un- reducing emissions from deforestation and forest degradation free and prior informed consent...

8/13/2019 UN- Reducing Emissions from Deforestation and Forest Degradation Free and Prior Informed Consent Guidelines

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UN-REDDP R O G R A M M E

UNEP

Empowered lives.

Resilient nations.

The UN-REDD Programme is the United Naons collaborave iniave on Reducing Emissions

from Deforestaon and forest Degradaon (REDD+) in developing countries. The Programme

was launched in 2008 and builds on the convening role and technical experse of the Food

and Agriculture Organizaon of the United Naons (FAO), the United Naons Development

Programme (UNDP) and the United Naons Environment Programme (UNEP). The UN-REDD

Programme supports naonally-led REDD+ processes and promotes the informed and meaningful

involvement of all stakeholders, including indigenous peoples and other forest-dependent

communies, in naonal and internaonal REDD+ implementaon.

January 2013


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Acknowledgements

The Guidelines were draed by Jennifer Laughlin (UNDP & UN-REDD Programme) in

consultaon with Charles McNeill, Gayathri Sriskanthan and Nina Kantcheva (UN-REDD

Programme Stakeholder Engagement Team). Signicant contribuons, with sincere

thanks, were made by Vanessa Jimnez (Forest Peoples Programme (FPP)). The UN-REDD

Programme extends its deep appreciaon to the UN Special Rapporteur on the Rights of

Indigenous Peoples, Professor James Anaya; Maia Campbell and Claire Charters (Oce

of the High Commissioner for Human Rights (OHCHR)); Kristen Hite (formerly with the

Center for Internaonal Environmental Law (CIEL) and currently with the Climate and

Land Use Alliance (CLUA)); Lisa Ogle (Environmental Legal Consultant); Leonardo Crippa

(Indian Law Resource Center (ILRC)); Joan Carling (Asia Indigenous Peoples Pact (AIPP));

Vicky Tauli-Corpuz (Tebtebba Foundaon); Nguyen Quang Tan (The Center for People

and Forests (RECOFTC)); Gary Dunning and Xiaong Hou (The Forests Dialogue); Haddy

Sey and Kenn Rapp (Forest Carbon Partnership Facility); Jenny Springer, Vanessa Retana

and Minnie Degawan (World Wildlife Fund (WWF)); and Elspeth Halverson (Consultant,

UN-REDD Programme), all of whom provided substanal input. Special thanks are also

due to the more than three hundred workshop parcipantsand contributors to the global

consultaonson the UN-REDD FPIC Guidelines, who generously lent their experse and

me in providing invaluable feedback to the draing process. In parcular, the UN-REDD

Programme greatly appreciates the contribuons from government representaves,

including from the following countries: Brazil, Cambodia, Costa Rica, Ecuador, Guatemala,

Norway, Paraguay, Republic of Congo, Sudan, Tanzania and Viet Nam. The UN-REDD

Programme would also like to acknowledge the countries that are tesng FPIC for REDD+

and/or developing naonal or sub-naonal FPIC guidelines, including: the Democrac

Republic of the Congo, Indonesia, Papua New Guinea, Solomon Islands and Viet Nam.

Status of the Guidelines

This is a Working Final version of the document, meaning that there will be periodicupdates to this version based on the applicaon of these Guidelines, increased informa-

on and experience related to the applicaon of Free, Prior and Informed Consent (FPIC)

more generally, and connued input and feedback from governments, indigenous peoples

and forest-dependent communies, praconers and experts, partners and colleagues. In

the meanme, the applicaon and interpretaon of the Guidelines in their current form is

encouraged, in order to test usability and improve on a connual basis. For more informa-

on, quesons or comments, please [email protected].
http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=8526&Itemid=53http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=8527&Itemid=53http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=8527&Itemid=53mailto:[email protected]:[email protected]://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=8527&Itemid=53http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=8527&Itemid=53http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=8526&Itemid=53


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TABLE OF CONTENTS

1. Introducon .................................................................................... 8

1.1 Objecve .............................................................................. 10

1.2 Guideline Users .................................................................... 10

1.3 Applicaon of the Guidelines ............................................... 11

1.4 Normave Framework: Human Rights-Based Approach ..... 12

2. Dening Free, Prior and Informed Consent ..................................18

2.1 Dening the Elements of FPIC .............................................. 18

3. UN-REDD Programme Policy on Applying Free, Prior

and Informed Consent ................................................................. 22

3.1 What is Required of UN-REDD Programme

Partner Countries? ............................................................... 22

3.2 When is FPIC Required? ...................................................... 24

3.3 At What Level is FPIC Applied? ............................................ 28

3.4 Who Seeks Consent?............................................................ 29

3.5 Who Gives Consent? ............................................................ 29

3.6 Outcome of the FPIC Process ............................................... 29

4. Operaonal Framework for Seeking Free, Prior and

Informed Consent ......................................................................... 32

5. Naonal-level Grievance Mechanisms .......................................... 34


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Guidelines on Free, Prior and Informed Consent

Annexes

Annex I Idenfying Indigenous Peoples ....................................... 36

Annex II Types of Parcipaon ...................................................... 41

Annex III Stakeholder Engagement: Eecve and

Equitable Gendered Parcipaon and Representaon

in Decision-Making.......................................................... 44

Annex IV Indicave Steps for a REDD+ Process to Respect

the Principle of FPIC ........................................................ 45

Annex V The Role of Facilitators in Supporng theFPIC Process .................................................................... 46

Annex VI Lessons Learned from UN-REDD Programme

FPIC Pilot Experiences ..................................................... 48

Annex VII Tools and Resources ........................................................ 50


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George Love / UN Photo


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1. INTRODUCTION

Indigenous peoples (as dened in Annex I)1and forest-dependent communies2are

essenal to the success of REDD+ given that the majority of the worlds remaining forests in

developing countries are located where they live, oen within their ancestral and custom-

ary lands, and where in most cases they have for centuries played a historical and cultur-

al role in the sustainable management of these forests with relave success, especially

in the case of indigenous peoples. Inadequate mechanisms for eecve parcipaon

of indigenous peoples and forest-dependent communies in land use decisions couldseriously compromise the delivery of both local and global benets and the long-term

sustainability of REDD+ acons and investments, as well as negavely aect internaon-

ally recognized human rights. In this respect, while cing the Human Rights Commiee,

the UN Special Rapporteur on the Right to Food explains that no peoples land, including

in parcular indigenous peoples, can have its use changed without prior consultaon. 3

He thus recommends that any changes in land use can only take place with free, prior

and informed consent and emphasizes that this is parcularly important for indigenous

communies, in view of the discriminaon and marginalizaon they have been histori-

cally subjected to.4

Recognizing the crical role of indigenous peoples and other forest-dependent communi-

es to the long-term sustainability and eecveness of REDD+, the UN-REDD Programme

has priorized stakeholder engagement from its incepon. Following a series of extensive

consultaons with indigenous peoples and forest-dependent communies, the UN-REDD

Programme developed Guidelines on Stakeholder Engagement, which have since been

harmonized with guidance from the Forest Carbon Partnership Facility (FCPF) on the

same topic. These Joint FCPF/UN-REDD Programme Guidelines on Stakeholder Engage-

ment for REDD+ Readiness with a Focus on the Parcipaon of Indigenous Peoples andOther Forest-Dependent Communies (hereaer called Joint Stakeholder Engagement

Guidelines) focus on principles for eecve parcipaon and consultaon and concrete

guidance on planning and implemenng consultaons.

