indigenous communities.Thus, depending on what kinds of activities or programs a proto-col covers, the selection of which entities will be subject to theprotocol can be critical.

Existing protocols tend to apply only to government entities.‣ The Consultation Agreement between Norway and theSami Parliament only applies to the “Government and itsministries, directorates and other subordinate agencies oractivities.” (42)‣ The Agreement between British Columbia and the Kit-sumkalum is only binding on the two signatories, the Gov-ernment and the Band. (43)‣ The Canadian Guidelines for Aboriginal Consultationand Accommodation only applies to the Federal Govern-ment of Canada. (44)‣ The ILO guidelines specifically provide that “the obliga-tion to ensure appropriate consultation falls on govern-ments and not on private persons or companies.” (45)‣ The Philippines Administrative Order applies to “appli-cations for lease, license, permit, agreement and/or conces-sion to implement and/or operateprograms/projects/activities in ancestral domains.” (46)

By contrast, the Paraguay protocol explicitly applies to govern-ment and private entities, as well as to international financial in-stitutions.

The FAPI Protocol provides that the FPIC process applies in allcases in which governments, businesses, international financialinstitutions and other entities project proponents have an inter-est in working in Paraguay and run activities affecting indige-nous peoples’ territories, lands, natural resources and humanrights. (47)

However, assuming that the Paraguayan government does in factadopt the current version of the FAPI Protocol, it will be up tothe government to ensure that businesses and international fi-nancial institutions adhere to it. Unless a protocol becomes thelaw of the relevant country or a private party signs on to the pro-tocol, it will not be binding directly on the private party. There-fore, in order for an FPIC protocol to cover private entities ifthey are not obtaining a permit, license or otherwise having toformally deal with the government, the protocol should either 1)specifically provide that it applies to private entities AND beadopted into law by the government or 2) include the private en-tity as a signatory to the protocol.

Identifying Appropriate Indigenous RepresentativesGiven the varied forms of indigenous government and self-repre-sentation, a protocol that covers more than one indigenousgroup should provide sufficient flexibility to allow different peo-ples and tribes to exercise their FPIC rights using their ownforms of decision-making. Sufficient safeguards should also be inplace to ensure that the project proponent or the governmentcannot appoint indigenous representatives who do not in factrepresent their people. The selected protocols attempt to addressthis issue using a variety of provisions.

‣ The Philippines Administrative Order provides that in-digenous peoples will participate in the decision-makingprocess “primarily through their indigenous socio-politicalstructures and they shall likewise affirm the decisions oftheir representations.” (48)‣ The Peru Consultation Law directs that indigenous peo-ples participate through their “representative institutionsand organizations, chosen according to their traditionaluses and customs.” (49)‣ The IFC provides that the FPIC process shall “[i]nvolveIndigenous Peoples’ representative bodies and organiza-tions (e.g., councils of elders or village councils), as well asmembers from the communities of Indigenous Peoples.”(50)‣ The United Nations Development Group Guidelinesprovide that “[i]ndigenous peoples should be able to par-ticipate through their own freely chosen representativesand customary or other institutions.” (51)‣ The ILO Guidelines provide slightly more detail and sug-gest that “prior to undertaking consultation, the concernedcommunities have to identify the institutions that are [rep-resentative institutions].” (52) The Guidelines emphasizethat “if an appropriate consultation process is not devel-oped with the indigenous and tribal institutions that aretruly representative of the communities affected, the result-ing consultations will not comply with the requirements ofthe Convention.”‣ Guna Fundamental Law provides that all decisions in-volving natural resource use of their land be made by theGuna General Congress. (53)

To the extent that the protocol only covers one group, it shouldspecify which representatives from among that communityshould be charged with negotiating and decision-making author-ity. The protocol can also provide for wider community partici-pation in earlier stages of the consultation process but it shouldclearly identify the representatives or entities that will express thecommunity’s final decision. If the protocol covers or could covermultiple indigenous peoples, it should provide that prior to thebeginning of consultation, the indigenous group(s) must freelyidentify their representatives and that the failure to do so couldinvalidate the resulting FPIC process.


Defining entities That Must Comply with FPiCidentifying appropriate indigenous representatives

Analysis: scope

Consultations are essential to providing indigenous peoples withthe opportunity to grant or withhold their free, prior, and in-formed consent. To ensure that indigenous peoples are able tomeaningfully exercise their FPIC rights, an FPIC protocol mustoutline the considerations that are necessary for adequate consul-tations. These should include: 1) how early in the project plan-ning process indigenous peoples should be consulted and whethercapacity building is required; 2) how long consultations shouldlast to allow indigenous peoples to obtain sufficient informationabout the project and discuss this information among themselves;3) how project information should be conveyed to indigenouspeoples and should they be provided with outside assistance; and4) how coercion or undue influence of indigenous peoples shouldbe prevented.

When Should Indigenous Involvement Begin?As “prior” is one of FPIC’s key components, it is important for anFPIC protocol to define how early indigenous peoples should beinvolved for the consultation process to be meaningful. Existingprotocols contain a variety of provisions that attempt to accom-plish this goal:

‣ The UN-REDD Program’s draft Programme Guidelinesprovide that “prior” implies “before activities can be initi-ated, at the beginning or initiation of an activity, process orphase of implementation, including conceptualization, de-sign, proposal, information, execution, and following evalu-ation[.]” (54)‣ The IFC’s Performance Standard requires that the consul-tation and participation relationship between the projectproponent and the indigenous peoples begin “as early aspossible in the project planning…” (55)‣ The UN Development Group’s Guidelines provide that“FPIC should be sought sufficiently in advance of com-mencement or authorization of activities, taking into ac-count indigenous peoples’ own decision-making process, inphases of assessment, planning, implementation, monitor-ing, evaluation and closure of the project.” (56)‣ The Agreement between the Kitsumkalum Band andBritish Columbia provides that information sharing withthe Band will occur “during planning to provide opportu-nity to incorporate Aboriginal Interests prior to submittingplan/request” to the decision-maker within the government.(57)‣ The Agreement between the Sami and Norway requiresNorway to “as early as possible inform the Sami Parliamentabout the commencement of relevant matters…” (58)‣ The FAPI Protocol requires that consultation occur duringthe initial stages of project planning and not only when theneed to obtain indigenous approval arises. (59)‣ The Philippines Administrative Order takes a slightly dif-ferent approach and provides a specific deadline that thepreliminary consultative meeting with the host communitymust take place “within fifteen days of the submission of theapplicant’s operation plan” to the government. (60)

In order to ensure that affected indigenous communities are in-volved early enough in the process to meaningfully exercise theirFPIC rights, protocols should require project proponents to iden-tify and engage with the potentially affected communities as soonas possible. The consultation process should occur early duringthe planning stages, before any major decisions take place to allowindigenous peoples to affect how the project takes shape. This notonly ensures a more meaningful FPIC process but also increasesthe possibility that an agreement will be reached at the end of theprocess. Including a specific deadline (e.g., 15 days) places signifi-cant restrictions on the process, which may not be appropriate, es-pecially if the protocol will apply to a wide variety of activities andindigenous peoples.

