Introduction

This module provides advice TNC staff can use to conduct a Free, Prior & Informed Consent process. This module follows the Learning & Early Discussions Module, which is designed for use in the earliest stages of engagement with indigenous peoples and local communities. If early discussions show there’s alignment to move forward, TNC can initiate more detailed dialogue and consultation procedures for seeking consent, as shown in this FPIC Module.

TNC’s work with IPLCsIndigenous Peoples and Local Communities should always embody the Principles and Safeguards described in the Introduction to this Guide, which themselves reflect the elements of FPIC.

FPIC as a Multi-dimensional Concept

FPIC is a multi-dimensional concept—part standard, part process, part relationship—that must be embedded in TNC’s work.

After gathering information in the Learning & Early Discussions Module, staff should be confident in creating a transparent and inclusive FPIC process. This module provides the following framework:

  1. A summary of FPIC — a definition, its legal basis and the costs and benefits of the process.
  2. Key steps that should be included in any FPIC process — including tips and tools TNC staff can adapt to their situation.
  3. A checklist — for verification and monitoring during the life of an initiative, plus suggested documentation to save. Appendix IV contains a list of FPIC Frequently Asked Questions.

FPIC is an iterative process. It won’t be completed in a single meeting. It is achieved through continuous dialogue, information sharing, and the building of trust and cooperation over time. The Learning & Early Discussions Module, which serves as the foundation for FPIC, outlines actions that should begin before seeking and obtaining consent for an initiative.

The early-stage situational analysis contemplated by CbD 2.0 will involve discussions with IPLCs to understand their key priorities and challenges. Staff should keep FPIC fundamentals in mind, making sure the IPLCs fully understand the reason for discussions, that they can choose a time, place and format for discussions, and that they can modify or terminate discussions anytime. Staff should document those early engagements using the tips, tools and guidance provided in the Documentation Module.

Not all engagements will require an FPIC process. For example, if an IPLC asks TNC for help with a simple product (say, a literature review) as part of a larger, multi-stakeholder initiative, TNC might not need a full FPIC process. TNC also wouldn’t undertake an FPIC process if another non-indigenous organization asked TNC to play a minor role in a project led by that organization, again involving multiple stakeholders and impacting an IPLC. However, in this case TNC would want to make sure that the leading organization had gotten FPIC from the IPLC using a robust process embodying the principles and concepts outlined in this module.

Most importantly, FPIC is a continual process, not something that is secured once and forgotten about. Staff should revisit the process whenever the scope of an initiative changes, new substantive information arises, or a new phase of the initiative begins. Staff should continue collaborating on shared priorities reflecting the vision and standards of the IPLC. For initiatives that were already underway prior to the Guide, staff should take stock of where the initiative is in its lifecycle, and consider which elements of FPIC can be implemented. While this might be a variation on a full FPIC process, it strengthens and demonstrates TNC’s commitment to taking a human rights-based approach in its work.

Principles and Safeguards

The Introduction includes a discussion of all the Principles and Safeguards that apply to equitable partnerships. Six are particularly important for FPIC:

FPIC’s Key Principles and Safeguards

Free Choice and Self-Determination:
TNC must engage IPLCs in dialogue and consultation in a way that respects and contributes to IPLC autonomy, and supports their priorities and vision for the future. This requires an understanding of historical and current circumstances and a commitment to mutual learning and respect.

Prior Engagement and Collaborative Relationships:
TNC must take the time to fully understand the IPLC’s perspective before formulating ideas for an initiative. The Learning & Early Discussions Module suggests an Initial Dialogue and a research-based Engagement Plan in which all parties agree on who is participating and how discussions will take place. That approach should carry forward into formal consultation, background learning, decision-making and consent. The IPLC can withhold consent anytime, and they should never be put in the position of an up-or-down vote on a proposal that they may agree with only in part. The proposal should, instead, be crafted by the IPLC or in collaboration with TNC.

Informed Decision Making:
So they can fully assess impacts, the IPLC must have access to all information about activities that affect them, in a setting, language and format that meets their needs.

Equity:
Fairness and trust-building should be at the forefront, ensuring the IPLC has full access to power, opportunities and resources.

Inclusion:
Collaboration, decision-making and consent considerations must be non-discriminatory. Contributions from all social identities should be incorporated and provisions should be made for accessibility and physically and emotionally safe forums and processes.

Right to Withhold Consent:
Indigenous peoples can withhold consent to initiatives that will impact them at any time. This is true even if an in-depth, costly consultation process has already occurred. Often some objections can be resolved to prevent the complete rejection of an initiative. For that reason, in addition to “yes” and “no” answers to a request for consent, the answers “yes, but with conditions” and “no, but let’s keep discussing” should be offered.

Understanding FPIC

The definition of FPIC, the legal basis for FPIC, and costs and benefits of obtaining FPIC discussed below are a deep dive, which is a departure from the other modules in this Guide. FPIC is a complex, nuanced and essential element of IPLC engagement. If you want to learn more about the history and evolution of FPIC, see Appendix IV for FPIC Frequently Asked Questions.

Definition of FPIC

Indigenous peoples have the right to self-determination. Their autonomy over their identity, culture and development priorities rests on their ability to self-govern, live on their lands, maintain their culture and protect themselves from undue influence by surrounding colonial or dominant society. FPIC is an international legal standard of assessment for interactions with IPLCs — and decision-making affecting IPLCs — to ensure we respect their right to self-determination.

FPIC ensures that indigenous peoples can give or withhold consent to initiatives that impact them. But FPIC is not just about giving or withholding consent. It is an ongoing process to protect the right of indigenous peoples to self-determination, allowing meaningful discussions and the freedom to make decisions without intimidation.[1]

TNC is committed to implementing FPIC not only to comply with United Nations mandates, but because human rights-based approaches to conservation are: (a) aligned with our Code of Conduct and Value of Respect for People, Communities and Cultures; and (b) essential to effective, lasting conservation. FPIC is vital to build equitable relationships that are rooted in trust and drive sustainable positive outcomes for people and nature.