A key component of eecve stakeholder engagement and consultaon is free, prior and

informed consent (FPIC). This document therefore takes the Joint Stakeholder Engagement

Guidelines one step further by outlining a normave, policy and operaonal framework

for UN-REDD Programme partner countries to seek and obtain FPIC. It will in turn support

UN-REDD Programme partner countries to apply UN-REDD Programme guidelines and

principles, undertake eecve consultaons and obtain consent as and when appropri-

ate, as determined by the partner country in consultaon with relevant rights-holders and

consistent with their dues and obligaons under internaonal law.
http://localhost/var/www/apps/conversion/tmp/scratch_3/Guidelines%20on%20Stakeholder%20Engagement%20for%20REDD+%20Readiness%20with%20a%20Focus%20on%20the%20Participation%20of%20Indigenous%20Peoples%20and%20Other%20Forest-Dependent%20Communitieshttp://localhost/var/www/apps/conversion/tmp/scratch_3/Guidelines%20on%20Stakeholder%20Engagement%20for%20REDD+%20Readiness%20with%20a%20Focus%20on%20the%20Participation%20of%20Indigenous%20Peoples%20and%20Other%20Forest-Dependent%20Communitieshttp://localhost/var/www/apps/conversion/tmp/scratch_3/Guidelines%20on%20Stakeholder%20Engagement%20for%20REDD+%20Readiness%20with%20a%20Focus%20on%20the%20Participation%20of%20Indigenous%20Peoples%20and%20Other%20Forest-Dependent%20Communitieshttp://localhost/var/www/apps/conversion/tmp/scratch_3/Guidelines%20on%20Stakeholder%20Engagement%20for%20REDD+%20Readiness%20with%20a%20Focus%20on%20the%20Participation%20of%20Indigenous%20Peoples%20and%20Other%20Forest-Dependent%20Communitieshttp://localhost/var/www/apps/conversion/tmp/scratch_3/Guidelines%20on%20Stakeholder%20Engagement%20for%20REDD+%20Readiness%20with%20a%20Focus%20on%20the%20Participation%20of%20Indigenous%20Peoples%20and%20Other%20Forest-Dependent%20Communitieshttp://localhost/var/www/apps/conversion/tmp/scratch_3/Guidelines%20on%20Stakeholder%20Engagement%20for%20REDD+%20Readiness%20with%20a%20Focus%20on%20the%20Participation%20of%20Indigenous%20Peoples%20and%20Other%20Forest-Dependent%20Communities


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This document is based on recommendaons received during three regional consultaons

on FPIC and grievance mechanisms5, held in Viet Nam (June 2010), Panama (October 2010),

and Tanzania (January 2011); and also responds to feedback received from the UN Special

Rapporteur on the Rights of Indigenous Peoples6(February 2011). The Guidelines have been

revised most recently based on recommendaons arising from comments on a dra version

received during a public consultaon period (1 December 2011 20 January 2012), an Expert

Workshop on the Guidelines in Geneva (10 11 February 2012)7, and the lessons learned

from FPIC pilot experiences undertaken by Viet Nams UN-REDD Naonal Programme and

Indonesias UN-REDD Naonal Programme, as presented at the Second UN-REDD Programme

Regional Workshop on FPIC Shared Learning in Bogor, Indonesia (19 20 April 2012).8The

Guidelines also draw on the historical experience of select cases relevant to the integraon of

FPIC into naonal strategies and acvies.9

Internaonal law has now recognized that FPIC is a legal norm imposing clear arma -

ve dues and obligaons on States (see secon 1.4 and the Legal Companion to the

UN-REDD Programe Guidelines on FPIC(hereaer called the Legal Companion)). FPIC has

been described repeatedly as a right by among others, the United Naons Human Rights

Commiee, the UN Commiee on Economic, Social, and Cultural Rights, the UN Commit-

tee on the Eliminaon of Racial Discriminaon, the UN Expert Mechanism on the Rights of

Indigenous Peoples and the UN Permanent Forum on Indigenous Peoples.10 Others feel it

is more appropriate to describe FPIC as a principle.11 Some have even referred to it both

as a right and a principle.12

The variety in terminology is understandable given that in large part, FPIC is neither an

end in itself nor a stand alone rightper se,13but if anything, a derivaveof underlyingsubstanve rights which it is designed to protect. It is a norm or standard that supple-

ments and is a means of eectuang these substanve rights.14These include the rights

to: property, parcipate, non-discriminaon, self-determinaon, culture, food, health,

and freedom against forced relocaon.15Another way of looking at it is to see FPIC as

just one of the many facets to each of these crical human rights for example, the

right to property can be described as a bundle of rights which include the right to own,

possess, control, evict, manage, and the right to choose what does or does not happen

with respect to said property (i.e. FPIC). As stated by the Commiee on Economic, Social

and Cultural Rights, States are required to respect free, prior and informed consent ofindigenous peoples in all maers covered by their specic rights.16

The Guidelines focus on FPIC is not without recognion that compelling eorts by States

to protect the underlying substanve rights are indispensable and obligatory. Indeed,

the focus of the Guidelines should not be interpreted to mean that FPIC is a cure all or

a distracon from those priority eorts. The Guidelines are merely a recognion that

the State has a duty and obligaon not only to seek FPIC, but where the circumstances

warrant, to actually secure it; thereby allowing FPIC to serve as a safeguard17, or rights-

based mechanism if you will, in the States paramount responsibility to eecvely takeall necessary measures to ensure the respect, protecon and enjoyment of all of these

underlying rights.18 These measures range from armave steps to delimit, demarcate

and tle lands, territories and resources, to clear acons to guarantee the juridical person-
http://localhost/var/www/apps/conversion/tmp/scratch_3/Legal%20Companion%20to%20the%20UN-REDD%20Programe%20Guidelines%20on%20FPIChttp://localhost/var/www/apps/conversion/tmp/scratch_3/Legal%20Companion%20to%20the%20UN-REDD%20Programe%20Guidelines%20on%20FPIChttp://localhost/var/www/apps/conversion/tmp/scratch_3/Legal%20Companion%20to%20the%20UN-REDD%20Programe%20Guidelines%20on%20FPIChttp://localhost/var/www/apps/conversion/tmp/scratch_3/Legal%20Companion%20to%20the%20UN-REDD%20Programe%20Guidelines%20on%20FPIC


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ality of indigenous peoples as collecves. In the context of the broader steps that States

are obliged to take to give eect to these substanve human rights, these Guidelines

answer a specic call by States, indigenous peoples, forest-dependent communies and

others to elaborate further upon the content of FPIC and the modalies for its implemen -

taon. Recognion and implementaon of FPIC must, however, go hand in hand withintensied eorts to ensure the full enjoyment of the underlying rights both in legisla-

on, policies and regulaons formulated and eecvely implemented with the eecve

parcipaon of the people concerned.

Whether FPIC connues to be characterized by some as a right, a derivave right, a

principle, or anything else, as discussed in these Guidelines and as demonstrated in the

Legal Companion (see below), the result is the same. No descripon changes the fact

that all the authories agree that it is a normave obligaon. It is a substanve standard

that acts like a precondion to be sased before the State and third pares may by act

or omission impact other substanve rights. It is a requirement that imposes arma -

ve dues and obligaons on States.19 This is the FPIC that is elaborated upon by these

Guidelines.

The Guidelines further recognize that there is, as of yet, no single internaonally agreed

denion of FPIC nor a one-size ts all mechanism for its implementaon. The Guidelines

are possible, however, because there is a sucient and growing consensus around what

FPIC is comprised of, and regarding the bare minimum measures that a State must take

to guarantee its respect, protecon and enjoyment. That said, the Guidelines make room

for variances across regions, countries, peoples, communies and circumstances, while

remaining vigilant to ensure that in tailoring the applicaon of the Guidelines to specic

contexts, the very nature and purpose of the obligaon itself is not undermined.

1.1 Objective

The aim of this document is to outline a normave, policy and operaonal framework for

UN-REDD Programme partner countries to seek FPIC. (While these Guidelines oen refer

to seeking consent, this is to be interpreted beyond what should be the general aspira-

on and goal of every good faith consultaon, and to also include the requirement to

actually secure that consent where the circumstances so warrant (as discussed below)).

1.2 Guideline Users

The primary users of the Guidelines will be UN-REDD Programme partner countries (who

as States are the ulmate duty bearers in this context under internaonal law) and the

indigenous peoples and forest-dependent communies in those countries, including those

with Naonal Programmes20

as well as those receiving targeted support.21

The Guidelinesapply to naonal-level acvies supported by the UN-REDD Programme. They also apply

to acvies supported by the UN partner agencies to the UN-REDD Programme in their

role as a Delivery Partner under the FCPF Readiness Fund (FAO and UNDP). That being


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said, all countries engaged in REDD+ acvies are welcome and encouraged to ulize and

apply these Guidelines and provide the UN-REDD Programme with feedback on their use.

