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Appendix IV

FPIC – Frequently Asked Questions

Appendix IV

FPIC – Frequently Asked Questions

In this Appendix:
Take a deeper dive into some of the more complicated questions around FPIC
Download Appendix IV

What makes a relationship to landscape profound?

Understanding what makes a relationship to landscape profound requires a process of listening, learning and appreciating the IPLC’s worldview. Some indicators of a profound relationship include:

  • Places that feel highly significant to the members of the community
  • Places where the relationship is multi-dimensional, that is, the land provides a place to live, farm or hunt and is also linked to the community’s ancestral experience, culture, spiritual life, and integrity as a people.

 
In the Saramaka case, communities initially founded by enslaved people who had escaped enslavers in coastal cities and fled “to the interior regions of the country [Suriname] where they established autonomous communities.” The IACHR heard extensive testimony about how the people lived on the land and what it meant to them. It recognized that “the identity of the members of the Saramaka people with the land is inextricably linked to their historical fight for freedom from slavery, called the sacred ‘first time.’”

Is there an authoritative source on what is required for FPIC?

No one source details the entirety of FPIC. Instead, there are core underlying principles, such as free, prior, informed, consent and consultation. Treaties add specificity, as do judicial decisions that consider whether FPIC was achieved in a particular case, and guides like this one try to piece it all together.

Where did FPIC come from?

FPIC has developed from a process called customary international law. Like the common law in the U.S. and England, it is not just a matter of statutes and codes, but evolves over time from the actual conduct of states, judicial decisions, and other authoritative statements. This includes policies adopted by key institutions like the World Bank and even civil society actors like TNC. As these sources evolve, FPIC evolves too. TNC, therefore, is bound by the customary law of FPIC and also may contribute to FPIC’s evolution.

There are two key international documents on Indigenous rights:

  1. The UN Declaration on the Rights of Indigenous Peoples is non-binding but considered to be a forceful part of normative or soft international law, especially since the only four countries who initially opposed it have reversed course and now support it.
  2. The International Labor Organization’s Convention No. 169 on Indigenous and Tribal Peoples, a legally binding treaty that has been ratified by 22 states, has served as a source in many judicial decisions.

 
The Inter-American Court of Human Rights has been active in the area of Indigenous rights and FPIC, as have the courts of a handful of countries, like Canada and Colombia, who have come to be considered experts.

Is FPIC really the law—or just a good idea?

The distinction between hard law (you must do something or there are consequences) and soft law (you really should do something) is fuzzy at the international level.

Some argue that all international law has a soft character. In any event, the widespread adoption of FPIC by such a wide range of actors makes FPIC relatively strong soft law, even if it’s not legally binding in all cases. Governments, corporations and NGOs today recognize that violations of strong soft law like FPIC will often result in greater adverse consequences in terms of public trust and institutional capability. TNC is a founding member of the Conservation Initiative on Human Rights and has joined other environmental NGOs committed to upholding FPIC.

Are Indigenous Peoples and local communities treated the same?

FPIC was developed with Indigenous Peoples in mind, meaning peoples who have lived in a place since time immemorial, survived colonialism and imperialism, and maintained their cultural integrity.

Most Indigenous Peoples suffered catastrophic traumas during the colonial and post-colonial eras, including:

  • Forcible relocation
  • Populations decimated by violence or disease
  • Children stolen away to boarding schools
  • Prohibitions on speaking their languages and practicing cultural and spiritual tradition
  • Severe restrictions on the use of land they inhabit

 
TNC extends the benefits of any protection the law requires for Indigenous Peoples to a wider range of potentially affected local communities. Because of the nature of the work we do, TNC focuses on the experience of having a profound relationship with the natural landscape.

As one Saramaka chief, Wazen Edwards, testified: “When our ancestors fled into the forest they did not carry anything with them. They learned how to live, what plants to eat, how to deal with subsistence needs once they got to the forest.” From this experience, the Saramaka perceived that the land had not just received them, but also sustained them and liberated them. It taught them how to be free. Thus, even though the Saramaka communities were not classically “Indigenous,” even to the continent of South America, the IACHR applied and developed Indigenous rights law concerning their claims.

Consultation “versus” consent?