A related question is whether the protocol should include meas-ures for capacity building within communities that lack the skillsand knowledge to participate effectively in the FPIC consultationand consent process. Although few protocols provide for suchmeasures, the UN-REDD program’s pilot project in Vietnam un-dertook a series of Awareness Raising workshops to educate com-munities about FPIC and UN-REDD. (61) To the extent that suchcapacity building is appropriate, FPIC protocols should not onlyallow for the time necessary to undertake these activities, but alsoensure that there are resources available to do so.

Length of ConsultationsFPIC protocols must take account of the varying internal deci-sion-making processes of different indigenous groups. Consulta-tions must be long enough to allow for these processes to takeplace, as well as for indigenous peoples to obtain and understandall the relevant information about the proposed project.

‣ The UN-REDD Programme provides that a decision-mak-ing timeline should be established by indigenous peoplesand that this timeline must be respected because “it reflectsthe time needed to understand, analyze, and evaluate theactivities under consideration.” (62)‣ The IFC Performance Standard requires that consultations“provide sufficient time for Indigenous Peoples’ decision-making processes.” (63)‣ The Agreement between the Sami and Norway requiresthat “[s]ufficient time shall be allocated to enable the partiesto carry out genuine and effective consultations and politi-cal consideration of all relevant proposals.” (64)‣ The FAPI Protocol provides that for each project, the par-ties must reach an agreement on the timing of consultationsand establish a reasonable set of deadlines for the process.(65)‣ The Fundamental Law of the Guna People in Panamadoes not allow for any exploitation or exploration of theGuna land without the consent of the Guna General Con-gress, (66) which only meets three times a year. (67) Assuch, any FPIC process involving the Guna must allow forenough time for the Congress to meet and decide to grantor withhold consent.


When should indigenous involvement Begin?length of Consultations

Analysis: What should the Consultation Process look like?


information sharing and other Consultation items


‣ The Peru Consultation Law instructs that consultationsmust last for a “reasonable period” that allows for “the in-stitutions or organizations of indigenous and native peo-ples to understand, reflect on and make specific proposalsabout the legislative or administrative measures that are thesubject of the consultation.” (68)‣ The Philippines Administrative Order has more specificdeadlines:

• A preliminary consultative meeting will be held within15 days of the submission of the project proponent’s op-eration plan to the Regional Office of the National Com-mission on Indigenous Peoples. Notices of this meetingmust be posted in affected indigenous communities atleast 5 days prior to the meeting.• The council of elders/leaders will decide whether an-other meeting is necessary to complete the FPIC process.• The indigenous people have 15 days after the last con-sultative meeting to consult with members of their owncommunities. • The elders/leaders may ask for another consultativemeeting to discuss additional negotiation points with theproject proponent.• 15 days after the community consultation period, theNational Commission on Indigenous Peoples will holdan assembly of the indigenous community to determinetheir decision. (69)

Although the Philippines Administrative Order provides moreconcrete deadlines, the timeframes for consultation may be tooshort, depending on the nature and complexity of the projectbeing considered. Especially if the economic stakes are high, in-digenous peoples may feel pressured to forgo asking for addi-tional consultative meetings either after the initial presentation ofthe proposal or after they consult with their communities. In ad-dition, the 5-day period for providing notice to the affected in-digenous peoples may not be sufficient to assemble the necessaryelements of the community. It is also not clear that the 15 daysbetween the submission of the operation plan and the first con-sultative meeting will be enough time for opponents of the planto prepare their case against the project (and the AdministrativeOrder says nothing about providing potential opponents outsidethe community with notice of the meeting or with a copy of theoperation plan prior to the meeting).

The more open-ended approach taken by the other above proto-cols allows for the varying traditional decision-making processesto be incorporated into the FPIC consultation timeline. The pro-tocol should reference the need to accommodate these processes,as well as allow for sufficient time for genuine and effective con-sultations and thorough consideration of all proposals.

Information Sharing and Other Consultation Items

During the consultation process, full and complete informationmust be provided to indigenous communities in a manner inwhich they are able to understand. As such, the protocol shouldaddress the manner in which information will be shared, includ-ing establishing the form and language of those materials. In ad-dition, many protocols allow for indigenous peoples to seek or beprovided with outside expert help to ensure that they are able tofully understand the information being provided. In order forcommunities to be able to engage outside consultants and ex-perts, some protocols provide that the project proponents shouldbear the reasonable costs of obtaining this assistance:

‣ The CBD’s Guidelines require early identification andprovision of “necessary human, financial, technical andlegal resources…to support indigenous and local expertise[and to] facilitate effective indigenous and local commu-nity participation in the impact assessment process.” (70)They also require the provision of “accurate, factual andlegally correct information.” (71)‣ The Philippines Administrative Order provides that dur-ing a preliminary consultative meeting, to occur within fif-teen days after the project proponent has submitted theiroperation plan to the government:

• The project proponent must present the indigenouscommunity with information supporting the proposal,which must include, but not be limited to:

• the costs and benefits of the project; • the perceived disadvantages or adverse effects to thecommunity and the measures adopted by the projectproponent to mitigate these; • and “a statement of commitment to post perform-ance bond to answer for consequential damages to thecommunity.” (72)

If there is any opposition to the proposal, those individuals willbe given equal time to present the basis and reasons for their op-position. (73)