Some authorities have swapped out the “C” in FPIC to mean “consultation” instead of “consent.” To some extent, this places an appropriate emphasis on consultation, an emphasis TNC shares, reflected in the foundational principle of Meaningful Consultation. Removing the word “consent,” however, might signal a reluctance to concede the right to withhold consent. By contrast, TNC recognizes and respects that right in its full expression.

Defining Free, Prior, Informed, and Consent

Free:
Free means consent that is given free of coercion, intimidation or manipulation. TNC’s deep commitment to this concept is expressed in Free Choice and Self-Determination, described in the Principles and Safeguards.

Prior:
Prior means that consent should be sought not just in advance of any authorization or commencement of activities, but at the earliest stages of project development, before key decisions are made. This objective can be difficult to achieve in practice, so careful planning and the exercise of restraint is called for in the early stages of an initiative. Read more in the section on Prior Engagement and Collaborative Relationships.

Informed:
Informed means that the IPLC has been given access to all relevant information about the purpose of the project, its size, scope and lifespan, likely participants, and impact assessments. Possible impacts include environmental, human rights, economic, political, social and cultural. Information should be provided in culturally responsive formats and languages, accommodating the needs of people from different social identities. Sufficient time must be spent learning about underlying issues, following up, and allowing for dialogue within the IPLC and between the IPLC and TNC.

Consent:
Consent refers to an authoritative and legitimate collective decision made by the IPLC, using its own customary decision-making processes. TNC fully respects indigenous peoples’ right to withhold consent. The IPLC can freely say “yes,” “no,” “yes, but with conditions,” or “no, but let’s continue to discuss” to any proposed activities.

For a more detailed discussion of each FPIC element, see pages 15 and 16 of the FAO manual Free Prior and Informed Consent: An indigenous peoples’ right and good practice for local communities.

The FPIC standard has evolved over decades. It’s now part of many international treaties, such as the UN Declaration on the Rights of Indigenous Peoples – UNDRIP – and the Convention on Biological Diversity. It’s also referenced in the policies of governments and international institutions, case law of national courts and international human rights tribunals, mandates of local and global multi-stakeholder platforms (such as the Forest Stewardship Council), voluntary standards in the private sector, as well as the commitments of NGOs like TNC.

TNC’s commitment to FPIC emerges from these sources of law and guidance, which recognize the fundamental role FPIC plays in protecting indigenous peoples’ right to self-determination. UNDRIP specifically requires the state to engage in FPIC and TNC believes that non-state actors share this responsibility as well.

FPIC has been viewed as a legal principle designed to protect rights specific to indigenous peoples. But FPIC also applies to interactions with local communities whose members identify less strongly as indigenous, who make no claim to be indigenous, or who are not recognized by the state as indigenous, but who maintain distinct identities and cultures linked to lands they have occupied or used for generations. TNC has adopted this approach by making the Guide and its procedures, protocols and guidance applicable to local communities as well as indigenous peoples.[2]

Costs and Benefits of FPIC

Staff should be aware of and prepare to address the costs and benefits of an FPIC process. FPIC is not optional, however, regardless of costs and benefits. In practice, the initial costs of a comprehensive FPIC process often lead to more positive and sustainable outcomes for people and nature, which could actually lower total costs over time. For planning purposes, an FPIC budget should include staff and IPLC time for building relationships and the costs of holding inclusive meetings, gathering and disseminating information, and communicating with the IPLC. Illustrative budgets for two different scenarios are presented in the Wenland case study. Future versions of this Guide will include more guidance on costs and budget planning for FPIC.

An FPIC process requires time, resources and commitment. Some may feel FPIC is too difficult or time-consuming and that it will leave conservation work mired in procedural or political disputes. Others may find the process too open-ended and uncertain. Both concerns are understandable.

In practice, however, it’s a different story. The elements of FPIC are profound but also flexible and efficient. If an FPIC process encounters serious obstacles, they likely would have emerged at some point in an initiative’s lifespan. FPIC helps everyone anticipate issues that would be far more costly to address later in the process, possibly avoiding mistakes that would cause irreparable harm.

More and more, IPLCs are coming to expect an FPIC process. By fully embracing it, TNC can ground its relationships in trust, equity and genuine collaboration. And the downstream benefits are considerable. The risks of neglecting FPIC are likewise considerable. These risks include the withholding or withdrawal of support by key rights holders or stakeholders as well as reputational risk.

The possibility that consent may be denied, barring a forward path on an initiative TNC cares deeply about, must be accepted with humility and a broader appreciation of the global context. More specific risks must be considered, like the possibility that the implementation of FPIC in an area where state or local government is hostile to indigenous peoples could increase retaliatory action directed at the local community or at TNC for supporting their rights.[3] This module will help staff learn about and prepare for these risks, while also illuminating the short- and long-term benefits of a human rights-based approach to conservation.

Key Steps in the FPIC Process

The key steps of any FPIC process should strike a balance between being flexible enough to be adapted to TNC’s conservation work around the world, while also providing concrete and useful guidance. These FPIC steps assume staff have already used the Learning & Early Discussions Module to identify and begin conversations with IPLCs who might be impacted by an initiative. In the case of longstanding IPLC relationships and existing projects, staff should use the Learning & Early Discussions Module and Documentation Module to record the key points of the collaboration.

From that stage, the FPIC process includes the following steps:

Guidance

Step One: Build Internal FPIC Capacity

TNC must build our internal capacity before engaging with IPLC representatives. Some of this would have occurred when staff completed the Learning & Early Discussions Module, but staff capacity should be revisited and strengthened if needed.

The TNC team should include people who have experience engaging communities in culturally sensitive contexts. This may not come naturally to everyone. The Diversity Learning page on TNC’s CONNECT intranet provides resources on leveraging differences and fostering inclusion.