The first three elements of FPIC—free, prior, informed—have been added and developed over time to protect the element at the core of the standard: consent.

This reflects that FPIC necessitates meaningful, active consent. Yet some sources have removed consent from the equation by recasting the standard as “free, prior and informed consultation.”[1]

This version of FPIC, known as Consultation-FPIC, draws on the protective strength of the free, prior and informed elements of FPIC, but ultimate authority in decision-making rests with the party conducting the consultation rather than the one being consulted.

Consultation-FPIC has critics. But it’s too easy to call it a watered-down version of FPIC. Consultation can build on the consent of Indigenous participants, and when appreciated in its many dimensions and genuinely implemented, it can be a powerful source of protection.

It can also avoid some of the controversies of a consent requirement, which is sometimes characterized in national politics as an Indigenous veto over sensitive land use and natural resource decision-making.

The Canadian legal system is largely based on Consultation-FPIC but has proven in recent years capable of protecting Indigenous self-determination claims in the face of powerful opposition from the oil, gas, and pipeline industries. Leading Indigenous activists have supported the notion of a complex interplay between consent and consultation.[2] Professor James Anaya, a pioneer of international Indigenous rights law who served two terms as the UN Special Rapporteur on the Rights of Indigenous Peoples, has described the Indigenous right to self-determination as “entail[ing] more than a mere right to be informed and heard but not an absolute right of veto.”[3]

One of the reasons why it is not easy to separate consent and consultation is that Indigenous Peoples do not all speak with one voice, so a strict interpretation of a consent requirement in the form of a veto could be wielded by one Indigenous people against the wishes of a neighboring people. And the Indigenous right to self-determination is in constant tension with the prerogative of sovereignty exercised by contemporary nation-states. In light of this, courts, policy-makers and practitioners, including those strongly supportive of Indigenous Peoples, have devised a number of approaches to balance competing interests, ensure the legitimacy of consultation, and protect the essence of consent.

How these approaches apply to a non-state actor like TNC is not entirely clear, but the question is less important in light of TNC’s commitment to obtaining full consent from impacted IPLCs before proceeding with any initiative.

It may be that TNC’s commitment to a consent-based approach won’t resolve every conflict between impacted communities. But such scenarios, uncommon as they are, can be addressed on a case-by-case basis. TNC recognizes the legitimacy of both FPIC and Consultation-FPIC processes, so long as the core underlying principles and good faith are maintained, but we have chosen to hold ourselves to a consent-based model.

Notes

[1] For example, this standard was used by the IFC’s 2006 Performance Standard on Indigenous Peoples and the World Bank’s Operational Policy 4.10 referenced this standard. See, e.g., https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89d5.pdf. Ecuador’s historic 2008 Constitution, which also protected the rights of nature, provided for Consultation-FPIC at a constitutional level in article 57, section 7. As discussed herein, Canada’s elaborate constitutional and common law framework for protecting Indigenous land and self-determination rights requires Consultation-FPIC.

[2] World Bank Operational Policy 4.10 is also a good example of this complex interplay. While the policy itself requires “free, prior and informed consultation,” the policy further provides that “[t]he Bank reviews the process and the outcome of the consultation carried out by the borrower to satisfy itself that the affected Indigenous Peoples’ communities have provided their broad support to the project” and that “[t]he Bank does not proceed further with project processing if it is unable to ascertain that such support exists.”

[3]  S James Anaya and Sergio Puig, Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples, 67 U. Toronto L.J. 435 (2017).

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Wenland Case Study Introduction

Welcome to Wenland

Wenland is a vast subarctic island. The European state of Albian claimed Wenland as a territorial possession during Albian’s period of expansion in the 1600s.

Historically, the Wen people were nomadic, and their traditional lands stretch across Europe from as far back as pre-Roman times. In the late 19th century during a surge in intolerant nationalism across Europe, the Wen were forcibly resettled to Wenland. They settled the southern part of the island, but as Albian immigrants began to travel to Wenland’s south coast and settle there, the Wen people were steadily pushed north into the permafrost region, known as the Wend.