‣ The FAPI Protocol has numerous provisions governing theexchange of information and the provision of experts to assistindigenous peoples:

• With respect to obtaining expert help, it provides thateach party has the right to have technical advisers andlawyers provide them with assistance during the consulta-tion. These outsiders must be selected before the consulta-tion. Indigenous peoples have the right to have the projectproponent pay for the reasonable costs of the lawyers andtechnical experts who will be assisting the indigenous com-munity. (74)• With respect to information exchange, the FAPI Protocolrequires that:

o All information that is provided must be culturally ap-propriate in terms of the nature of the information andthe quality of the information. This includes providinggraphics, maps, posters and videos where possible, ratherthan relying solely on written language. (75)o Where illiteracy is significant within the indigenouscommunity, a prior agreement must be reached regardingthe specific methods for exchanging information. (76)o The project information provided must at least include:

◘ The nature, size and scope of the project;◘ The duration of the project;◘ The affected local areas and resources;◘ A preliminary study of the potential impacts of the project;◘ The reason or purpose of the project;

◘ The personnel who will likely be involved in allstages of the project; ◘ The specific measures that the project proponentwill employ, including measures to mitigate damage andadverse impacts and monitor the implementation andcompletion of the project;◘ The potential risks and adverse impacts presented bythe project, including but not limited to the social, envi-ronmental, cultural and health risks;◘ The benefits to the community; and◘ Drafts and final versions of any social and environ-mental impact studies conducted in connection withthe project. (77)

o Indigenous communities can request copies of the proj-ect financial projections and business plan. (78)o The project proponent must also provide indigenouscommunities with adequate and complete responses toquestions and concerns raised. (79)o Information must be provided sufficiently in advanceto facilitate the exchange. (80)

• In addition, notably, the FAPI Protocol also allows af-fected indigenous peoples to request reasonable amounts offinancial resources to assist them with the costs of inform-ing members of their community and reaching a decision.(81)

As noted above, for a meaningful FPIC process to take place, full and adequate information sharing must occur. The protocol mustspecifically provide for the advanced exchange of all relevant information in a language and medium that is culturally appropriate forthe indigenous peoples being consulted. Time and resources must also be made available for the indigenous peoples to engage outsideexpert assistance to help them fully understand the information they are considering.

Suriname


ensuring noCoercion Takes Place


‣ The FAPI Protocol has extensive provisions aimed atcreating a coercion-free environment:

• Project proponents, as well all agents acting at theirbehest or with their knowledge, are prohibited fromusing or threatening to use violence or intimidation andfrom offering bribes, gifts, or other questionable or ir-regular offerings during the consultation and negotia-tion process. (82)• Those participating in the negotiations must avoidcontact with representatives of the other negotiatingparties who are not authorized to participate in the ne-gotiations. (83)• Public or private security officers should not be pres-ent during the negotiations and consultations and arenot permitted on indigenous land during the negotia-tions. (84)

‣ The Philippines Administrative Order contains numer-ous provisions to limit coercion:

• The project proponent may not:o Use “force, threat, coercion, intimidation, at anydegree or in any manner, including those done byindividuals or group[s] of persons acting” for theproject proponent; o Bring “firearm/s in the community during visitsby the applicant or group of persons acting” for the

project proponent;o Use “bribery or promise any money, privilege,benefit or reward…”;o Engage in “clandestine or surreptitious negotia-tions with [indigenous peoples], individuals ormembers of the community concerned done with-out the knowledge of the council of leaders or eld-ers”;o Provide “to the community or to any of its mem-bers of donations of any kind.” (85)

• The Administrative Order also prohibits members ofthe indigenous community from accepting or receivinggifts from the project proponent or accepting any formof bribery. (86)• Other actors, such as non-governmental organizationsand local government officials are also prohibited fromexerting undue influence on the community. (87)

‣ The UN-REDD Programme Guidelines provide that the“process is self-directed by the community from whomconsent is being sought, unencumbered by coercion, ex-pectations or timelines that are externally imposed…[The] process is free from coercion, bias, conditions,bribery or rewards.” (88)

Anti-coercion provisions should specifically prohibit all forms of bribery, including promises for payment or provision of anything ofvalue after the conclusion of the FPIC process. These provisions should apply to all involved parties, including the project proponent,indigenous peoples, government officials, independent experts and non-governmental organizations. To limit the likelihood of this sortof improper conduct, contact between individuals working on behalf of the project proponent and indigenous individuals outside of for-mal meetings should be discouraged.

An FPIC protocol should also take care to ensure that indigenous peoples have no cause to fear the use of force or any kind of retaliationfor refusing consent or insisting on particular concessions. Government and private security forces should not be present at meetingsites or on indigenous lands during the negotiation and decision-making process. The protocol should also specifically prohibit the par-ties from threatening future violence or sanctions after the FPIC process has ended.

Ensuring No Coercion Takes PlaceIn order for the consultation and consent process to be “free,” indigenous peoples must not be subjected to any form of coercion duringthe negotiation and consent process. This includes preventing explicit and implicit threats of force or retaliation, as well as bribery andother forms of corruption.

Brazil

Concluding the Negotiation ProcessFPIC protocols must also provide a mechanism to conclude thenegotiation and consultation period. Most importantly, it mustestablish whether the indigenous people will be permitted to haveveto power over whether the project proceeds. In many cases,protocols stop short of respecting this part of FPIC and only pro-vide for review sharing or that indigenous peoples’ viewpointsthat were expressed during the consultation process will be fac-tored into the government’s decision about the project.

‣ Under the Agreement between the Kitsumkalum andBritish Columbia, there are no consent provisions. TheKitsumkalum are consulted but the discussion is only of“suitable accommodation options and interim solutionswhere appropriate… British Columbia will provide theKitsumkalum Indian Band with the final decision and ra-tionale in writing.” (89) The Agreement also provides forrevenue sharing.‣ Similarly, the Peru Consultation Law charges the relevantgovernment entity to make the decision on the project.This decision must be “properly justified and involve an as-sessment of the views, suggestions and recommendationsraised by the indigenous and native peoples during theprocess of dialogue. It also includes the analysis of theconsequences that the adoption of a particular measurewould have on their collective rights recognized by theConstitution and treaties ratified by Peru [including theILO Convention No. 169].” (90)

• The Consultation Law also provides that an agreementmay be reached between the government and indigenouspeoples as a result of the consultation process. Thisagreement is binding on both parties.