1.3 Application of the Guidelines

Internaonal law, including various internaonal and regional human rights treaes, as

well as internaonal jurisprudence and State pracce, has repeatedly armed the right

of indigenous peoples to consultaon with the objecve of obtaining FPIC on maers

that may aect their rights and interests and the corresponding dues and obligaons of

States to respect, protect, and guarantee the enjoyment of that right (see secon 1.4 and

the Legal Companionfor an extensive, but not exhausve, list of internaonal armaons

and precedents). The Legal Companionalso demonstrates that FPIC is a legal require-

ment, not just a goal or aspiraon of consultaon, in parcular circumstances (discussed

below).

The unambiguous recognion of FPIC in internaonal law is the product of, among

other things: decades of extensive advocacy by indigenous peoples and their support-

ers; numerous legislave and judicial intervenons worldwide; increased understand-

ing regarding their historic and contemporary circumstances, systemac discriminaon,

cultures, and needs; as well as a growing collaborave relaonship between indigenous

peoples and States in the protecon and promoon of human rights and the pursuit of

sustainable rights-based economic development and conservaon.

In line with this, the Guidelines require States to recognize and carry out their dues and

obligaons to give eect to the requirement of FPIC as applicable to indigenous peoples.

The Guidelines acknowledge the right of forest-dependent communies to eecvely

parcipate in the governance of their naons. To ensure this, at a minimum the Guidelines

require States to consult forest-dependent communies in good faith regarding maers

that aect them with a view to agreement.

Appreciang that internaonal law, jurisprudence and State pracce is sll in its infancy

with respect to expressly recognizing and requiring an armave obligaon to secureFPIC from all forest-dependent communies, the Guidelines do not require a blanket

applicaon of FPIC to all forest-dependent communies.

That said, the Guidelines soberly recognize that, in many circumstances, REDD+ acvies

may impact forest-dependent communies, oen similarly as indigenous peoples, and

that the circumstances of certain forest-dependent communies may rise to a threshold

such that it should be seen as a requirement of States to secure FPIC when an acvity may

aect the communies rights and interests. This approach is consistent with the call of

the UN Human Rights Commiee, which, in 2009 while interpreng the rights to cultureof individuals belonging to minority groups under ICESCR, Arcle 27, stated:


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In the Commiees view, the admissibility of measures which substanally

compromise or interfere with the culturally signicant economic acvies of a

minority or indigenous community depends on whether the members of the

community in queson have had the opportunity to parcipate in the decision-

making process in relaon to these measures and whether they will connue tobenet from their tradional economy. The Commiee considers that parcipa-

on in the decision making process must be eecve, which requires not mere

consultaon but the free, prior and informed consent of the members of the

community. In addion, the measures must respect the principle of proporon-

ality so as not to endanger the very survival of the community and its members

(Emphasis added).22

As such, these Guidelines require States to evaluate the circumstances and nature of

the forest-dependent community in queson, on a case by case basis, through among

others a rights-based analysis, and secure FPIC from communies that share common

characteriscs with indigenous peoples23and whose underlying substanve rights are

signicantly implicated (see supra notes 9-14 and corresponding text above).

As outlined in the Report of the UN Special Rapporteur on the Rights of Indigenous

Peoples, James Anaya (6 July 2012): The parcular indigenous peoples or communies

that are to be consulted are those that hold the potenally aected rights, the consulta-

on procedures are to be devised to idenfy and address the potenal impacts on the

rights, and consent is to be sought for those impacts under terms that are protecve

and respecul of the rights. Where the rights implicated are essenal to the survival of

indigenous groups and foreseen impacts on the rights are signicant, indigenous consent

to those impacts is required, beyond simply being an objecve of consultaons.24

For the purposes of these Guidelines, the term rights-holders will refer to the

community(ies) (indigenous and/or forest-dependent) that the partner country is seeking

consent from.

1.4 Normative Framework: Human Rights-Based ApproachConsistent with other UN agencies and programmes, the UN-REDD Programme follows

a human rights-based approach to programming and policy. This approach is outlined in

the UN Common Understanding on the Human Rights-Based Approach to Development

Cooperaon (2003).25 The Common Understanding reiterates the UN commitment to

further the realizaon of human rights as laid down in the Universal Declaraon of Human

Rights and other internaonal human rights instruments by ensuring that these instru-

ments guide all development cooperaon and programming. The Common Understand-

ing underlines the essenal role of development cooperaon in supporng the capacity

of duty-bearers (e.g. States) to meet their obligaons and of rights-holders to claim their

rights (e.g. indigenous peoples and forest-dependent communies).
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The duty and obligaon of States to consult with indigenous peoples and forest-dependent

communies with a view to agreement, the requirement to obtain the FPIC of indigenous

peoples, and the growing call to secure consent from forest-dependent communies as

well, is a corollary of a myriad of universally accepted human rights, including the right

to self-determinaon, right to parcipaon, right to property, right to cultural integrityand right to equality, that are contained in numerous internaonal human rights instru -

ments.26An extensive compilaon of these instruments, as well as internaonal jurispru-

dence and evidence of State pracce can be found in the Legal Companion.

The Legal Companiondemonstrates that the specic dues and obligaons of States

and by extension the UN and its programmes to respect, protect, and promote FPIC,

parcularly in the case of indigenous peoples, is armed in numerous internaonal and

regional instruments. The requirement of FPIC is expressly recognized in the decisions of

the human rights bodies authorized to interpret these instruments and is clearly shown

to arise from the States corresponding dues and obligaons to give eect to a host of

underlying substanve rights armed by these instruments.

For example, the Convenon concerning Indigenous and Tribal Peoples in Independent

Countries (ILO No. 169) (1989) (hereinaer ILO Convenon 169) expressly provides that

indigenous peoples must be consulted whenever consideraon is being given to legislave

or administrave measures which may aect them directly and that such consultaons

shall be undertaken, in good faith and in a form appropriate to the circumstances, with

the objecve of achieving agreement or consent.27(Emphasis added). It further provides

that [w]here the relocaon of these peoples is considered necessary as an exceponal

measure, such relocaon shall take place only with their free and informed consent.28

(Emphasis added).

The Convenon on Biological Diversity(1992) also expressly arms the principle of FPIC.

Arcle 8 (j) states that [a]ccess to tradional knowledge, innovaons and pracces of

indigenous and local communies should be subject to prior informed consent or prior

informed approval from the holders of such knowledge, innovaons and pracces.

(Emphasis added).

Other internaonal instruments, such as the Internaonal Covenant on Civil and Polical

Rights (ICCPR)(1976), theInternaonal Covenant on Economic, Social and Cultural Rights

(ICESCR)(1966), and the Convenon on the Eliminaon of all Forms of Racial Discrimi-

naon (CERD)(1965), do not expressly menon indigenous peoples or FPIC, but their

UN monitoring bodies (human rights commiees) have unambiguously and repeatedly

interpreted their various provisions arming the right to culture, right to equal treatment

before the law, and right to self-determinaon, among others, to include the duty and

obligaons of States to secure consent in a myriad of circumstances.