In 1934, the Albian government issued a proclamation declaring the Wend as a Wen homeland. They funded the development of Wen self-government, but Parliament never ratified the proclamation. The modern Albian government doesn’t recognize the proclamation as legal, perhaps spurred by Albian citizens, most of whom fiercely oppose the idea of a Wen homeland. No one has actively interfered with the Wen’s occupancy and use of the Wend, so most Wen people withhold comment and avoid the issue.

In the 1970s, oil companies began offshore extractive operations without consulting with the Wen. Many Albian workers migrated northward and today the largest towns in the Wend are half Albian and half Wen. These towns have integrated economies and workplaces, but social segregation and ethnic tensions are ongoing. A few smaller Wen-only villages are scattered throughout the Wend.

There are three distinct Wen social and lineal groups: Wenna, Wenebe, and Wennec. Collectively, they’re called Camps, which alludes to the encampments they built when they first arrived in the Wend in the late 1800s. The Wenna and Wenebe Camps are now based in larger towns, while Wennec consists mostly of small villages that are more self-contained. The three Camps generally cooperate but have sometimes developed rivalries. The Wen Camps speak different dialects of Wennish, although they all speak Albian, too. The Wennec villages are the least proficient in Albian, whereas the Wenna and Wenebe are fluent.

One thing all Wen have in common is defining themselves by their survival in — and connection to — the Wend. They recite how countless peoples came to the Wend through the millennia, but only the Wen listened to the land and learned to live with it in harmony. The Wen hold deep knowledge of the landscape and are committed to protecting it.

Likewise, they’re committed to protecting their culture, including their language, traditional dress and ceremonies. A summer celebration draws Wen from all three Camps to sacred sites across the Wend for a month of festivals, cultural immersion and inter-Camp consultation.

The Wen maintain their own institutions of self-government, but they are citizens of Albian and subject to the jurisdiction of the Wenland territorial government.

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1B. Wenland Case Study

TNC in Wenland (SCENARIO 2)

Unlike Scenario 1, TNC has a large office in a southern Wenland city and a small office in a northern Wen town, where there are three ethnic Wen on staff. TNC has helped Wennec communities near its northern office fund and manage numerous conservation and community development projects over the years. We have not worked much with the other two Wen Camps.

Let's Say…

Thoughts and Guidance

Let's Say…

1
As in Scenario 1, the TNC team is considering program activities regarding an old easement project for which no FPIC process was conducted. The idea of initiating activities around the easement has come up informally several times in conversations with Wen contacts, and everyone seems in favor. In this Scenario, is a broader FPIC process still necessary?

Thoughts and Guidance


TNC may not need to immediately address the lack of FPIC in every legacy project; however, modifying, expanding, or revisiting a project may trigger that need. Because FPIC is such a powerful relationship-building tool, TNC should not shy away from exploring it. It’s not clear whether the Wennec Camp would be able to authorize further development of the project without involvement from the other Camps or broader Wen authority. An open FPIC process would answer this question and help TNC build trust and relationship with the Wenna and Wenebe Camps as well.

Let's Say…

2
The Wennec Camp wants TNC’s help in developing a herd management program for the Wendbok, a culturally significant reindeer. In the past, Wendboks were a staple of the Wen diet, but overpopulation has become an issue in some regions where fewer Wen youth are taking up hunting.

Thoughts and Guidance


The fact that the proposed action would affect a migratory herd means a management plan is more likely to affect the other Wen Camps as well. And an additional inquiry and consultation are warranted to ensure that all Wen people are being considered in the decision-making.

Let's Say…

3
Following on the above, when TNC asks to begin a broad consultation process about the Wendbok, Wennec leaders firmly object, saying that there are political considerations TNC wouldn’t understand. They also say that a core tenet of Wen self-government is that individual communities control local land- and resource-use decisions — and this authority extends to migratory herds.

Thoughts and Guidance


This scenario introduces tension related to the principle of Respect for Self-Determination, which urges TNC to respect the Wennec’s own understanding of their authority within broader Wen society. Without any clear evidence that this understanding is problematic, TNC should probably defer to the Wennec’s process. At the same time, TNC should let the Wennec know they will be checking in with the Wenna and Wenebe authorities, since TNC owes a duty of Respect for Self-Determination to the Wen people as a whole. TNC should be prepared for difficult cases where respecting a decision from one community could undermine self-determination of another or the community at large.