• If no agreement is reached, the state entities are still re-quired to “take all necessary measures to ensure the col-lective rights of indigenous or native peoples.” (91)

‣ Although the IFC seeks to “ensure the free, prior and in-formed consent” (92) of indigenous peoples affected bytheir projects, the Performance Standard in fact only pro-vides for consultation and participation.

If the protocol is to provide indigenous peoples with their fullFPIC rights, then there must be a stipulated process for the in-digenous people to express their decision and the decision mustbe documented. In addition, if the indigenous community con-sents to the proposed project, it may wish to do so only undercertain conditions, such as promises by the project proponent tolimit environmental impacts. In this case, the precise terms ofthe agreement between the indigenous community and the proj-ect proponent must be carefully documented.

‣ The Philippines Administrative Order provides:• The National Commission on Indigenous Peoples willhold an assembly where the indigenous community willbe represented by the head of each household. By ashow of hands, the community will express its decisionon the project.• The leaders/elders are required to explain the vote and theterms and conditions of a decision granting consent. (93)• Non-consent by indigenous peoples be documented inwriting and contain “the specific reasons for non-con-sent.” This document “shall be signed/thumb marked bythe authorized leaders/elders in every page of the paper”and submitted to the Regional Director. (94)• In the case of a favorable decision, “the agreementsand conditions discussed in the [FPIC] process are em-bodied in a Memorandum of Agreement (MOA) be-tween/among the [indigenous peoples] and the [NationalCommission on Indigenous Peoples] and any other partyequally involved and witnessed by their respective mem-bers… The Agreement must be written in English orTagalog and in the appropriate [indigenous peoples’] lan-guage.” (95)• The MOA will contain numerous provisions, including:

o The benefits to be derived by the indigenous peoples;o Information to guide the future monitoring andevaluation of the MOA;o The use of all funds to be received by the indige-nous communities, including assurances that a por-tion of these funds are allocated to developmentprojects, social services and/or infrastructure devel-opment;o Detailed measures to protect indigenous rightsand value systems;


Concluding the negotiation Process

Analysis: Concluding the negotiation Process

o Detailed measures to conserve/protect any af-fected portion of the ancestral domain;o Responsibilities of the project proponent andthe host indigenous community. (96)

• In addition, the relevant National Commission onIndigenous Peoples Regional Officer must issue a Cer-tification Precondition that certifies that the FPICprocess occurred. The Certification must contain:

o Notices of every meeting for purposes of securingFPICo Minutes of all meetings where the project was pre-sented to the indigenous communities;o Minutes of all consultation meetings ;o Minutes of all meetings negotiating the terms andconditions for granting FPIC;o Minutes of meetings validating the decision of theauthorized indigenous representative(s);o Sketch map of the area impacted by the project;o Documentation of the customary practice on con-sensus building; ando A census of the population of the host indige-nous community. (97)

‣ The CBD’s Guidelines provide that “an agreementcould be negotiated between the community and theproponent of the development,” the terms of which“could cover the procedural aspects of impact assess-ments, including the option of a no-action alternative,setting out the rights, duties and responsibilities of allparties, and also address measures to prevent or mitigateany negative impacts of the proposed development.”(98)‣ The FAPI Protocol requires that written agreements onseveral issues, including intellectual property, benefitsharing, measures of environmental restoration and miti-gation and measures and mechanisms to promote andprotect the rights and interest of the affected peoples bereached before the indigenous peoples make any deci-sion on the project. (99) After these agreements havebeen reached and negotiations have concluded, the deci-sion of the indigenous peoples will be documented.All agreements, including the final agreement withholdingor granting consent, must be in writing and signed by bothparties. (100)


Analysis: Concluding the negotiation Process

In order to protect the full breadth of FPIC rights, an FPIC protocol must clearly provide indigenous peoples with the right to grant orwithhold consent for a project. Consultation stops short of respecting all FPIC rights. The protocol should also ensure that traditionalindigenous decision-making processes are employed to arrive at the final determination. For example, it is not clear that the Philip-pines method of polling the heads of households via the raising of hands is in keeping with the practices of all indigenous communitiesin the Philippines. Moreover, the fact that this voting is done in the presence of National Commission on Indigenous Peoples officialscould subtly influence the voting process.

Once a decision is reached, there must be a clear process by which the indigenous decision is documented and acknowledged by allparties. If the indigenous group is granting consent, the document should include all of the conditions the indigenous peoples wish tohave imposed on the project, including project timetables, mitigation measures, and benefit sharing.

Roraima, Brazil

To make the FPIC process meaningful, an FPIC protocol mustset out guidelines for how agreements reached during the negoti-ation process will be implemented, how disputes concerningthese agreements will be raised and resolved, and how indigenouspeoples can seek recourse if they believe that their FPIC rightshave been or are being violated.

‣ The Peru Consultation Law provides for an appealsprocess for the government denial of an indigenous requestthat a consultation process be initiated for a particularproject. (101) It also provides that any agreement reachedpursuant to the negotiation process is binding on both par-ties and enforceable in the administrative and judicial sys-tem. (102) However, it does not explicitly provide arecourse mechanism for indigenous peoples for instanceswhere some aspect of the FPIC process is inadequate anddoes not provide for monitoring.‣ Under the Philippines Administrative Order:

• For the implementation of an MOA: An MOA approv-ing a project must include monitoring and evaluationschemes and penalties for non-compliance. (103)

o Any complaints about the MOA implementationwill be directed to the National Commission on In-digenous Peoples Regional Hearing Office. Deci-sions by this entity can be appealed to theCommission en Banc and then to the Court of Ap-peals. However, the National Commission on In-digenous Peoples Regional Hearing Office onlyacquires jurisdiction over such a complaint after thecouncil of leaders/elders from the relevant indige-nous community has certified that the matter couldnot be resolved in accordance with traditional con-flict resolution institutions using customary laws andpractices. (104)

