Free, prior, and informed consent (FPIC) and Community solutions
Energy and other extractive projects and related infrastructure, whether of fossil fuels or renewables, involve the land, territory, and natural resources of the people whose lives and livelihoods depend on these spaces. While the International Labour Organization (ILO) Convention 169 enshrines the participation and consultation rights of indigenous and tribal peoples specifically, the rights of indigenous peoples to participate in decisions made about their ancestral lands is an issue broadly accepted in international law.
Accordingly, numerous bodies from theUnited Nationsto theWorld Bank,as well as States throughout the world, recognizethe right of any person affected by an extractive or infrastructure project— let alone any governmental decision —to free, prior, and informed consent before any permitting, development, or operational steps have been taken.
To be clear, the challenge to this right and the gap in its implementation are substantial: the corporate capture of the legislative, regulatory, and judicial enforcement mechanisms of both States and multilateral institutions insofar as ensuring meaningful compliance with FPIC. As opposed to “free,” “prior,” “informed,” and “consent” being absolute rights that effectively give communities veto power over projects, the default paradigm for States and companies promoting certain models of development is to treat these as checkbox exercises without allowing for meaningful community participation. Most often, States and companies prepare and even initiate projects ahead of time without ever consulting communities — let alone obtaining their consent.
In this regard,FPIC is a pivotal issue in international development— namely the energy transition — and a huge opportunity for rightsholders, corporate accountability advocates, and other stakeholders to ensure that the transition is just insofar as the land, territorial, and natural resources rights of affected peoples are concerned.
Somehigh-level opportunitiesand strategies that flow from FPIC include:
- Community and worker equity in development projects
- Community-based natural resource management
- Community-driven human rights due diligence
- Due diligence laws in both home and host countries
- Strategic litigation
Shared equity
One example of moving the needle on FPIC is First Peoples Worldwide, an independent organization housed at the University of Colorado Boulder’s Center for Native American and Indigenous Studies,in partnership between theUniversity of Colorado Law Schooland theCenter for Ethics and Social Responsibility at the Leeds School of Business,that integrates indigenous peoples’ perspectives into investment decision-making and leads a sustainable minerals and green transition coalition.
“Through our extensive work to accelerate respect for Indigenous Peoples in the capital markets, First Peoples Worldwide (First Peoples) has formed vital partnerships with impact investors and has seen the enormous potential of collaboration between investors and Indigenous Peoples to catalyze meaningful change in both local communities as with institutional approaches to Indigenous Peoples.”
According toBusiness and Human Rights Resource Centre,thecore principles that should guidea fast and fair energy transition are:
- “Shared Prosperity: Effective business models driving fast transitions will build trust and stability and reduce systemic risk through shared prosperity models that build worker and community rights and participation in companies’ operations and supply chains, including co-equity models.
- Duty of Care in Human Rights and Social Protection: Governments and companies have a duty of care to shield workers and communities from harm; to deliver due diligence to minimise human rights and pollution risks; and to ensure social protection, retraining and new decent work.
- Fair Negotiations: Communities and workers need guarantees that negotiations will be fair throughout operation’s life-cycles. They will include community consultation and implementation of the principles of FPIC for Indigenous peoples and peasant communities; and guarantees that workers, Indigenous and community leaders (human rights and environmental defenders) will not be silenced through intimidation or violence.”
Anti-corruption in community-based natural resource management (CBNRM)
“Corruption can affect natural resource management at many different levels, from local-level bribes for access to specific resources to national-level institutional capture backed by international economic interests. An individual villager, for example, may pay a forest guard to illicitly cut trees for small building projects, while at a much larger scale, the institutions and policies regulating the sustainable management of forests may be manipulated by vote buying, influence peddling, clientelism, or violence to allow for massive logging that serves private interests rather than those of the community.
Designing anti-corruption interventions holistically to account for these multiple layers of corruption has proven difficult. Indeed, even recognizing that these diverse layers exist and understanding how they interact and reinforce or undermine each other requires a multi-scale approach that many anti-corruption interventions in natural resource management lack. Rather, interventions to reduce corruption in natural resource management typically focus primarily on either local- or national-level dynamics, but rarely both at the same time. (...)
[There] are many and varied potential pitfalls to engaging communities in anti-corruption efforts. These often mirror the challenges motivating community-centered approaches in the first place, and include project capture or cooptation; design flaws; lack of attention to local power structures and asymmetries; deficiencies in information, trust, feedback, and local capacities; inadequate implementation; and unsustainability. (...)
A multi-level approach to anti-corruption is a challenging option. At the local level, it requires all the elements of building community trust and inclusion that have made community-based natural resource management effective. Yet, at the national level, it also requires an explicit awareness of elite interests in the specified resources to be managed, as well as the higher-level political dynamics surrounding these elite interests. This means tackling head-on the national-level dynamics that most community-based approaches hope to circumvent entirely. In this regard, a project context or situation analysis should include mapping existing interests and potential conflicts among these, to structure interventions that will more effectively respond to real-life dynamics of corruption.”