TNC’s team should include expertise in the specific languages, histories and cultures of the IPLCs, and external partners or consultants should be engaged if this expertise can’t be found internally. These consultants may include individuals within the IPLCs, local NGOs or academics known to and respected by the IPLCs.

Finally, TNC staff should be humble, open to cross-cultural learning and communication, and committed to equity and inclusion. Staff should also be genuinely collaborative and prepared to take responsibility for our mistakes.

If the TNC Business Unit has worked with other IPLCs, the Business Unit could consider a learning exchange, where representatives from previous IPLC partnerships are brought together with those from potential partnerships. They can ask questions about TNC’s credibility, methodologies and commitment for the long run. These exchanges can build trust and remind all parties that a quality FPIC process not only advances a specific initiative, it supports an IPLC’s broader vision for self-determination.

Below is a list of competencies that may be required for an FPIC process. TNC should determine which competencies it already has in-house and which should be externally sourced. The team should be able to:

  • Develop equitable partnerships rooted in trust and collaboration
  • Facilitate consultations, including with women and members of other social identities
  • Collaborate with the IPLC to understand land, water and natural resource use, including potential differences across gender, age, access, etc.
  • Represent TNC and make binding commitments on its behalf
  • Conduct environmental, economic, social and human rights impact assessments
  • Integrate technical and scientific information with indigenous knowledge if the IPLC chooses to share it
  • Liaise with IPLC leaders and government officials (note: TNC representatives should have authority and standing within TNC commensurate with that of IPLC leaders or officials)
  • Understand (a) state or local law or regulations, and (b) international human rights law, especially expectations around rights or obligations the IPLC may have. These might be related to land, environmental conditions, access to information, self-governance or intellectual property
  • Analyze, provide information and give advice on economic benefits and risks of development opportunities
  • Create and maintain records that ensure transparency and accountability
  • Provide support or capacity building for any necessary governance functions, e.g., financial management
Staff should understand the host country’s legal framework for IPLC engagement. Does the country have any laws or regulations regarding FPIC, land tenure, customary use, resource use or other rights of IPLCs? Knowing the relevant laws, regulations and standards will help staff ensure an FPIC process that meets expectations. Some of the elements described in this module that are aligned with international best practices may go above and beyond local or national legal requirements.

Step Two: Consultation Plan and Process

Early discussions should follow the Engagement Plan from the Learning & Early Discussions Module. This is intended to address how TNC will communicate with IPLCs in appropriate formats, languages, and forums. When TNC and the IPLC are ready to progress into the FPIC consultation process, the existing Engagement Plan should be further developed into a Consultation Plan.

While the Engagement Plan was focused primarily on “who” and “how,” the FPIC Consultation Plan is more focused on “what.” What are the substantive points for discussion? What are the proposed activities? What potential impacts, costs and benefits exist for TNC and the IPLC? The Consultation Plan can be relatively short and simple, and the format should be mutually agreeable to TNC and the IPLC.

The content and focus of the Consultation Plan depend on the IPLC and the specific initiative. There is only so much guidance that can be offered in the abstract, so the TNC team should work with the IPLC to assess and prioritize potential human rights impacts or areas of concern about the initiative. As the consultation proceeds and new learnings arise, this discussion should evolve and deepen.

There are many different models for this kind of process: impact assessment, risk analysis, due diligence and beneficiary assessment are just some approaches outlined by experts and practitioners.

Human Rights Impact Assessment

A Human Rights Impact Assessment (HRIA) is a way of conducting a structured analysis of the potential impacts and concerns regarding an initiative. Some resources on HRIAs are noted below. There are many different models and approaches, any of which might be well-suited to an initiative’s needs. For example, a beneficiary assessment focuses on existing perceptions in a community.

Human rights consulting firm NomoGaia describes its core process as a risk assessment, which is less intensive than a full impact assessment. A risk assessment analyzes:

  1. The right or rights impacted
  2. All relevant rights holder groups
  3. The severity of the potential impact
  4. The probability of the potential impact or rights issue
  5. The underlying causes of the risk
  6. The nature and extent of the connection to the initiative or operation

 
Human Rights Due Diligence, elaborated in the UN Guiding Principles on Business and Human Rights is another widely adopted approach. HRDD aims to “identify, prevent, mitigate and account for how [companies] address adverse human rights impacts.” The four components are:

  1. Assessing actual and potential human rights impacts
  2. Integrating the assessment findings and implementing measures to mitigate impacts
  3. Tracking responses and outcomes
  4. Communicating to all stakeholders and rights holders how impacts are being addressed

 
No one methodology is right for every instance. Depending on specific circumstances, the TNC team should pick one and proceed under the Principles of Self-Determination, Collaborative Relationships and Overarching Good Faith. The TNC team should continuously conduct research and consult experts, and then share what it learns with the IPLC in dialogue and collaboration, making no firm conclusions until the IPLC’s perspective is fully incorporated.

Impact assessments and prioritized areas for concern will be used throughout the lifespan of the initiative to design a Conflict Resolution Plan, choose focus areas for implementation (see Implementation Module) and develop indicators for monitoring, evaluation and adaptation (see Monitoring, Evaluation & Adaptation Module).

Good Practices for a Human Rights Impact Assessement Process

Prioritize (by category if needed)
Consultation should be comprehensive, but people can lose momentum if there’s too much disparate information. If there are a large number of issues, prioritize by category to allow your approach to be both comprehensive and concise.

Listen to the IPLC
Prioritization should flow from two sources:

  1. What is the IPLC most concerned about? A potential impact may become a priority if it affects something valued by the IPLC.
  2. What are the initiative’s most important impacts in terms of social, cultural, environmental, economic or regulatory changes?

 
Expect the assessment to evolve
Make sure to leave room for all parts of the assessment—including the IPLC’s views about what’s most important—to evolve as new information comes in and an IPLC becomes more informed about the initiative’s impacts.