• For monitoring the FPIC process as a whole:o Sanctions may be imposed if any project propo-nent, government official, indigenous person or in-volved NGO commits an act prohibited by theAdministrative Order (e.g., bribery). Non-indige-

nous cases are handled by the National Commissionon Indigenous Peoples and penalties can include sus-pension from future activities involving indigenouspeoples. Complaints of banned conduct against in-digenous individuals are referred to the Council ofElders/leaders and can result in the suspension ofthe FPIC process until the tribe addresses the pro-hibited act. (105)o It is also possible to petition the Commission toprevent the issuance of the Certification of the FPICprocess in the case of an irregularity that “substan-tially affects the interest of the parties involved.” TheCommission can “either declare the proceedings hadas a nullity and determine the appropriateness ofholding another proceedings or declare the proceed-ings as already done, and/or impact the administra-tive sanctions herein.” (106)

‣The UN-REDD Programme Guidelines include the fol-lowing monitoring/implementation provisions:

• “In cases where there is a question on the validity ofthe FPIC process, an independent evaluation should beundertaken by an institution, to be mutually agreed byall relevant rights-holders, to verify that the process wasaligned with the definition of each of the terms of FPICas outlined” previously in the document. (107)• The process for seeking recourse should be communi-cated as part of the FPIC process and decision. (108)• If the conditions upon which an indigenous commu-nity based its consent to a project are not met, the com-munity “may review and either reaffirm or refuseconsent. This option may be invoked at any stage of pro-gramme implementation.” However, if conditions uponwhich consent was based are being met, “ongoing con-sent is implied. If there is a disagreement over whetherconditions are being met or not, communities can ex-press their grievance with the relevant national levelgrievance mechanism.” (109)


Monitoring and implementation

Analysis: Monitoring and implementation

Ngong Hills, Kenya

• The Guidelines also instruct that a complaint mecha-nism be established for the Programme, which should:1) be independent and impartial; 2) be fair and objectivein the process and the outcome; 3) be transparent andaccountable; 4) be professional and include the hiring ofexpert consultants when necessary; 5) be accessible; 6) beeffective and efficient; 7) provide for grievances to be ad-dressed close to the administrative level and for indige-nous dispute-resolution processes to be used wheneverpossible; and 8) be tailored to the structure, framework,and culture of the UN-REDD Programme. (110)

‣Under the FAPI Protocol, prior to the indigenous com-munities reaching a decision, written agreements betweenthe parties must be reached on arrangements for monitor-ing and implementation and conflict resolution: (111)

• This will include joint monitoring to ensure that theagreements and work plans between the parties are im-plemented in good faith. (112)• If one party desires, an independent entity will becharged with monitoring compliance with the agree-ments and work plans. This entity or body can be em-powered to submit disputes between the parties toarbitration or a previously-agreed upon dispute resolu-tion body. (113)• Mechanisms for resolving all disputes about the inter-pretation and allegations of violations of the agreementsor work plans will be agreed to, including identifying anyissues that will must be resolved through binding arbitra-tion. (114)

The above protocols take two general approaches to implementa-tion and monitoring. The first is taken in the Philippines Admin-istrative Order, where specific procedures are laid out to channelparties’ disputes and complaints, and in the UN-REDD verifica-

tion process, where an independent institution that verifies speci-fied items about the FPIC process. The second is taken by theFAPI Protocol, which leaves it up to the parties to negotiate mon-itoring, implementation, and dispute resolution agreements priorto the indigenous peoples making a decision, and by the UN-REDD complaint mechanism.

Allowing the parties to negotiate the implementation and moni-toring mechanisms provides more flexibility to the process, in-cluding the ability to choose an entity to monitor compliance orsubmit certain disputes to binding arbitration, as appropriate.However, it also adds a potentially contentious item to the list ofissues that must be negotiated prior to indigenous peoples mak-ing a decision about the project. As such, leaving the issue ofmonitoring and implementation open for debate could prolongor even derail the FPIC process. If this method is chosen, specialattention must be paid to ensuring that the indigenous peoplehave sufficient knowledge and/or expert assistance to be able toengage in the negotiations on equal footing with the project pro-ponent.

Nevertheless, specifying a mechanism for monitoring and imple-mentation could result in a lack of flexibility and/or reliance onineffective systems or entities. For example, in the case of thePhilippines Administrative Order, much of the responsibility ofmonitoring and dispute resolution rests with the regional author-ities of the National Commission on Indigenous Peoples, mean-ing that a failure on the part of this entity could significantlyimpact the integrity of the FPIC process in the Philippines. Assuch, if this method is chosen, the protocol should include a ro-bust appeals process to make sure that one entity is not able toderail the entire FPIC process.


Monitoring and implementation

Analysis: Monitoring and implementation

The Philippines


overall assessment

All of the protocols and guidelines discussed above have vary-ing strengths and weaknesses. These pros and cons stem notonly from the particular provisions of the protocols, but also

from how these guidelines have been implemented in practice,to the extent that this information is available.

British Columbia

Canada

Norway

Panama

• Different treaties negotiated withdifferent tribes provide opportuni-ties to address individual tribes’ needs.

• Treaties signed with variousbands include mandatory benefitsharing and cover “claimed or as-serted territory.”

• Apply to all “contemplated” con-duct of the Federal Governmentand to “potential or established” in-digenous rights.

•Recognize that the Sami have aright to be consulted on a widerange of activities that affect themdirectly•Require that Sami be fully in-formed about all relevant concernsand questions as early as possibleand at all stages of the process• Allow Sami Parliament to inde-pendently identify matters where itbelieves it should be consulted.

• Clearly requires Guna decision-making body to have veto powerover any exploration/exploitationof Guna land• Developed by Guna people, notimposed from the top down; there-fore permits Guna self-determina-tion in deciding what the lawshould/should not contain• Panamanian government hasbowed to strong Guna oppositionto particular projects

• Only provides for consultation and benefit sharing;does not grant indigenous peoples the right to con-sent • Do not cover activities by third parties that do notinvolve the government• Each treaty limited to a narrow set of activities; donot apply to all activities that could affect the tribe.