For instance, interpreng the ICCPR the Human Rights Commiee observed with concern

that neither the existence of indigenous peoples in Togo nor their right to free, prior and

informed consent is recognized (arts. 2 and 27), and recommended that the State party

should ensure that indigenous peoples are able to exercise their right to free, prior and
http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312314http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312314http://www.cbd.int/convention/articles/?a=cbd-08http://www2.ohchr.org/english/law/cescr.htmhttp://www2.ohchr.org/english/law/cescr.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cescr.htmhttp://www2.ohchr.org/english/law/cescr.htmhttp://www.cbd.int/convention/articles/?a=cbd-08http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312314http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312314


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informed consent.29 The Commiee on Economic, Social and Cultural Rights, interpreng

the ICESCR, expressed concern that infrastructure, development and mining megaproj-

ects are being carried out in the State party without the free, prior and informed consent

of the aected indigenous and Afro-Colombian communies.... and recommended that

the State party adopt legislaon in consultaon with and the parcipaon of indigenousand Afro-Colombian people, that clearly establishes the right to free, prior and informed

consent in conformity with ILO Convenon 169 concerning Indigenous and Tribal Peoples

in Independent Countries, as well as the relevant decisions of the Constuonal Court.30

As reected in the mulple observaons and decisions of these commiees, provided

in the Legal Companion, per these treaes indigenous peoples possess a right, eectu-

ated through their own freely idened representaves or instuons, to give their prior

informed consent generally when their rights may be aected, as well as in connecon

with specic acvies, including: mining and oil and gas operaons; logging; the establish-

ment of protected areas; dams; agro-industrial plantaons; reselement; compulsory

takings; and other decisions aecng the status of land rights.31

Indeed, the United Naons Declaraon on the Rights of Indigenous Peoples (UNDRIP)

(2007) includes no less than seven (7) provisions expressly recognizing the duty of States to

secure FPIC from indigenous peoples in circumstances ranging from populaon relocaons,

the taking of cultural, intellectual, religious and spiritual property, any damages, takings,

occupaon, conscaon and uses of their lands, territories and resources; before adopng

and implemenng legislave or administrave measures; and prior to the approval of any

project aecng their lands or territories and other resources, parcularly in connecon

with the development, ulizaon or exploitaon of mineral, water or other resources.32

The UNDRIP elaborates on the applicaon to indigenous peoples of human rights already

armed extensively in treaes raed by the majority of States.33As such, to the extent that

the dues and obligaons as expressed therein are already binding on States, they merely

need to look to the Declaraon to assist them in understanding how such rights might be

protected for indigenous peoples as collecves, as well as their individual members.

Internaonal courts and human rights commissions in the African and Americas regions inparcular have also made it clear that binding regionalhuman rights treaes and conven-

ons such as the African Charter on Human and Peoples Rights (Banjul Charter)(1981) as

well as the American Convenon on Human Rights(1969) and the American Declaraon

on the Rights and Dues of Man(1948), all recognize the States dues and obligaons to

secure FPIC.

State pracce and the emerging consensus around FPIC can further be evidenced in

the growing number of public statements, reports, guidelines, and policies of mulple

UN and other internaonal instuons and special rapporteurs acknowledging FPIC as

necessary to protect and give eect to various underlying rights. A number are detailed

in the Legal Companion and they include, for instance, the United Naons Develop-

ment Group (UNDG) Guidelines on Indigenous Peoples Issues(2008) which are based on

several exisng internaonal instruments regarding indigenous peoples, including the
http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdfhttp://www.unhcr.org/refworld/type,MULTILATERALTREATY,OAU,,3ae6b3630,0.htmlhttp://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdfhttp://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htmhttp://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htmhttp://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdfhttp://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdfhttp://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdfhttp://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdfhttp://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdfhttp://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htmhttp://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htmhttp://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdfhttp://www.unhcr.org/refworld/type,MULTILATERALTREATY,OAU,,3ae6b3630,0.htmlhttp://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf


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UNDRIP and ILO Convenon 169. The UNDG Guidelines provide a policy and operaonal

framework for implemenng a human rights-based approach to development for and

with indigenous peoples. Included as a key result of such an approach is the applicaon of

FPIC in development planning and programming.

The Expert Mechanism on the Rights of Indigenous Peoples also issued a Final report on the

study on indigenous peoples and the right to parcipate in decision-making opining that:

As menoned above, the right to free, prior and informed consent is embedded

in the right to self-determinaon. The procedural requirements for consultaons

and free, prior and informed consent respecvely are similar. Nevertheless, the

right of free, prior and informed consent needs to be understood in the context of

indigenous peoples right to self-determinaon because it is an integral element

of that right.

The duty of the State to obtain indigenous peoples free, prior and informed

consent entles indigenous peoples to eecvely determine the outcome of

decision-making that aects them, not merely a right to be involved in such

processes. Consent is a signicant element of the decision-making process

obtained through genuine consultaon and parcipaon. Hence, the duty to

obtain the free, prior and informed consent of indigenous peoples is not only a

procedural process but a substanve mechanism to ensure the respect of indige-

nous peoples rights.34

Further, in the context of REDD+, although the term FPIC is not expressly referred to in the

Cancun Agreements or in the Appendix on REDD+ safeguards, FPIC is addressed indirectly

because the text note[s] that the General Assembly has adopted UNDRIP (which itself

sets out the principle of FPIC). Securing FPIC is a means to meet the Cancun Agreements

requirement of countries to promote and support respect for the knowledge and rights of

indigenous peoples and members of local communies and to ensure the full and eecve

parcipaon of relevant stakeholders, inter alia, indigenous peoples and local communies.35

FPIC also addresses the right to informaon, an essenal transparency element reected

in the Cancun Agreements safeguard on transparent and eecve forest governance

structures and a key tool to counter corrupon risks.
http://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/AEVfinalreportStudyIPRightParticipate.pdfhttp://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/AEVfinalreportStudyIPRightParticipate.pdfhttp://www.skogsinitiativet.se/upload/doc/doc98.pdfhttp://www.skogsinitiativet.se/upload/doc/doc98.pdfhttp://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/AEVfinalreportStudyIPRightParticipate.pdfhttp://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/AEVfinalreportStudyIPRightParticipate.pdf


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In addion to the strong normave case for FPIC, it also makes good business sense to

ensure that FPIC is obtained (see box below).

Conclusions reached in World Resources Instute Report on why FPIC makes

good business sense

When businesses get it right, achieving consent can benet both the

community and the project.

The business risks of going forward with a large-scale project in a community

without its acceptance can threaten commercial or nancial viability of the

project.

Community opposion can arise from impacts that are generated at any

stage in the project cycle. As a result, FPIC must be ongoing.

Addressing issues of community concern before the project begins is likely

to be more successful and cost-eecve than responding to community

opposion later on.

The risks of failing to achieve community consent are not borne exclusively

by the project sponsor, which itself may suer reputaonal harm. Other

stakeholders, such as shareholders, nanciers, and host governments can

also have their interests adversely aected by conicts that may result from

the failure to achieve community support of a project.

Mere engagement or consultaon may not be sucient to fully address these

risks. Consultaons that do not resolve a communitys reasons for opposion

or achieve consent will provide lile assurance against potenally costly and

disrupve conict.

Source: Sohn, J., (ed.) (2007), Development Without Conict: The Business Case for Community

Consent, World Resources Instute, p. 3.


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Masakazu Kashio


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2. DEFINING FREE, PRIOR AND

INFORMED CONSENT

The principles of consultaon and consent together constute a special standard that

safeguards and funcons as a means for the exercise of indigenous peoples substanve rights.

It is a standard that supplements and helps eectuate substanve rights including the right

to property and other rights that may be implicated in natural resource development.36

FPIC applies to REDD+ regarding potenal changes in resource uses that could signi -

cantly impact the substanve rights of indigenous peoples and, where relevant, otherforest-dependent communies. Under these circumstances, consistent with internaonal

human rights instruments and other treaty obligaons, potenally impacted peoples have

the right to parcipate in and consent to or withhold consent from a proposed acon.

FPIC can have the eect of reversing the historical paern of exclusion from decision-

making in order to avoid the future imposion of important decisions on indigenous

peoples, allowing them to connue to live as disnct communies on lands to which their

cultures remain aached.37

As the Legal Companion demonstrates, FPIC has been armed and elaborated uponin mulple binding regional and internaonal instruments as well as the interpretave

decisions of their monitoring bodies.

2.1 Defining the Elements of FPIC

The below denions build on the elements of a common understanding of free, prior

and informed consent endorsed by the UNPFII at its Fourth Session in 2005.38

Free

Free refers to a consent given voluntarily and absent of coercion, inmidaon or manipu-

laon.39 Free refers to a process that is self-directed by the community from whom

consent is being sought, unencumbered by coercion, expectaons or melines that are

externally imposed:

Stakeholders determine process, meline and decision-making structure;

Informaon is transparently and objecvely oered at stakeholders request;

Process is free from coercion, bias, condions, bribery or rewards;

Meengs and decisions take place at locaons and mes and in languages and

formats determined by the stakeholders; and


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All community members are free to parcipate regardless of gender, age or

standing.