Consider multiple perspectives and consequences
Any area of concern will have an initial most obvious impact. A methodical assessment unpacks the impacts and considers short- and long-term consequences, different perspectives, trade-offs and countervailing interests. TNC teams should consider the initiative broadly and its consequences in light of the rights outlined in the UNDRIP, such as self-determination, rights to territory and protection against forcible removal, rights to culture and protection against forced assimilation, and rights to self-government and financial and technical assistance.

In addition to an impact assessment, the Consultation Plan should include:

  • Scheduling – a summary of when and where consultations will occur.
  • Budgeting – an estimate of the costs each party will incur during the consultation process and how the IPLC will be compensated for its participation.
  • Milestones – This ensures discussions are on track and proceeding at a comfortable pace for all, and that both TNC and the IPLC remain committed to the process.
  • Documentation – The Documentation Module provides helpful tips and tools for ensuring thorough, consistent, and culturally responsive documentation. Questions to consider:
    • Who will document what?
    • How will meetings, telephone calls and other steps in the process be recorded and described?
    • Where will meeting minutes be kept and how will they be shared?
    • Are FPIC documentation plans compatible with any TNC record-keeping requirements for the initiative?
    • Is documentation maintained in a format that is easily available to staff (who may come and go over the initiative’s lifespan) and readily shareable with and stored by IPLC partners?-

Page 43 of FSC FPIC implementation guidelines includes a helpful list of elements to consider when developing a Consultation Plan detailing how the parties will communicate and consult.

For a list of issues to consider when creating the Consultation Plan, see the bullets on page 21 of Conservation International’s FPIC guidelines.

Another good list of elements that should be included in the agreed-upon FPIC framework can be found in Section 1.3, page 38, of FSC FPIC implementation Guidelines.

Equitable Origin and the Roundtable on Sustainable Biomaterials have guidance on what constitutes acceptable evidence of FPIC processes in Enabling FPIC Through Voluntary Standards, Project Report, July 2018.

The UN Global Compact Guide to Human Rights Impact Assessment and Management is a primary go-to source for HRIA practice. A one-page cheat sheet of core human rights is on page 62 of the HRIAM.

NomoGaia: Human Rights Risk Assessment: A Practitioners Guide and The Business Person’s Guide to Human Rights Risk Assessment.

Business for Social Responsibility: Conducting an Effective Human Rights Impact Assessment.

Oxfam’s “Getting It Right” Tool on Community-Based Human Rights Impact Assessment has information, case studies and a customizable dataset builder.

For helpful guidance when engaging with IPLCs in an impact assessment during the consultation process, see the Convention on Biological Diversity’s Akwé: Kon Voluntary Guidelines. Section IV of the guidelines includes information on how to integrate cultural, environmental and social impact assessments into a single process and issues and questions to consider with each component.

Even if an IPLC is enthusiastic about working with TNC, the FPIC process cannot be shortened or rushed. One initial meeting is probably not sufficient for achieving the principle of Informed Decision-Making. TNC and the IPLC should work toward specific, clear agreements (ideally written down) that are formally approved by IPLC institutions. These agreements may reveal issues not presented at early meetings that need to be addressed.

TNC should therefore maintain a steady and thorough approach even in the face of legitimate excitement about mutual agreement. The FPIC process is iterative, and pace and progress will depend on the people involved and the circumstances of each initiative. There’s no universal rule about how many meetings to hold, nor how often. For example, meetings with a farming community that happen on a weekly or monthly basis might need to be delayed during peak harvesting season. The same might be true for meetings with a pastoral community that needs to travel in search of grass during a drought. TNC should not force meetings if this happens. Instead, the process should be continually adapted to meet IPLC needs.

In later meetings, one goal should be to reach a consensus that the “Informed” element of FPIC has been met. Conservation initiatives can be complicated, so there may be occasional conflicts or detours into relevant side issues along the way. Staff should remember that the process is as much about educating themselves about how the IPLC sees the initiative as it is about sharing TNC’s views. In many cases, a detailed or even difficult FPIC process yields a stronger, more equitable team heading into implementation.

Consent requires an iterative process that involves presenting the initiative, asking for feedback from the IPLC, adjusting parameters based on feedback and seeking agreement to move forward. These negotiations between TNC and the IPLC frequently center on resources to be protected, how they should be protected, compensation for any damages to resources, and agreements about benefit sharing.[4] If the initiative involves capacity building, the discussion may focus on its scope and purpose, the people to whom it will be offered, and expectations regarding IPLC member roles.

Inclusion has been repeatedly flagged as a key issue to consider. At this stage, TNC should integrate its earlier learning to conduct a gender analysis with the IPLC to locate the initiative on the Gender Integration Continuum and develop appropriate follow-ups and support practices, such as a Gender Action Plan. For a detailed explanation of the CARE Gender Integration Continuum and steps for gender equity integration, see TNC’s Guidance for Integrating Gender Equity in Conservation.

In addition to gender, TNC should analyze any other relevant inclusion issues. The FPIC process needs to be built with awareness, adaptation and affirmative support for all social identities. See Appendix II – Glossary of Key Terms for a list of social identities to think about.

As the framework for collaboration and equitable partnership develops, both parties should assess the capacity needs of the IPLC, in the same way that TNC assessed its own capacity in Step One. The IPLC’s familiarity with the concept of FPIC must be determined first. Then assess: their level of commitment to the process; compensation for their time; their ability to effectively send, receive and store information; and their capacity to attend or host meetings. If the assessment reveals that the IPLC could benefit from third-party support, including advice from a legal consultant of their choosing to make sure they understand the costs and benefits and legal ramifications of the initiative, TNC should consider budgeting for that.

In deciding how information will be shared, teams should understand the IPLC’s preferred language(s), levels of literacy, and how the IPLC prefers to receive information: orally, visually in photos or videos, in writing, via diagrams or drawings, or another way.[5] Information may need to be shared in different ways with different groups. See the Documentation Module of this Guide for more information.