• Only provides for consultation and accommodation;does not grant indigenous peoples the right to con-sent. • Consultation and accommodation only requiredwhen potential impact is deemed “adverse,” by theFederal Government, not by indigenous peoples• Does not cover activities by third parties that do notinvolve the government

•Only apply to government actions and not thirdparty activities•Only triggered by activities that directly affect Sami•Do not recognize Sami right to consent

•Not officially recognized by Panamanian governmentthough it has acquiesced to numerous elements;therefore, the government could change behavior andapprove projects in the future that affect the Gunawithout recognizing Guna FPIC rights or the Funda-mental Law

government/entity Pros Cons


Paraguay

Peru

The Philippines

• Developed by indigenous peoples• Likely that the Paraguayan gov-ernment will adopt it• Broad coverage of activities, in-cluding state and private• Requires all parties to agree ondispute resolution mechanisms andtiming of the consultations• Contains detailed provisions toprevent coercion of indigenouscommunities during the FPICprocess • Contains mechanisms to assist in-digenous people with costs of FPICprocess, including outside expertassistance

•Provides for consultation on awide variety of government activi-ties•Fully endorsed by Peruvian gov-ernment•Effectiveness of law does not ap-pear to depend on resolution ofland titling disputes•Allows indigenous people to initi-ate the consultation process regard-ing specific measures withoutdepending on the government toinitiate it first• Provides for creation of officialdatabase of indigenous and nativepeoples including information onthe range of indigenous settlementand usage patterns, which couldprovide the government with a bet-ter understanding of which proj-ects will impact indigenouspeoples.

• One of the most comprehensiveattempts at a national FPIC proto-col with detailed guidelines• Should apply to wide range of ac-tivities• Includes concrete guidelines fornegotiation, implementation, andmonitoring of FPIC process• Guarantees indigenous peoplesthe right to consent

•Difficult to follow; repetitive•Leaves many details for debate among parties, in-creasing the likelihood of stalled negotiations or thatindigenous communities are not as informed or finan-cially prepared as governments or private entities areto deal with a long, complicated negotiation process

•Only applies to government and not to private entityprojects•Only applies to activities with a “direct impact on thecollective rights” of indigenous and native peoples(nor does it apply to “positive” projects and pro-grams).•Does not provide indigenous peoples with the rightto consent to projects, leaving the government withthe final word if no agreement is reached.•Only requires that indigenous people be consultedafter a project contract has been granted.•The database is being compiled by the government,and has not yet been released; indigenous organiza-tions fear that it may exclude certain communities.• Implementing legislation weakened the ConsultationLaw, which was already critiqued by indigenous peo-ples. Consultations have yet to take place under theLaw.

• Includes waiver provision whereby any activity so-licited by indigenous groups through their leaders thatdoes not involve government license or permissiondoes not require compliance with FPIC• Timetables only provide 15 days for certain parts ofFPIC process rather than allowing timing to be condi-tional upon indigenous needs• Does not include provisions for outside expert assistance• Recourse mechanism leaves significant power to theregional representative of the National Commissionon Indigenous Peoples• Major defects in application thus far:

o Allows “too much latitude in interpretation by Governmentauthorities thereby allowing companies to bypass customary lawsand institutions”;

o Simplified guidelines issued in 2006 allow for “more superfi-cial and accelerated consultations”;o The procedure limits FPIC to areas that the Government has

already listed as subject to indigenous rights, thus excludinghuge areas subject to claim that have yet to be formally rec-ognized.”

government/entity Pros Cons

Overall Assessment

CBD

ILO

IFC

UN Development Group

UN-REDDProgram

• Specifically recommend that suffi-cient human, financial, technicaland legal resources be provided toindigenous peoples to ensure theireffective participation in negotia-tions.• Provide for invalidation of theFPIC process if it is determinedthat the inappropriate indigenousrepresentatives were selected toparticipate in the negotiations.

• Strict with respect to the properidentification of indigenous repre-sentatives; failure to do so will re-sult in the invalidation of theconsultation process.• Call for periodic evaluation ofoperation of consultation mecha-nisms with indigenous participa-tion in this evaluation process.

• Recognizes that there are differ-ent definitions of “indigenous peo-ples” and that FPIC may apply togroups who have lost their collec-tive attachment to their ancestrallands.

• Recognize recognize the need tofactor indigenous peoples’ deci-sion-making processes into everystep of the FPIC process, includingplanning, implementation andproject wrap-up.• Stipulate that indigenous peoplesshould participate in the FPICprocess through their own freely-chosen representatives.

• Recognizes that indigenous peo-ples’ decision-making timelinemust be respected.• Provide that an independent veri-fication of the FPIC process and re-sults should be undertaken by anoutside party and require that a re-course mechanism be developed.•Indigenous people maintain free-dom to withdraw from the projectif they have evidence of violationsof the agreed-upon guidelines.

• Requires a direct impact on indigenous communitiesto trigger FPIC. • Only apply to governments, not to private entities• Merely voluntary; not binding on any entity

•Has limited application because few countries havesigned on•Only applies to governments•Do not provide particularly robust guidance with re-spect to the procedures that are necessary for a mean-ingful FPIC consultation process.•Only requires consent in the case of indigenous relo-cation.

•Although the Performance Standards state that theIFC’s objective is to ensure the “free, prior, and in-formed consent” of affected indigenous peoples, theStandards themselves only provide for consultationwith indigenous peoples.

•Place onus for complying with FPIC on the State andnot private entities. •State that “consent to any agreement should be inter-preted as indigenous peoples have reasonably under-stood it” and do not provide any recoursemechanisms except for conducting studies and pollingof indigenous peoples to measure the progress of aprogram.

entity Pros Cons


Overall Assessment

Conclusion

The way FPIC plays out at the community and national levels will be critical in the years to come. A few – among many – of the chal-lenges that will need to be addressed include:

1) Conceptually: Who ought to have the right to consent? For what kinds of projects?2) Adequate processes: How can authentic community decision-making be supported by FPIC?3) What is consent: Majority vote? Consensus? 4) How can FPIC be implemented in contexts of weak governance and increasing interest in indigenous lands and resources?5) How can the asymmetry between indigenous communities and larger entities, such as governments and corporations, be addressed?

These are all questions that indigenous peoples are facing the world over, especially given increasing pressures on their lands and re-sources. FPIC protocols at the community and national levels, as well as within agency guidelines and corporate standards, will con-tinue to evolve. This document sought to identify some of the questions that should be raised, either in those documents or as acommunity is going through a consultation process. As experiences with FPIC implementation – successful and otherwise – multiply,we will seek to update this document. To that end, please send comments and any additional documents that should be considered ourway.