Prior

Prior means consent is sought suciently in advance of any authorizaon or commence-

ment of acvies.40Prior refers to a period of me in advance of an acvity or process

when consent should be sought, as well as the period between when consent is sought and

when consent is given or withheld. Prior means at the early stages of a development or

investment plan, not only when the need arises to obtain approval from the community.41

Prior implies that me is provided to understand, access, and analyze informaon

on the proposed acvity. The amount of me required will depend on the decision-

making processes of the rights-holders;

Informaon must be provided before acvies can be iniated, at the beginning or

iniaon of an acvity, process or phase of implementaon, including conceptual-

izaon, design, proposal, informaon, execuon, and following evaluaon; and

The decision-making meline established by the rights-holders must be respected,

as it reects the me needed to understand, analyze, and evaluate the acvies

under consideraon in accordance with their own customs.

Informed

Informed refers mainly to the nature of the engagement and type of informaon that should

be provided prior to seeking consent and also as part of the ongoing consent process.

Informaon should:

Be accessible, clear, consistent, accurate, constant, and transparent;

Be delivered in appropriate language and culturally appropriate format (including

radio, video, graphics, documentaries, photos, oral presentaons);

Be objecve, covering both the posive and negave potenal of REDD+ acvies

and consequences of giving or withholding consent;

Be complete, covering the spectrum of potenal social, nancial, polical, cultural,

environmental impacts, including scienc informaon with access to original

sources in appropriate language;

Be delivered in a manner that strengthens and does not erode indigenous or local

cultures;

Be delivered by culturally appropriate personnel, in culturally appropriate locaons,

and include capacity building of indigenous or local trainers;

Be delivered with sucient me to be understood and veried;

Reach the most remote, rural communies, women and the marginalized; and

Be provided on an ongoing and connuous basis throughout the FPIC process.


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Consent

Consent refers to the collecve decision made by the rights-holders and reached through

the customary decision-making processes of the aected peoples or communies.

Consent must be sought and granted or withheld according to the unique formal or

informal polical-administrave dynamic of each community.42

Consent is:

A freely given decision that may be a Yes or a No, including the opon to

reconsider if the proposed acvies change or if new informaon relevant to the

proposed acvies emerges;

A collecve decision determined by the aected peoples (e.g. consensus, majority,

etc.) in accordance with their own customs and tradions;

The expression of rights (to self-determinaon, lands, resources and territories,

culture); and

Given or withheld in phases, over specic periods of me for disnct stages or

phases of REDD+. It is not a one-o process.

While the objecve of consultaon processes shall be to reach an agreement (consent)

between the relevant pares, this does not mean that all FPIC processes will lead to the

consent of and approval by the rights-holders in queson. At the core of FPIC is the right

of the peoples concerned to choose to engage, negoate and decide to grant or withholdconsent, as well as the acknowledgement that under certain circumstances, it must be

accepted that the project will not proceed and/or that engagement must be ceased if the

aected peoples decide that they do not want to commence or connue with negoa-

ons or if they decide to withhold their consent to the project.


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FPIC facilitator explaining climate change and REDD+ to women during FPIC pilot in Lam Dong

Province, Viet Nam, 2010. (Photo credit: Nguyen Thi Thu Huyen)


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3. UNREDD PROGRAMME POLICY

ON APPLYING FREE, PRIOR AND

INFORMED CONSENT

3.1 What is Required of UN-REDD Programme Partner Countries?

As outlined in the UN-REDD Programme Handbook for Naonal Programmes and Other Naon-

al-Level Acvies,43 the FCPF/UN-REDD Readiness Preparaon Proposal (R-PP) Template,44

and the Joint Stakeholder Engagement Guidelines, partner countries are required to develop

consultaon and parcipaon plans for engagement of stakeholders. This is consistent with the

increasing adopon at the domesc level of such plans, policies and laws that have been calledfor pursuant to internaonal treaes and convenons.45

Naonal Programme implemenng partners (naonal counterparts and UN organizaons)

should ensure that FPIC is incorporated into these consultaon plans during the Naonal

Programme Document (NPD) Scoping/Finalizaon and/or R-PP Formulaon phase, and carried

out in the NPD Implementaon/Readiness Preparaon phase. See the table below for indicave

steps for ensuring provisions for the applicaon of FPIC are considered and incorporated into the

naonal REDD+ process.

In accordance with the guidance provided in the Joint Stakeholder Engagement Guidelines,

prior to the development of a REDD+ programme/acvity, indigenous peoples living in voluntary

isolaon who may be aected should be idened in consultaon with the relevant enes at

the naonal, sub-naonal and/or local levels to ensure that the programme/acvity is developed

in a way that avoids contact with these communies, including any aempts to contact them

for purposes of consultaon or obtaining their consent. Indigenous peoples living in voluntary

isolaon are considered to have exercised their rights to eecve parcipaon and consultaon

and as a result of their condion decided to withhold their consent and choose not to enter into

consultaons. This decision should be respected and all contact avoided.46


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Indicave Steps for Ensuring Provisions for the Applicaon of FPIC are Considered andIncorporated into the Naonal REDD+ Process

Stage Acvity

NPD Scoping +Finalizaon/ R-PPFormulaon

The NPD/R-PP should outline the Naonal Programmes proposal toundertake the following in the Readiness Phase of the process: For mapping the substanve rights of indigenous peoples and

where applicable, forest-dependent communies, that may beaected by REDD+ acvies and therefore require FPIC to protectsaid rights;

For consulng on key issues related to the naonal applicaon ofFPIC;

To determine who gives consent (e.g. through a rights-holdermapping);

To determine the possible acvies requiring FPIC (e.g. throughrights-impact and other assessments);

To determine when (ming) the FPIC will be sought; To determine operaonal steps for applying FPIC (e.g. develop a

naonal methodology/guidelines for applying FPIC).Note: In cases where the NPD or R-PPs have already been approved,partner countries should incorporate a proposal for these acviesretroacvely into their NPD/R-PP, as part of their stakeholderengagement plans and/or SESA, for review by the NaonalProgramme Steering Commiee (or equivalent).

NPDImplementaon/ Readiness

Preparaon

Undertake acvies as outlined in NPD/R-PP (as outlined above). Develop Naonal FPIC Guidelines / Methodology, including the

following elements, based on a consultaon process (as outlined

above): Internaonal and naonal legal basis for FPIC in the country; Principles for undertaking FPIC processes; Mapping of rights-holders; Which acvies will require FPIC; How FPIC will be applied at the community level (discreet

acvies with impacts to specic communies); and How FPIC will be applied at the naonal level (concerning

policy, legal or administrave measures with impacts onseveral non-specic communies).

Incorporate Naonal FPIC Guidelines / Methodology into Naonal

REDD+ Strategy. Naonal REDD+ Strategy must recognize the dues and

obligaons of States to secure FPIC from indigenous peoplesand where applicable, other forest-dependent communies (asidened in the rights-holder mapping).

In the development of Naonal REDD+ Strategies, wherespecic policies and determinaons are being formulated in thedevelopment of the Naonal Strategy and may aect indigenouspeoples rights, especially their rights to own, use and controltheir lands, resources and territories, to ensure their tradionallivelihoods or survival, or to be free from forced relocaons,to their self-determinaon, culture and equality before law,partner countries shall consult and cooperate in good faith withthe rights-holders concerned through their own representaveinstuons in order to obtain their FPIC prior to nalizing theNaonal REDD+ Strategy.


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Indicave Steps for Ensuring Provisions for the Applicaon of FPIC are Considered andIncorporated into the Naonal REDD+ Process

Stage Acvity

Implementaonof NaonalREDD+ Strategy

Applicaon of naonal and/or sub-naonal FPIC Guidelines.

Indicave Steps for Developing Naonal FPIC Guidelines

1. Idenfy the relevant principles for the guidelines: The countrys obligaons under naonal and internaonal law; and UN-REDD Programme FPIC Guidelines.