Let's Say…

4
The Wennec move forward with their herd management program. TNC wildlife specialists who look at their initial plan are dismayed, saying it doesn’t take into account data about the whole ecosystem. The Wen individuals on staff at TNC tell their colleagues that the whole thing is probably just an attempt by local big shots to get around Wenland hunting permit restrictions that the Wen have long objected to. Can TNC take a stand against the program or at least its hasty implementation?

Thoughts and Guidance


TNC does not have the agency to decide what’s best for the Wen. Instead, staff should defer to the Wen’s authority to exercise their self-determination. The fact that the Wennec Camp’s plan does not immediately meet the ideals or expectations of TNC is no reason to depart from Respect for Self-Determination, though it may lead to discussion with the Camp and an offer of assistance.

In any relationship with an IPLC, there is much that TNC likely doesn’t see; here, the Wennec Camp’s plan may rest on Indigenous knowledge about the herd and the ecosystem that is not stated in the plan documents. The fact that TNC has Wen staff members doesn’t negate the fact that TNC is an outsider organization. However, TNC’s commitments to Informed Decision-Making, Meaningful Consultation, and Inclusion could lead TNC to advocate for more discussion of the herd management plan, as long as it does so with respect for the Camp’s ultimate right to decide for itself.

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1D. Wenland Case Study

Wen Self-Government

Most Wen live and work alongside the Albian population in Wenland society under the Wenland territorial government and the Albian national government, but Wen self-government persists to an extent. The three Wen Camps occupy areas that partially overlap, and they each maintain a quasi-executive Camp Council.

The Councils, which are majority male but have some female representation, typically focus on efforts to preserve and promote Wen culture. There are also quasi-judicial Elder Councils composed of only men, who advise the Camp Councils and help resolve disputes. The authority of all these Councils has almost never been tested in Albian courts, which exercise civil and criminal jurisdiction over the Wen population.

Let's Say…

Thoughts and Guidance

Let's Say…

1
Following up on point 6 in the “Permafrost Crisis” scenario, TNC is now working with all three Wen Councils to agree on an Engagement Plan. The Wenebe and Wennec Councils vehemently disagree on the amount of consultation needed. Both Councils acknowledge that neither is superior and that decisions affecting the Wen can only be made by consensus. Three months go by and the disagreement persists. FrostLock is considering abandoning its Wenland project, which neither Council wants. Can TNC adjust its involvement to pressure the Councils to agree on an approach?

Thoughts and Guidance


The simple but profound truth is, TNC’s work with IPLC institutions must persevere even when things are hard or frustrating. True collaborative relationships and respect for self-determination aren’t contingent on things going as planned. TNC teams have to live with IPLC governance procedures we may find frustrating or counterproductive, but we need to work according to the rules and expectations of the system. Whether TNC can increase advocacy and try to pressure the Councils for legitimate purposes will depend on Wen rules and expectations—but this must be pursued in the spirit of Free Choice and zero tolerance for coercion.

Let's Say…

2
In response to the disagreement, FrostLock suggests that TNC should work with FrostLock on a Plan B to conduct an FPIC process exclusively with the Albian government, noting that the Wen Councils are “just advisory anyway.” Can TNC entertain this suggestion?

Thoughts and Guidance


No. Regardless of what authority the Wen Councils presently exercise under Albian law, Indigenous self-determination and self-government are larger, global commitments that TNC respects and upholds. TNC should embrace any opportunity to support Indigenous self-determination, even if there is an arguable basis not to.

Let's Say…

3
While working with the Wen Councils, TNC is approached by a Wen splinter group, Wenza, that has a longstanding list of grievances about the Councils. Wenza claims that its voice will not be heard in the Council-led consultation process being planned. Does TNC have an obligation to hear Wenza out? What if the Councils tell TNC not to pay attention to Wenza? If TNC does listen to them and believes that Wenza has a legitimate distinct viewpoint that will not otherwise be included in the consultation process, does TNC have an obligation to take steps to include them?