Things are rapidly evolving. Since the first draft of this document in the summer of 2011, several new laws have passed; guidelineshave been further developed; and consultation processes undertaken. We have updated it since, but the document will perforce bedated soon. We therefore encourage submission of FPIC treaties, protocols, guidelines, etc. that we may have missed, or that are yetbeing developed. Any such materials can be sent to [email protected] and/or [email protected]. It is our hope that we’ll be able to publish anupdate that both includes more materials, and addresses other questions as they arise. We hope you find this document useful, and en-courage your comments and feedback.

Rainforest Foundation US Cultural SurvivalMay 2013


(1) See, for example, IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communitiesof Toledo District (Belize), October 12, 2004, footnote No. 123(2) Jennifer Corpuz, Onel Masardule and Mikhail Todyshev, “Indigenous Peoples’ Free, Priorand Informed Consent in the Convention on Biological Diversity: An Overview,” IndigenousPeoples’ Contributions to COP-8 of the CBD (March 2006), http://www.ffla.net/new/es/bibli-ografia-recomendada/doc_download/63-indigenous-peoples-free-prior-and-informed-consent-in-the-convention-on-biological-diversity.html.(3) International Labour Organization, Convention concerning Indigenous and Tribal Peoplesin Independent Countries, Art. 6, June 27, 1989, http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 (hereinafter, “ILO No. 169”).(4) Ibid, Article 7(5) Convention on Biological Diversity, Art. 8(j), December 29, 1993, http://www.cbd.int/con-vention/text/.(6) Secretariat of the Convention on Biological Diversity, Akwé: Kon Guidelines, 2004,http://www.cbd.int/doc/publications/akwe-brochure-en.pdf (hereinafter, “CBD Guidelines”).(7) Constitution of the Bolivarian Republic of Venezuela, Art. 120 (1999) (English translationfrom original legal text).(8) Due Process of Law Foundation, The Right of Indigenous Peoples to Prior Consultation:The Situation in Bolivia, Colombia, Ecuador, and Peru, p.9, May 5, 2011,http://www.oxfamamerica.org/files/dplf-executive-summary.pdf.(9) Republic of the Philippines, An Act to Recognize, Protect and Promote the Rights of In-digenous Cultural Communities/Indigenous Peoples, Creating a National Commission on In-digenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds therefor, andfor Other Purposes, Sec. 16-17, October 29, 1997, http://www.metagora.org/training/encyclo-pedia/IPRA_IRR.pdf.(10) See Law 29785 of 2011, http://www.congreso.gob.pe/ntley/Imagenes/Leyes/29785.pdf(11) National Commission on Indigenous Peoples, Revised Guidelines for the Issuance of Cer-tification Precondition and the Free and Prior Informed Consent in Connection with Applica-tions for License, Permit, Agreement or Concession to Implement and or OperatePrograms/Projects/Plans/Business or Investments Including Other Similar or Analogous Activ-ities or Undertaking that do not Involve of License, Permit, Agreement or Concession but Re-quires the Free and Prior Informed Consent of ICC/IP Community in Ancestral DomainAreas in Accordance with R.A. 8371 (2002) (hereinafter, “NCIP Administrative Order”).(12) International Finance Corporation, World Bank Group, Performance Standard 7 –V2: In-

digenous Peoples, December 1, 2010, http://www.ifc.org/ifcext/policyreview.nsf/Attachments-ByTitle/Phase3_PS7_Clean_Highlights/$FILE/Phase3_PS7_Clean_Highlights.pdf (hereinafter,“IFC Standard”).(13) See UN REDD Programme, “Guidelines on Free, Prior and Informed Consent’” January2013, available at http://www.un-redd.org/Launch_of_FPIC_Guidlines/tabid/105976/Default.aspx(14) Amy K. Lehr and Gare A. Smith, Implementing a Corporate Free, Prior and InformedConsent Policy: Benefits and Challenges, p.5, May 2010, http://www.foleyhoag.com/NewsCen-ter/Publications/eBooks/~/media/2AF1DB5B36FF46A39C18E2C7AA8F6D2A.ashx.(15) Sohn, J, (ed) (2007), Development Without Conflict: The Business Case for CommunityConsent, World Resources Institute, p. 3(16) More recent drafts than the ones reviewed in this paper may exist. The fact that a proto-col is referenced in this paper should not be taken as an indication that this version is currentlyin force or effect.(17) Government of British Columbia, The New Relationship with Aboriginal People,

http://www.newrelationship.gov.bc.ca/shared/downloads/new_relationship.pdf.(18) E.g., Consultation and Revenue Sharing Agreement on Forest and Range between the

Kitsumkalum Indian Band and Her Majesty the Queen in Right of the Province of British Co-lumbia, May 11, 2011, http://www.newrelationship.gov.bc.ca/shared/downloads/Kit-sumkalum_may_2011.pdf (hereinafter, “Kitsumkalum Agreement”).(19) Note that because the Guna’s Fundamental Law is not available in English, it is not in-

cluded in the Appendices to this Report. The Report will also not quote directly from the Fun-damental Law because of the lack of official English translation.(20) Federation for Self-Determination of Indigenous Peoples (FAPI), Proposed Protocol for

the Process of Consultation and Consent with Indigenous Peoples of Paraguay, May 2011 (un-offi cial translation from original Spanish) (hereinafter FAPI Protocol).(21) “Peru passes indigenous rights law without consent of the Indians,” Survival for Tribal

Peoples, April 4, 2012, http://www.survivalinternational.org/news/8251.(22) The Indigenous Peoples Rights Act of 1997, Sec. 13-20.(23) NCIP Administrative Order.