© The Nature Conservancy

2A. Wenland Case Study

Consultation Coalition

FrostLock has convened civil society organizations, Albian national and Wenland territorial government agencies and Wen Councils for a series of consultations on the possibility of deploying its technology across the Wenland permafrost.

Step Three: Final Presentation and Seeking of Consent

When a shared understanding is reached about the proposed collaboration, TNC will typically prepare a Final Presentation or Summary, or work with the IPLC on a similar process. The summary will include final outcomes, agreements reached, and key expectations or underlying assumptions. During consultations, parties will sometimes think out loud or speak conditionally, hypothetically or provisionally, which can leave misunderstandings about what’s in or out of the overall initiative when it’s time to move forward. A Final Presentation will articulate TNC’s intentions and assurances in a concrete form upon which the IPLC’s determination of consent can be based. A summary or presentation may also be useful for Documentation purposes, as discussed in the Documentation Module.

A Final Presentation or Summary can take many forms. It should be adapted to the IPLC’s needs and preferences, and be presented in the IPLC’s preferred language and format. It might be oral, ceremonial or part of a customary protocol or practice of the IPLC’s choosing. In these cases, TNC should consider keeping a written version of the Final Presentation as part of its own Documentation Plan. The Final Presentation should be given in full compliance with the procedures and expectations of the IPLC and its leadership institutions.

The IPLC’s consent, if granted, should be memorialized in a Consent Agreement. All parties must agree on the form this will take. TNC might want to document consent one way (approved minutes of the decision meeting or a written statement of consent, for example) and the IPLC might want to document it another way (a ceremony or protocol, for example). TNC should respect the IPLC’s preferred approach, while also seeking to satisfy its organizational requirements.

If TNC feels that certain details of the consent need to be in writing (see the tools immediately below for common elements of written Consent Agreements), and IPLC written language and literacy levels support this, TNC may ask for a signed Consent Agreement before committing its resources.

TNC should, however, avoid meeting its documentation preferences by having IPLC leaders sign documents they can’t read. Where there is no written language, or limited literacy, it is preferable for TNC to record the oral consent with permission and preserve it along with a written document that explains TNC’s understanding of the consent but that does not purport to be binding on the IPLC. See the Documentation Module for more information.

The FAO manual Free Prior and Informed Consent: An indigenous peoples’ right and good practice for local communities includes a good list of topics that should be covered and provisions that should be included in any Consent Agreement.

Common elements of a Consent Agreement include language specifying geographic areas that are off-limits, means of calculating and disbursing any compensation that will be paid to the community, conflict resolution mechanisms, and monitoring and evaluation plans.

Once consent is granted, implementation can begin. Implementation activities should be checked periodically against the Consent Agreement to ensure that the conditions upon which consent was granted are still being met. It’s also important to revisit the Consent Agreement whenever major decisions arise, when TNC or IPLC representatives change or new phases in the initiative are anticipated. TNC and the IPLC should both monitor the Consent Agreement via follow-up discussions and check-ins. The format, frequency and documentation of these discussions should be agreed on up front. This process for verifying ongoing consent should strengthen the IPLC’s partnership with TNC as the initiative evolves and conditions change.

It is sometimes hard to know who from the IPLC is authorized to give consent. Which individual, group of individuals or body speaks for the IPLC and gets to say “yes” or “no”? What if the IPLC is divided? TNC will hopefully have become familiar with the IPLC’s decision-making processes in Step One and Step Two. But if conflict or confusion remains, TNC must seek to learn more about the IPLC’s decision-making approaches, using community-based and external expertise as appropriate. TNC should try to reach a broad consensus on decision-making even if there are strong differences about what the ultimate decision should be. Then, staff should clearly communicate to the entire IPLC how it plans to proceed.

If TNC staff can’t confidently affirm a consensus, they should put the process on hold and seek input and advice from TNC’s Global Indigenous Peoples and Local Communities Team and colleagues in the VCA Network.

The IPLC is free to say “yes” or “no,” as well as “yes, but with conditions” and “no, but let’s continue to discuss” in response to the Final Presentation. They may also indicate a lack of consent by declining to engage in additional discussions. If the IPLC declines to engage, staff should respect that choice and not keep reaching out. If the IPLC accepts some parts of the project and rejects others, TNC must understand exactly which parts are and aren’t acceptable. Listening closely to the IPLC and incorporating their concerns and suggestions into the Consent Agreement will go a long way toward ensuring an initiative’s success.[6]

TNC’s FPIC process might differ from some government-run FPIC processes that are effectively Free, Prior & Informed Consultation processes, in which the state retains ultimate authority over the decision. See Appendix IV – FPIC Frequently Asked Questions for a summary of the distinction between consultation and consent. These processes can be legitimate and compatible with legal regimes that respect IPLC rights. TNC, however, like most non-state actors, has committed to not proceeding with an initiative unless Free, Prior & Informed Consent is given by all impacted IPLCs.

This commitment does not end the discussion on consent; difficult situations may still arise. For example, what if one significantly impacted IPLC gives consent and wants to proceed, while a less significantly impacted IPLC withholds consent? What if an IPLC that is only minimally impacted by an important project withholds consent? What if an IPLC claims it will be impacted and demands an FPIC process, but TNC staff or other observers do not believe the impact claim is plausible?

There are no easy answers. Each scenario must be handled on a case-by-case basis. But TNC staff should hold the conviction that consensus is possible in most cases. TNC’s mission is to conserve the lands and waters on which all life depends. IPLCs share these values more deeply than most because their identities are often inextricably connected to the natural world. The expressions of those values can sometimes be very different and, together with entrenched oppressive systems, power imbalances, and the legacy of colonialism, can lead to conflicts, as has so often happened between conservation groups and IPLCs in the past. FPIC offers a hopeful, and more reliable, path to a future of different outcomes.

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 recognize that the gravity of the situation—for the permafrost and for the planet—requires action even if outcomes are uncertain.