2. Idenfy any exisng processes for consultaon and consent concerning relevantstakeholders land and land use planning or natural resource development, and

analyze the strengths and weaknesses of these processes: For example, are they being properly followed? Where is the exisng system

breaking down? Are these systems eecve in protecng the rights of indigenous peoples and

other forest-dependent communies?

3. Develop rst dra of FPIC guidelines: Ensure that there is a process of public consultaon and validaon by

stakeholders on the guidelines; and Include any actors which are likely to be involved in implemenng the

guidelines, such as local or naonal forestry authories.

4. Field test dra FPIC guidelines at a pilot site: This should preferably be done where there is a concrete proposal which

requires consent from the local rights-holders.

5. Independently evaluate the eld test.

6. Amend the dra FPIC guidelines, as necessary: Undertake a validaon process with all stakeholders.

7. Consider how the FPIC guidelines could be formalized: For example, by adopng the principle of FPIC in legislaon, and considering

how the guidelines could be integrated into a broader regulatory scheme forREDD+.

3.2 When is FPIC Required?

The specic characteriscs of the consultaon procedure that is required will necessarily

vary depending upon the nature of the proposed measure and the degree to which it may

impact underlying rights.47

The UNDRIP recognizes several situaons in which the State is under an obligaon to

not just seek, but secure the consent of the indigenous peoples concerned. Parcularly

relevant to the UN-REDD Programme, States must consult and cooperate in good faithwith the indigenous peoples concerned through their own representave instuons in

order to obtain their free and informed consent prior to:


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i. Relocang an indigenous populaon from their lands;

ii. Taking cultural, intellectual, religious and spiritual property;

iii. Causing damages, takings, occupaon, conscaon and uses of their lands,

territories and resources;

iv. Adopng and implemenng legislave or administrave measures; and

v. Approving any project aecng their lands or territories and other resources,

parcularly in connecon with the development, ulizaon or exploitaon of

mineral, water or other resources.48

As menoned above, the relevant UN monitoring bodies have interpreted a number of

binding convenons and treaes, including the ICCPR, the ICESCR and the CERD as arm -

ing that States must secure consent from indigenous peoples through their own freely

idened representaves or instuons, more generally with respect to any decisionsdirectly relang to their rights and interests and in connecon to: mining and oil and gas

operaons (extracon of subsurface resources); logging; the establishment of protected

areas; construcon of dams; development of agro-industrial plantaons; reselement;

compulsory takings; and any other decisions aecng the status of their land rights.49

The Convenon on Biological Diversity provides that FPIC is required before access[ing]

tradional knowledge, innovaons and pracces of indigenous and local communies.50

The African Court of Human Rights, interpreng State obligaons under the Banjul Charter

has found that States are required to secure consent in the event of any development or

investment projects that would have a major impact within the territory of indigenous

peoples.51

In the same vein, the Inter-American Court of Human Rights has held that consent was

required in the cases of development, investment, exploraon or extracon plan[s]

(dened as development and investment plans[s]) and specically large-scale

development or investment projects that have a signicant impact on the right of use

and enjoyment of [tribal] ancestral territories.52The Court also described it in terms

of major development or investment plans that may have a profound impact on theproperty rights.53

The Inter-American Commission on Human Rights has also armed the need for FPIC in

cases involving relocaon of indigenous peoples.54Similarly, inAwas Tingni Community v.

Nicaragua, the Inter-American Court found in favor of the community where the Nicara-

guan government had granted a natural resource concession on community lands without

consent55and violated the communitys property rights over their communal lands (which

were not ocially tled or otherwise recognized by the State).56

The Internaonal Finance Corporaon has found it useful to specically enumerate the

acvies that require FPIC in the latest dra of its Policy and Performance Standards

related to indigenous peoples. The new standards state that not only must consultaon

be undertaken, but also the FPIC of indigenous peoples must be obtained, if the proposed


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acvies (i) are to be located on or make commercial use of natural resources on lands

subject to tradional ownership and/or under customary use by indigenous peoples; (ii)

require relocaon of indigenous peoples from tradional or customary lands; or (iii)

involve commercial use of indigenous peoples cultural resources.57

The European Bank for Reconstrucon and Development, in its Environmental and Social Policy

recognizes the principle, outlined in the UN Declaraon on the Rights of Indigenous Peoples,

that the prior informed consent of aected Indigenous Peoples is required for project-related

acvies that the policy specically lists out to include: (i) if a project aects the es indige-

nous peoples have to their customary lands and its forests, water, wildlife, and other natural

resources; (ii) if there is a proposal to locate the project on, or commercially develop natural

resources located within, customary lands under use, and adverse impacts can be expected on

the livelihoods, or cultural, ceremonial, or spiritual uses that dene the identy and community

of the Indigenous Peoples; (iii) when relocaon is unavoidable then before such relocaon

occurs; and (iv) where a project proposes to use the cultural resources, knowledge, innova-

ons, or pracces of Indigenous Peoples for commercial purposes.58

In light of the above, a rst step for partner countries in determining whether consent

should be sought is to carefully consider, in collaboraon with relevant rights-holders,

whether the proposed acvity/policy will impact their rights, lands, territories and/or

resources such to trigger one or more of the circumstances described above.

In doing so, consistent with internaonal law and jurisprudence such as those cited

above, partner countries might consider that what constutes a signicant impact couldbe that which merely aects indigenous peoples rights and interests as opined by the

Human Rights Commiee as well as the CERD Commiee (see Legal Companion). The

Inter-American Court of Human Rights also armed the following:

there are acceptable levels of impact a proposed development plan may have

on Indigenous Peoples..., as long as that impact does not amount to a denial of

their survival... [W]hen the Court uses the term survival it does not refer only to

the obligaon of the State to ensure the right to life of the vicms, but rather to

take all the appropriate measures to ensure the connuance of the relaonship ofthe Saramaka People with their land or their culture.59

In terms of determining what lands, territories, and resources might be subject to the

consent standard, it is important to recognize that communal property rights based on

tradional use, culture, and customary laws must be respected whether or not they

are explicitly recognized by the naonal government.60 Furthermore, in the case of the

Saramaka peoples, the Court was very clear that [u]nl the demarcaon and tling of

indigenous peoples lands are completed the State must refrain from acng or authoris-

ing others to aect the existence, value, use or enjoyment of such territory ... unless

the State obtains the free, prior and informed consent of the [indigenous]...people.61

The Inter-American Commission on Human Rights has found that this principle applies,

stang that States cannot grant concessions for the exploraon or exploitaon of natural


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resources that are located in territories which have not been delimited, demarcated or

tled, without eecve consultaons with and the informed consent of the people. 62

Based on the above sources outlining when FPIC is required, the UN-REDD Programme

has developed the below checklist to support partner countries in thinking through

whether or not an acvity will require FPIC in the context of their REDD+ work. This is not

necessarily an exhausve list, but a useful source for partner countries.

CHECKLIST FOR APPRAISING WHETHER AN ACTIVITY WILL REQUIRE FPIC Yes/No

1. Will the acvity involve the relocaon/reselement/removal of anindigenous populaon from their lands?

2. Will the acvity involve the taking, conscaon, removal or damage ofcultural, intellectual, religious and/or spiritual property from indigenous

peoples / forest-dependent community?

3. Will the acvity adopt or implement any legislave or administravemeasures that will aect the rights, lands, territories and/or resourcesof indigenous peoples / forest-dependent community (e.g. in conneconwith the development, ulizaon or exploitaon of mineral, water orother resources)?

4. Will the acvity involve mining and oil and/or gas operaons (extraconof subsurface resources) on the lands/territories of indigenous peoples /forest-dependent community?

5. Will the acvity involve logging on the lands/territories of indigenouspeoples / forest-dependent community?

6. Will the acvity involve the development of agro-industrial plantaonson the lands/territories of indigenous peoples / forest-dependentcommunity?

7. Will the acvity involve any decisions that will aect the status ofindigenous peoples / forest-dependent communitys rights to theirlands/territories or resources?

8. Will the acvity involve the accessing of tradional knowledge,innovaons and pracces of indigenous and local communies?

9. Will the acvity involve making commercial use of natural and/orcultural resources on lands subject to tradional ownership and/or under customary use by indigenous peoples / forest-dependentcommunity?