Thoughts and Guidance


TNC must adhere to the rules and expectations of established IPLC institutions, and we don’t get to decide how IPLC institutions should work. At the same time, we must uphold the Principles and Safeguards. Depending on the circumstances, the principles of Equity and Inclusion and Informed Decision-Making might justify encouraging the Councils to include Wenza, or proposing a process for its views to be heard. Any such action should be pursued in service of self-determination, as embodied in the Wen’s established institutions and processes.

Let's Say…

4
Same as the above, except Wenza is a group of Wen women who have spent years fighting for more recognition and influence in the face of what they see as discriminatory practices enacted by the male-dominated Councils.

Thoughts and Guidance


This is a difficult but not unusual scenario. The principles of Equity and Inclusion call for some effort at intervention. Given the existence of gender equity issues and the impact that the massive FrostLock initiative could have on Wen self-government and culture, gender should be considered a key issue. A collaborative analysis should be conducted using TNC’s Guidance for Integrating Gender Equity in Conservation. TNC’s participation lies within a continuum of attention to gender equity — from gender-blind, which often perpetuates entrenched discriminatory practices, to gender-balanced, -sensitive, -responsive and -transformative approaches. TNC does not have the power to dictate an approach to the Wen Councils, but staff should monitor gender equity and determine whether the Equity principle is being observed before proceeding with any initiative.

Let's Say…

5
Same as the above, except that (a) the Councils don’t exclude women from informational sessions, only from having a final vote; (b) TNC becomes aware of claims that most Wen women oppose Wenza’s agenda; and (c) TNC hears from both men and women that Wen women have a strong voice in decision-making via family-based customs and cultural privileges.

Thoughts and Guidance


This scenario is merely designed to illustrate how nuanced and difficult these situations can be. Cultural practices are not necessarily discriminatory just because they don’t map neatly onto the anti-discrimination norm as certain societies understand it. On the other hand, words like “nuance” and even the concept of cultural relativism is sometimes used to sustain problematic privilege models. This further underscores the importance of applying the principles of Equity and Inclusion in a culturally responsive approach.

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2B. Wenland Case Study

Consent & the Right to Withhold Consent

Concerns linger about FrostLock and its technology, but the Wen Councils say they will give consent.

They state that they recognize that the gravity of the situation—for the permafrost and for the planet—requires action even if outcomes are uncertain. “We must act. We will deal with problems as they come up,” says one Wen leader.

Let's Say…

Thoughts and Guidance

Let's Say…

1
Leaders of the Wen Councils indicate that they can provide the Wen’s consent to the project without a popular vote. Should TNC push for a different process?

Thoughts and Guidance


Absent some very clear problem, TNC should defer to the Wen Councils about the scope of their authority to speak for the Wen. Nonetheless, TNC may want to review the extent of community involvement in the consultation process. Approval of this initiative is a major decision, and the Wen have a complex and partially divided social structure. Have the principles of Inclusion and Informed Decision-Making been considered for all three Camps? Has the safeguard of the Right to Withhold Consent been protected? If concerns remain, a request for more process or broader indications of community support may be helpful.

Let's Say…

2
Same as above, but Council leadership candidly admits they don’t want to submit this directly to the Wen people who will be fearful of the project. “This is a moment for leadership,” they say. Now should TNC push for a different process?

Thoughts and Guidance


This scenario sharpens the dilemma, but the same analysis applies. The Wen’s self-determination as expressed through their established institutions must be respected. The decision on which matters should get a popular vote versus the determination of representatives is a constitutional decision made in different ways by all societies. To impose an outsider’s view of what is necessary would run counter to self-determination. That said, TNC might legitimately use any leverage we have within the process to advocate in the direction of more consultation and informed decision-making, while still maintaining respect for self-determination.

Let's Say…

3
The Wen Councils say no formal document or memorial is needed to express consent. TNC legal and certain donors, however, insist on having some sort of documentation before they feel comfortable moving ahead with the initiative. Should TNC insist on some sort of documentation of consent?

Thoughts and Guidance


TNC must continuously respect self-determination. But we can also condition our ability to further engage, make commitments, or deliver third-party commitments, like funding, on our own internal needs, including documentation. However, if limiting TNC’s involvement would threaten the overall project, this insistence could have coercive impact, which must be taken into consideration. TNC’s influence must be exercised in collaboration with the Wen to find a form of memorialization that is mutually satisfactory (see the Documentation Module).