sources


(26) Government of Canada, Aboriginal Consultation and Accommodation: UpdatedGuidelines for Federal Officials to Fulfill the Duty to Consult, 12, March 2011,http://www.ainc-inac.gc.ca/ai/arp/cnl/ca/intgui-eng.pdf (emphasis added) (hereinafter,“Canada Consultation Guidelines”).(27) Kitsumkalum Agreement, Sec. 1.20.(28) IFC Standard, Para. 16.(29) IFC Standard, Para. 17.(30) IFC Standard, Para. 6.(31) FAPI Protocol, Preamble.(32) FAPI Protocol, Para. I.1.1.(33) FAPI Protocol, Terms of Agreement, Para. 1(c).(34) Congress of the Republic of Peru, Law of the Prior Consultation of Indigenous andNative Peoples, as Recognized in the Convention 169 of the International Labour Organi-zation, Art. 10, May 19, 2010 (unofficial English translation from Spanish original) (here-inafter, “Peru Consultation Law”).(35) NCIP Administrative Order, Sec. 6.(36) Kitsumkalum Agreement, Sec. 1.2, 1.12.(37) International Labour Organization, Convention concerning Indigenous and TribalPeoples in Independent Countries, art. 6.1(a), June 27, 1989, http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169(38) Procedures for Consultations between State Authorities and the Sami Parliament[Norway], Sec. 2, May 11, 2005, http://www.regjeringen.no/en/dep/fad/Selected-topics/Sami-policy/midtspalte/PROCEDURES-FOR-CONSULTATIONS-BETWEEN-STA.html?id=450743 (hereinafter, Sami Agreement).(39) Canada Consultation Guidelines, p.12.(40) CBD Guidelines, Para. I.1.(41) Convention No. 169, Art. 7.1.(42) Sami Agreement, Sec. 2.(43) Kitsumkalum Agreement.(44) Canada Consultation Guidelines, p.12.(45) ILO, Indigenous & Tribal Peoples Rights in Practice: A Guide to ILO Convention No.169, p.61, 2009, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/docu-ments/publication/wcms_106474.pdf (hereinafter, “Guide to Convention No. 169”).(46) NCIP Administrative Order, Sec. 3.(47) FAPI Protocol, Preamble.(48) NCIP Administrative Order, Sec. 4(a).(49) Peru Consultation Law, Art. 7.(50) IFC Standard, Para. 10.(51) United Nations Development Group, Guidelines on Indigenous Peoples’ Issues, 28,February 2008, http://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf(hereinafter, “UN Development Group Guidelines”).(52) Guide to Convention No. 169, p.61.(53) Guna Yala, Fundamental Law, Part I, Chap. VII, Art. 44.(54) See UN REDD Programme, “Guidelines on Free, Prior and Informed Consent’” Janu-ary 2013, available at http://www.un-redd.org/Launch_of_FPIC_Guidlines/tabid/105976/Default.aspx (hereinafter UN-REDDGuidelines), p. 8.(55) IFC Standard, Para 10.(56) UN Development Group Guidelines, p.28.(57) Kitsumkalum Agreement, Appendix B.(58) Sami Agreement, Sec. 6.(59) FAPI Protocol, Para. II.1.(60) NCIP Administrative Order, Sec. 14(c). (61) UN-REDD Programme, Applying the Principle of Free, Prior and Informed Consentin the UN-Redd Programme in Vietnam, 18, 21, August 2010.(62) UN-REDD Guidelines, p.8.(63) IFC Standard, Para 10.(64) Sami Agreement, Sec. 6.(65) FAPI Protocol, Time Arrangements, Para. 1(66) Guna Yala, Fundamental Law, Part II, Chap. 14, Art. 210.(67) Guna Yala, Fundamental Law, Part II, Chap. 1, Article 1.(68) Peru Consultation Law, Art. 4(e).(69) NCIP Administrative Order, Sec. 14 (c)-(e).(70) CBD Guidelines, Para. 18.(71) CBD Guidelines, Para. 53.(72) NCIP Administrative Order, Sec. 14(c).

(73) NCIP Administrative Order, Sec. 14(c).(74) FAPI Protocol, Specialists and External Consultants, Para. 1.(75) FAPI Protocol, Sharing Information, Para. 2.(76) FAPI Protocol, Sharing Information, Para. 2.(77) FAPI Protocol, Sharing Information, Para. 3.l.(78) FAPI Protocol, Sharing Information, Para. 3.k.(79) FAPI Protocol, Sharing Information, Para. 3.m.(80) FAPI Protocol, Sharing Information, Para. 4.(81) FAPI Protocol, Para II.4.(82) FAPI Protocol, Environment Free of Coercion. Unauthorized Contact and Promises,Para. 1.(83) FAPI Protocol, Environment Free of Coercion. Unauthorized Contact and Promises,Para. 3.(84) FAPI Protocol, Environment Free of Coercion. Unauthorized Contact and Promises,Para. 4.(85) NCIP Administrative Order, Sec. 31 (a).(86) NCIP Administrative Order, Sec. 31 (b)-(c).(87) NCIP Administrative Order, Sec. 31(d).(88) UN-REDD Guidelines, p.8.(89) Kitsumkalum Agreement , Appendix B.(90) Peru Consultation Law, Art. 15.(91) Peru Consultation Law, Art. 15.(92) IFC Standard, Objectives.(93)NCIP Administrative Order, Sec. 14 (c).(94) NCIP Administrative Order, Sec. 21.(95) NCIP Administrative Order, Sec. 22.(96) NCIP Administrative Order, Sec. 23.(97) NCIP Administrative Order, Sec. 18.(98) CBD Guidelines, Para. 21.(99) FAPI Protocol, Terms of the Agreement, Para. 1.(100) FAPI Protocol, Evidence of the Agreements and their Mandatory Nature, Para. 1.(101) Peru Consultation Law, Art. 9.(102) Peru Consultation Law, Art. 15.(103) NCIP Administrative Order, Sec. 23.(104) NCIP Administrative Order, Sec. 25.(105) NCIP Administrative Order, Sec. 32.(106) NCIP Administrative Order, Sec. 34.(107) UN-REDD Guidelines, p. 16.(108) UN-REDD Guidelines, p. 15.(109) UN-REDD Guidelines, p. 14.(110) UN-REDD Guidelines, p. 18-19.(111) FAPI Protocol, Terms of Agreement, Para. 1.(112) FAPI Protocol, Independent and Participatory Monitoring, Para. 1.(113) FAPI Protocol, Independent and Participatory Monitoring, Para. 2.(114) FAPI Protocol, Independent and Participatory Monitoring, Para. 2.

sources


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FPIC: Turning Rights Into Reality