10. Will the acvity involve decisions regarding benet-sharingarrangements, when benets are derived from the lands/territories/resources of indigenous peoples / forest-dependent community?

11. Will the acvity have an impact on the connuance of the relaonship ofthe indigenous peoples/forest dependent community with their land or

their culture?


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If the answer is Yes to any of these quesons, it is likely that FPIC will be required of the

potenally aected peoples for the specic acvity that may result in the impacts iden-

ed in the quesons.

In order to further support partner countries to determine which acvies may require

FPIC, the UN-REDD Programme is exploring a means to assess and manage human rights

risks and impacts associated with UN-REDD Programme acvies, such as a human

rights impact assessment (HRIA). An HRIA could support partner countries to idenfy

potenally aected stakeholders and their composion including who the rights-holders

are and which rights they are entled to. As a starng point, the UN-REDD Programme

will review and learn from the Internaonal Finance Corporaons (IFC) Guide to Human

Rights Impact Assessment and Management, and other relevant tools.

3.3 At What Level is FPIC Applied?

Given that an FPIC process oen concerns a specic proposed acvity with potenal

impacts on a specic community, and that consent is given or withheld collecvely by the

community, FPIC is most oen applied at the community level.

As menoned in the table above, however, components of a naonal REDD+ strategy

may have implicaons for the rights of indigenous peoples or other forest-dependent

communies (e.g. proposed legislaon related to changes in land tenure or agreements

on benet sharing, etc.) and therefore at least those components require some form of

consent.

Therefore, in the development of naonal REDD+ strategies, partner countries must guarantee

eecve, good faith consultaons with indigenous peoples and forest-dependent communies

with a view to reaching agreement in the validaon phase. However, where specic policies

and determinaons are being formulated in the development of the naonal REDD+ strategy

and may aect indigenous peoples rights and interests and, where relevant, forest-dependent

communies rights, especially their rights to self-determinaon; to own, use and control their

lands, resources and territories; to their culture; to their health and environment, to ensure their

tradional livelihoods or survival; to their equality before the law; or to be free from forced reloca-

ons, FPIC of the rights-holders through representave instuons shall be required under these

Guidelines. The partner country will have a duty and obligaon to secure FPIC as a mechanism

to ensure the protecon and eecve enjoyment of the underlying substanve rights at issue.

Where specic policies and determinaons are being formulated in the development of

a naonal REDD+ strategy and may have more direct impact on a specic community,

representaon of these communies should be ensured.

Consent at the naonal level (e.g. for a naonal REDD+ strategy) does not remove theStates duty and obligaon to secure FPIC at the community level for a specic proposed

acvity (aer the approval of a naonal REDD+ strategy).
http://www.guidetohriam.org/welcomehttp://www.guidetohriam.org/welcomehttp://www.guidetohriam.org/welcomehttp://www.guidetohriam.org/welcome


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3.4 Who Seeks Consent?

The Naonal Implemenng Partner63, as designated in the NPD64is responsible for seeking

consent. The Naonal Implemenng Partner should designate more specically who

(e.g. ministry, department, instuon, local authority) is responsible for seeking consent

for each acvity idened as requiring consent in the Consultaon Plan. The duty and

responsibility to secure consent ulmately belongs to the State. This obligaon cannot be

delegated to a third party/private party.

3.5 Who Gives Consent?

Partner countries are required to seek FPIC from rights-holders which will be aected

by the decision/policy/acvity in queson. In determining which communies are

indigenous, the partner country should refer to the denions of indigenous peoples inAnnex I. As evidenced by Annex I, the partner countrys own recognion or idenca-

on of the community as indigenous peoples shall not be the disposive factor. As

such, the determinaon shall not be dependent on whether the naonal government has

recognized the subject community an indigenous peoples.65

Partner countries should engage the rights-holders through their own representave instu-

ons and those representaves chosen by the peoples themselves in accordance with their

own procedures.66 While respecng the norms, values and customs of the peoples and

communies in queson and the consultaon and decision-making methods they ulize, it

is strongly encouraged that all customary and formal rights-holders be represented in the

decision-making process, especially women.67Note, under human rights law (e.g. the Conven-

on on the Eliminaon of All Forms of Discriminaon against Women (CEDAW)) and the

UNDRIP, women have the right to equality in the exercise of the right of indigenous peoples to

parcipate in both internal and external decision-making processes and instuons.68

It is recommended that the partner country secure from the rights-holders the idenca-

on of the specic individuals or enes with the authority to negoate as well as those

individuals or enes with the authority to make decisions on behalf of the people or

community. Bear in mind that those with the authority to negoate may not always be

the same individuals or enes with the power to decide.

3.6 Outcome of the FPIC Process

The FPIC process and outcome should be well-documented in wring and made publicly

available. The wrien document should clarify if consent was provided or withheld and it

should arm that the decisions therein are binding and enforceable.

Note, it is important to document the whole FPIC process, including ideas, quesons and

concerns raised, so that it is possible to review the whole process in the event a grievance or

dispute arises. However, documenng sensive issues can be dicult. The rights-holders

should be asked what is sensive and what is not, and what it is permissible to document.


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It is also important to revert back to the rights-holders to inform them of the outcome

of the FPIC consultaon. Not all people in the community might have parcipated in the

consultaon, yet all community members should be informed of the outcome.

The territories and resources of the rights-holders in queson which are not subject to the

consent should not be included in the proposed REDD+ policy/acvity.

Rights-holders may choose to grant their consent on the basis of certain condions (e.g.

benets connue to be derived from the project, restricons on access to certain areas,

limitaons on contact with certain sectors of society or members living in voluntary

isolaon, etc.). If these condions are not met, the community may review and either

rearm or refuse consent. This opon may be invoked at any stage of programme

implementaon. Consent is an iterave process.

Given the signicant me and resources that may have been invested during the process,the rights-holders should not be able to withdraw consent arbitrarily; thus, if the condions

upon which the original consent was based are being met, ongoing consent is implied. If

there is disagreement over whether condions are being met or not, communies can

express their grievance with the relevant naonal-level grievance mechanism (which may

have funcons at the community/sub-naonal level).


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Yosef Hadar / World Bank


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4. OPERATIONAL FRAMEWORK

FOR SEEKING FREE, PRIOR AND

INFORMED CONSENT

Below is an outline of steps that should be undertaken by partner countries when seeking

FPIC in a community or territory.69

a. Partner countries, in collaboraon with relevant rights-holders, and taking into

account the dues and obligaons under internaonal law, will undertake an FPIC

Scoping Review, including the following components:

A descripon of the proposed policy or acvity;

A descripon of the rights-holders, their governance structures and how they wish

to be engaged, including the instuons and individuals that are empowered to

represent them;

A descripon of the legal status of the land, territory and resources concerned,

including a descripon of the geographical area under formal, informal and/or

customary use by the rights-holders (including whether women have access to

formal, informal and/or customary use of lands and resources), including maps and

methodology used to establish the maps;

An assessment of the social, environmental, and cultural impacts of the proposed

policy/ acvity on the rights-holders, including the specic impacts that have

required the partner country to seek FPIC and how these impacts will be migated;

An assessment of the substanve rights of the peoples concerned, as armed in

domesc and internaonal law, that may be aected by the proposed policy/acvity;

and

Resources allocated for seeking FPIC.

Special aenon should be paid by partner countries to supporng community eorts to

describe many of these items in their own terms, including tradional uses of their lands,

territories and natural resources and community-based property rights.70

Consultaons on the FPIC Scoping Review should be undertaken unl it has been mutually

agreed upon.