FPIC Checklist

Step One: Build Internal Capacity

  Ensure the TNC team has the necessary competencies or can access them externally.

  • Consider TNC’s Diversity Learning page as a resource on topics such as leveraging differences and creating inclusion
  • TNC team should include expertise in languages, histories and cultures of the IPLCs involved, and be committed to collaboration and cross-cultural learning and communication

 
  Develop a Documentation Plan.

  • Work collaboratively with the IPLC to develop the plan
  • Agree on who will document what and in what format
  • Identify a member of the TNC team who will maintain records per TNC requirements

 
  Understand host country legislation regarding FPIC requirements, remembering that TNC is committed to a process that may go above and beyond the local legal framework.

Step Two: Consultation Plan and FPIC Process

  Collaborate with the IPLC to create a Consultation Plan to include:

  • A mutually agreed approach to an impact assessment, to include potential human rights impacts of proposed activities (should be updated as consultation discussions proceed):
    • Positive impacts
    • Negative impacts, including severity, probability and underlying causes of the risk
    • Proposed mitigation for potential negative impacts described above
    • Plan for tracking responses and outcomes and for communicating how impacts are being addressed
  • Scheduling
  • Budgeting
  • Milestones
  • Documentation

 
  Hold meetings at times and places of the IPLC’s choosing, including additional meetings or provisions for different social identities, if necessary.

  Document presentations made by TNC, IPLCs and others to record outcomes and agreements.

Step Three: Final Presentation and Seeking of Consent

  Conduct a final presentation or summary articulating TNC’s intentions and assurances in a concrete form upon which the IPLC’s determination of consent can be based.

  • Tailor the presentation to the context and IPLC expectations
  • In the case of oral, ceremonial or other customary practices, TNC may want to consider keeping written documentation for its records:
    • Document who attended
    • Take minutes
    • Keep a written record of the presentation

 
  If consent is granted:

  • Agree on the form consent takes
  • Make sure IPLC concerns and suggestions are incorporated in any Consent Agreement
  • Document who participated in Consent Agreement meetings
  • Create a plan for when and how to periodically revisit the Consent Agreement

Documentation to Save

See Documentation Module for additional context and considerations for documentation

  Consultation Preparation

  • List of required competencies for the FPIC process showing how the TNC team meets these requirements
  • Summary of relevant host country legislation regarding FPIC
  • Capacity needs of the IPLCs, including familiarity with FPIC, ability to send, receive and store information and capacity to host and attend meetings

 
  Consultation Plan, created in collaboration with the IPLC, that addresses at a minimum the following elements:

  • Substantive areas of discussion
  • Scheduling
  • Budgeting
  • Milestones
  • Documentation
    • Clearly articulate who will document what
    • Ensure all meetings, telephone calls and other steps in the process are noted and described
    • Explain how meeting minutes will be kept and shared
    • Check compatibility of these documentation plans with TNC’s most recent record-keeping requirements for FPIC practice
    • Ensure documentation is maintained in a format that’s easily available to staff and is readily shareable with and stored by IPLC partners
  • Information drawn from a Human Rights Impact Assessment, including actual and potential impacts, proposals for mitigating impacts, a plan for tracking responses and outcomes and for communicating to stakeholders and rights holders how impacts are being addressed
  • Records of how the plan was co-created and shared with the IPLCs

 
 Materials documenting meetings, events, and similar activities (minutes, list of attendees, copies of substantive materials distributed)

  Final presentation or summary articulating TNC’s intentions and assurances in a concrete form upon which the IPLC’s determination of consent can be based

  Consent Agreement (if consent is given) that reflects an agreed-upon format and includes IPLC concerns and suggestions, who participated in Consent Agreement meetings, and a plan for when and how to periodically revisit the Consent Agreement

  Notes on meetings revisiting the Consent Agreement

Notes

[1] Food and Agriculture Organization of the United Nations. (2016). Free and Prior Informed Consent: An indigenous peoples’ right and a good practice for local communities. Manual for Project Practitioners. Available: http://www.fao.org/3/a-i6190e.pdf

[2] For TNC, “indigenous peoples and local communities” refers to peoples and communities who possess a profound relationship with their natural landscapes, which they depend on for cultural, spiritual, economic and physical well-being. Original inhabitants and migrants who have a close relationship with the landscape are likewise considered to be IPLCs. TNC recognizes the collective rights of indigenous peoples as codified in international law. In this Guide, “IPLCs” is used to refer to all indigenous peoples and local communities.

[3] FSC, supra, at 15.

[4] Jerome Lewis, supra, at 177.

[5] Conservation International, supra, at 22-23.

[6] FAO, supra, at 25.

1A. Wenland Case Study

TNC in Wenland (SCENARIO 1)

TNC has several offices in mainland Albian and in Albian cities in Wenland.

We have managed and participated in several Albian conservation initiatives since the late 1980s. Our only project in the Wend to date was a coastal conservation easement funded by a private donor in 1997.

The donor allocated funding to pay a Wenebe community to steward the land and provide annual reports. The extent of consultation on the project is unknown. The agreement was purportedly signed by a Wen leader that today, no one has heard of. We have no evidence of reports or documentation of any discussions and the funding ran out in the early 2000s.

Soon after, the rapid growth of a nearby town, now populated by more Albian oil workers and their families than Wenebe, led to the construction of an Albian commuter suburb not far from the easement.

Let's Say…

Thoughts and Guidance

Let's Say…

1
Wenland’s TNC team would like to increase conservation activities in the Wend, and has lots of ideas, starting with using the old easement as an inroad. The team knows that it needs to consult the Wenebe and is excited to hear their views. Are there any other considerations?

Thoughts and Guidance


The TNC team can initiate research and early discussions with the Wenebe and should engage in discussion with all three Camps, following guidance in the Learning and Early Discussions Module. However, if the Wen have not actively sought our involvement, TNC needs to exercise special care to make sure the IPLC perspective and right of self-determination are at the center of the process.

TNC should acknowledge that as a large U.S.-based conservation organization, we are an outsider (see How to Use This Guide and When It Applies section of the Introduction to this Guide). TNC’s identity and privilege could lead to displacing prerogatives that belong to the Wen, since TNC doesn’t have deep roots in the Wend or close connections with the Wen people. Before coming in and proposing to help, a more gradual development of these relationships, not in pursuit of any specific initiative, may be more welcome and yield better results.

Let's Say…

2
As regards the old easement, it seems clear that no FPIC was conducted at the time. Does TNC need to conduct an FPIC process now?

Thoughts and Guidance


FPIC is an evolving standard. It is not necessarily wrong that prior interactions did not adhere to a standard that didn’t yet exist. At the same time, TNC’s Principles and Safeguards such as Respect for Self-Determination and Overarching Good Faith are forward-looking and not satisfied by technical defenses of past events. If the easement negatively impacts the Wen’s right to self-determination, or if there is lingering resentment about the lack of consultation, an FPIC process may be needed.

Let's Say…

3
A local Albian conservation group, Albian Trust, has contacted TNC to sponsor the Trust’s proposal for new government funding to steward the land and expand the easement. Is an FPIC process with the Wen required before TNC can agree?

Thoughts and Guidance


In this case, the legacy project is being updated and reworked. Contemporary standards apply, so yes, an FPIC process is needed.

Let's Say…

4
Albian Trust’s proposal describes the easement as being located on untitled government territory. When TNC says FPIC is needed, the Trust responds that the Wen have no territory and are not indigenous since they came to Wenland at the same time as the Albian. The Trust further notes that the Albian government has decreed that the Wen have no collective or other special land rights and that TNC must respect national law. How should TNC react?

Thoughts and Guidance


It is not for TNC to determine the indigenous status of the Wen people. And while TNC cannot violate national law, we can maintain our own commitments, which include actively supporting indigenous self-determination. The Wen have a profound, ancestral relationship to the landscape despite their relatively recent arrival, and they have maintained their culture and language despite significant integration with Albian society. Most critically, the Wen consider themselves indigenous. Thus, there are plenty of reasons for TNC to condition our own involvement on rigorous compliance with the Principles and Safeguards in this Guide.

Let's Say…

5
Same as above, except that instead of arguing against FPIC, Albian Trust gladly agrees to any process that TNC or the Wen feel is necessary. However, it notes that a residential suburb of Albian oil workers is closest in proximity to the easement. Should the suburb be included in Wen dialogue and FPIC? Does it have the same right to grant or withhold consent as the Wen?

Thoughts and Guidance


Absent more facts, an Albian residential suburb (built recently and for occupational purposes) would not appear to satisfy even the broad standard of profound connection to landscape that TNC uses. Thus, the residents of that suburb would not have the same right to grant or withhold consent as the Wen. That said, the principle of Inclusion would weigh in favor of including the suburb residents and other stakeholders as much as possible, in consultation with the Wen as indigenous rights holders.

Let's Say…

6
Same as above, but instead of a suburb of oil workers, the closest community is a commune of young Albian back-to-the-land families who focus on sustainable agriculture and living by traditional Albian religious values. They believe the Albian people were guided to Wenland by God, and they consider protecting the land to be a sacred trust. They also view the easement as critical to protecting their fresh water supply and right to a healthy environment.

Thoughts and Guidance


The prior analysis stands, but it need not be exclusionary. To the extent the Albian community is motivated by a genuine connection to the land and sees its rights as intertwined with the land, its inclusion as a stakeholder can reflect its relationship to the land, even if it doesn’t exercise indigenous rights.

1C. Wenland Case Study

The Permafrost Crisis

In July 2019, a groundbreaking study on data gathered from a global network of permafrost test sites confirmed what climate experts had long feared: permafrost throughout the subarctic is thawing and beginning to release massive amounts of stored methane and CO2 into the atmosphere. A rapid meltdown could double the amount of CO2 in the atmosphere, and unstable thawed permafrost could trigger massive erosion and threaten infrastructure such as roads, bridges and buildings across the subarctic. In August 2019, TNC received a large private grant to explore permafrost preservation and mitigation strategies.

A few months later, FrostLock, a permafrost technology company, approaches TNC with an idea. FrostLock has developed and patented the use of hydrofracking technology and proprietary liquid gas mixtures to stabilize permafrost at a massive scale. In press releases, FrostLock touts its venture capital funding, its recruitment of the world’s leading permafrost geologists, and the minimal environmental impacts of its technology — which they claim could not only save the planet but generate tens of thousands of jobs. FrostLock proposes using the Wend to test its technology and pledges to compensate for the minimal environmental impact by funding a Conservation Management Area that would encompass most of the undeveloped Wend. FrostLock agrees to an FPIC process, which they will fund, but they want to approach the Wen arm-in-arm with TNC because TNC is trusted by the Wen.

Let's Say…

Thoughts and Guidance

Let's Say…

1
Before TNC is contacted by Frostlock, we want to talk to the Wen about deploying the permafrost conservation grant funding we received from the private donor. Can TNC initiate discussions even though the Wen have not raised the issue?

Thoughts and Guidance


Yes. TNC can pursue our own conservation agenda as long as we follow the Principles and Safeguards. The caution recommended by this Guide should not be read as discouraging TNC from offering our services. Often TNC’s ability to secure funding for conservation work is a key contribution we bring to an IPLC relationship. Initiating the discussions may call for extra care to ensure that any efforts are consistent with the Wen’s exercise of self-determination. The important fact is that, consistent with the principle of Prior Engagement and Collaborative Relationships, TNC is not bringing a fully developed plan to the Wen for approval but is initiating a discussion.

Let's Say…

2
Regarding the FrostLock proposal, can or should TNC negotiate certain terms of cooperation, such as the extent of the Conservation Management Area, before agreeing to approach the Wen?

Thoughts and Guidance


A transparent, multi-stage process may be appropriate, starting with informing the Wen of FrostLock’s proposal and seeking guidance on how to proceed.