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b. Once the FPIC Scoping Review has been mutually agreed upon, the partner country, in

consultaon with the rights-holders, should develop an FPIC Proposal that outlines the

proposed process to seek FPIC, including the following components:

Capacity and informaon needs of the Naonal Implemenng Partner and/or rights-

holders that need to be addressed before the FPIC process can take place;

A designaon of whether the process will require a facilitator and, if so, who it should be;71

Where and how the consultaons will take place;

A meline for the proposed consultaon process to seek FPIC;

The appropriate language and media for informaon sharing and distribuon;

How decisions will be taken by the community in accordance with their tradions and

customs, and whether special measures have to be adopted to ensure the parcipaon of

women and other vulnerable groups within the community;

The geographical territory and communies that the decision will cover;

How FPIC will be given, recognized and recorded;

The role of others in the process (if any), including local government ocials, UN

agencies, instuons, donors, independent observers (strongly recommended) and

other stakeholders;

Methods of verifying the process including, where relevant, parcipatory monitoring

arrangements;

Terms and frequency of review of the agreement(s) to ensure that condions are being

upheld; and

Process for voicing complaints and seeking recourse on the FPIC process and proposed

policy or acvity.

Mechanisms for ongoing dialogue, parcipaon, decision-making and consent throughout the

various phases of the acvity or project should be established and idened clearly between the

State and aected peoples and communies, including how those processes will be maintained

throughout, for example, the development, assessment, planning, implementaon, oversight,monitoring, dispute resoluon, and closure stages of the project. Such processes can avoid

misunderstandings in the future.

As long as the rights-holders in queson maintain their interest in negoang (as there is no legal

requirement that they negoate), the consultaons on the FPIC Proposal should be undertaken

unl it has been mutually agreed upon. The FPIC Scoping Review and FPIC Proposal should be

combined into one document and signed (or agreed upon in a culturally appropriate manner)

by all relevant pares. Once this document has been signed/agreed upon, the FPIC process can

proceed as outlined in the Proposal.

c. An independent evaluaon should be undertaken by an instuon, to be mutually agreed

by all relevant rights-holders, to verify that the process was aligned with the denion of

each of the terms of the FPIC Process outlined in secon 2 above.72


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5. NATIONALLEVEL GRIEVANCE

MECHANISMS

As outlined in Aachment 4 of the R-PP:

The complexity of issues and diversity of stakeholders engaged may lead to

numerous quesons, inquiries, and potenally grievances about the REDD-plus

strategy or process. A grievance mechanism is part of the countrys REDD+ manage-

ment framework. Such a mechanism needs to be available to stakeholders early

in the R-PP implementaon phase, in order to be ready to handle any request forfeedback or complaint that stakeholders may have about Readiness acvies.

A grievance mechanism is a process for receiving and facilitang resoluon of

queries and grievances from aected communies or stakeholders related to

REDD-plus acvies, policies or programs at the level of the community or country.

Typically, these mechanisms focus on exible problem solving approaches to dispute

resoluon through opons such as fact nding, dialogue, facilitaon or mediaon.

Designed well, a feedback and grievance mechanism should improve responsive-

ness to cizen concerns, help idenfy problems early, and foster greater trust

and accountability with program stakeholders. Addionally data on complaints or

feedback can be used to improve program performance.

Eecve grievance redress mechanisms should address concerns promptly and fairly,

using an understandable and transparent process that is culturally appropriate and

readily accessible to all segments of the aected stakeholders, and at no cost and

without retribuon or impeding other administrave or legal remedies. Eecve

grievance redress mechanisms are also typied by a number of characteriscs, such

as mulple grievance uptake locaons and mulple channels for receiving grievances;

prompt, clear, and transparent processing guidelines (including reviewing procedures

and monitoring systems); the availability of a variety of dispute resoluon approaches

for exible response to specic grievances; and an eecve and mely system for

informing complainants of the acon taken. If appropriate, the grievance mechanism

should provide special provisions for women, and the youth.

The naonal-level grievance mechanism established in the context of REDD+ will be crical

to ensuring grievances and disputes are addressed in a proper manner, including in FPIC

processes. To beer support partner countries, the UN-REDD Programme is preparing a

Guidance Note that will outline in more detail indicave principles and a methodology forstrengthening and/or establishing naonal-level grievance mechanisms.


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Bill Ciesla / FAO

FPIC village facilitator talking to a community member during the FPIC

pilot in Lam Dong province. (Photo credit: Nguyen Thi Thu Huyen)


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ANNEX I:

IDENTIFYING INDIGENOUS PEOPLES73

There is no one denion of indigenous peoples, but the term74has become a general denomi-

nator for disnct peoples who, throughout history, have been pursuing their own concept and

way of human development in a given socio-economic, polical and historical context. Oen

for centuries, these disnct groups of peoples have tried to maintain their group identy,

languages, tradional beliefs, worldviews and ways of life and, most importantly, the control

and management of their lands, territories and natural resources with which they have a

special connecon, and upon which their physical and cultural survival as indigenous peoplestypically depends. In many cases these individuals self-idenfy as indigenous peoples and

oen their existence pre-dates those that colonized the lands within which they were found

or disposed them of the lands, territories and resources they tradionally held.

Who are indigenous peoples?

The internaonal community has not adopted a common denion of indigenous peoples,

but the prevailing view today is that no formal universal denion is necessary for the recogni-

on and protecon of their rights. Indeed, while the dra American Declaraon on the Rights

of Indigenous Peoples has deliberated on possible denions --a task arguably easier when

addressing a single connent whose historic experiences with indigenous peoples have

greater internal consistency-- the maer was discussed and treated dierently in the context

of the United Naons Declaraon on the Rights of Indigenous Peoples (UNDRIP) in light of the

multude of experiences spanning across the connents and the globe. Represenng the

prevailing view, the UNDRIP is armavely endorsed now by 148 States (with 11 abstenons).

The absence of a denion with listed criteria or factors has not been a hindrance,

however, as there are a number of denions and descripons that have emerged over

me and become commonly accepted and ulized. For instance, the famous Study of theProblem of Discriminaon against Indigenous Populaons(the Marnez Cobo Study)

oered one of the earliest working denions sll referred to by many today. The

Marnez Cobo Study provided that:

Indigenous communies, peoples and naons are those which, having a histori-

cal connuity with pre-invasion and pre-colonial sociees that developed on their

territories, consider themselves disnct from other sectors of the sociees now

prevailing in those territories, or parts of them. They form at present nondominant

sectors of society and are determined to preserve, develop and transmit to futuregeneraons their ancestral territories, and their ethnic identy, as the basis of their

connued existence as peoples, in accordance with their own cultural paerns,

social instuons and legal systems.75


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The ILO Convenon 169 applies to:

Tribal peoples whose social, cultural and economic condions disnguish them from

other secons of the naonal community, and whose status is regulated wholly or

parally by their own customs or tradions or by special laws or regulaons.

Peoples who are regarded as indigenous on account of their descent from thepopulaons which inhabited the country, or a geographical region to which the

country belongs, at the me of conquest or colonizaon or the establishment of

present state boundaries and who, irrespecve of their legal status, retain some or

all of their own social, economic, cultural and polical instuons.76

The Convenon also states that self-idencaon as indigenous or tribal shall be regarded

as a fundamental criterion for determining the groups to which the provisions of this

Convenon apply.77

The Working Paper on the Concept of Indigenous Peopleprepared by the Working Groupon Indigenous Populaons lists the following factors that have been considered relevant

to the understanding of the concept of indigenous by internaonal organizaons and

legal experts, but again repeang the noon of self-idencaon:

Priority in me, with respect to the occupaon and use of a specic territory;

The voluntary perpetuaon of cultural disncveness, which may include the

aspects of language, social organizaon, religion and spiritual values, modes of

producon, laws and instuons;

Self-idencaon, as well as recognion by other groups, or by State authories, as

a disnct collecvity; and

An experience of subjugaon, marginalizaon, dispossession, exclusion or discrimi-

naon, whether or not these condions persist.78

Self-idencaon as indigenous or tribal is considered a fundamental criterion and this

is the pracce followed in the United Naons and its specialized agencies, as well as in

certain regional intergovernmental organizaons.79Arcle 33 of the UNDRIP refers to the

rights of indigenous peoples to decide their own idenes and memberhip procedures.


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Understanding who indigenous peoples are:

They idenfy themselves as indigenous peoples and are, at the individual

level, accepted as members by their community;

They have historical connuity or associaon with a given region or part of

a given region prior to colonizaon or annexaon;

They have strong links to territories and surrounding natural resources;

They maintain, at least in part, disnct social, economic and polical

systems;

They maintain, at least in part,