The principle of Prior Engagement counsels against negotiating with FrostLock before discussion with the Wen. The reason is that having a discussion with FrostLock carries a risk of making decisions about the initiative before incorporating IPLC perspectives. TNC should be clear in discussions with the Wen that we have not yet vetted the initiative with FrostLock, much less endorsed the proposal.

Let's Say…

3
Should TNC simply tell the Wen about FrostLock’s proposal and hand over negotiation to Wen leadership? What if the TNC team is concerned about the Wen’s practical ability to negotiate equitably with FrostLock?

Thoughts and Guidance


TNC should be careful. Even handing over a proposal might be taken as an endorsement. And while TNC should scrutinize the basis for our concern over the Wen’s negotiating abilities, there will be circumstances where such concern is warranted. This project could have major impacts on the Wen and their land; as such, their right to self-determination is activated at its highest level, along with the underlying principle of FPIC. TNC cannot usurp the Wen’s role or undermine their self-determination, but respect for the Wen’s rights might require a more engaged approach.

Let's Say…

4
Initial dialogue with Wen leaders shows that they don’t like the idea and just want to be left alone. Should TNC proceed with further consultation? What if TNC adamantly believes that FrostLock’s technology is the only hope to guard against catastrophic CO2 and methane emissions that could destroy all prior climate efforts?

Thoughts and Guidance


Some degree of advocacy is appropriate, and it may be tempting to rely on the Informed Decision-Making principle to justify pushing the Wen into further consultation to educate them about the initiative’s importance. But neither the principle of Free Choice nor the Wen’s right to self-determination are served by forcing them to engage in unwanted processes. The balance will depend on the circumstances. TNC staff must be prepared to set aside even our strongest organizational commitments in order to respect the Principles and Safeguards, especially Indigenous Self-Determination.

Let's Say…

5
Same as the above, but TNC is aware of several committed Wen climate activists who are trying to convince the Wen Councils to see things differently. Does this change the analysis?

Thoughts and Guidance


Conflicting intra-community views might justify some effort to support processes that ensure all views are heard. But this must be done through IPLC institutions and processes. If Wen institutions have not clearly spoken, there may be more room to work alongside community members who share TNC’s own views. To preserve Overarching Good Faith, TNC must be careful to avoid sowing conflict in a community or Camp by supporting one group over another (see Wen Self-Government hypothetical scenario).

Let's Say…

6
Alternative to the above, the Wennec leadership that TNC approaches for Initial Dialogue about FrostLock’s proposal is quickly and strongly interested and begins discussions about future meetings and consultation. Shortly thereafter, leadership from the Wenebe Camp sends a fiery letter to TNC saying that it has authority to speak for the Wen regarding any consultation process. What does TNC do now?

Thoughts and Guidance


After receiving the Wenebe letter, TNC should slow down our work on the substance of the proposal and revisit the question of how we are engaging with the Wen. Once an Engagement Plan is in place, we can resume work on the proposal.

Situations like this are why the Guide recommends establishing an Engagement Plan as early as possible. The choice of who to talk with is often freighted with implications that outsiders don’t understand. TNC should have conducted enough research to know to start dialogue with all three Camps simultaneously.

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.

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.

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.

2A. Wenland Case Study

Consultation Coalition

FrostLock has convened civil society organizations, Albian national and Wenland territorial government agencies and Wen Councils for a series of consultations on the possibility of deploying its technology across the Wenland permafrost. FrostLock will use its start-up funding to pay for the consultation, which will also address issues related to the administration of the Conservation Management Area that FrostLock is funding.

The Albian government is interested in employment and investment opportunities connected to the project. FrostLock has committed to rigorous environmental monitoring of its test sites but acknowledges that the technology uses aggressive underground fracking techniques and the injection of proprietary chemical mixtures to accomplish the fracturing and stabilization.

Let's Say…

Thoughts and Guidance

Let's Say…

1
As the consultation process begins, a split emerges between the Wen Councils, who want a thorough process no matter how long it takes, and FrostLock and the Albian government agencies, who are more focused on efficiency and economic development. Should TNC take sides with the Wen Councils and push for a more thorough process?

Thoughts and Guidance


Coalition work is about looking for areas of overlap and building on mutual agreement. TNC should strive for broad cooperation. But there will be times when taking sides is appropriate, particularly to reflect TNC’s strong institutional commitment to indigenous self-determination. TNC should also be aware that social power imbalances and legacies of colonialism may have left the Wen in a disempowered position that requires affirmative mitigation. The scenario reflects a situation where TNC should consider using our leverage to assist the Councils in seeking more process.

Let's Say…

2
As the consultation continues, TNC’s concerns grow. For example, FrostLock insists that the environmental issues are too technical for public consultation, which should just focus on social impacts. Despite initial misgivings, the Wen Councils hold a series of internal deliberations and ultimately decide they feel comfortable with the process moving forward in the way FrostLock suggests. Should TNC continue to push for a more robust process?

Thoughts and Guidance


As noted, TNC has a strong commitment to process, but that commitment serves the principle of Indigenous Self-Determination. Where the Councils have made a considered decision like this, even one TNC disagrees with, TNC’s commitments to Meaningful Consultation and Informed Decision-Making may carry less weight.

Let's Say…

3
As the process continues, the TNC team believes the project is a very bad idea because of: (a) severe environmental risks which are not being fully addressed; and (b) social risks to the Wen, such as the influence on the culture and lifestyle of Wennec towns from an influx of non-Wen project workers. Can TNC oppose the project even if the Wen Councils approve?

Thoughts and Guidance


TNC’s views and positions are secondary and supportive as regards the Wen’s perspective, which is rooted in their right to self-determination even if their view is in conflict with ours. TNC may still offer constructive opinions to the Wen, but the extent to which we can advocate for a viewpoint without running afoul of the principles of Free Choice and Self-Determination will depend on the particular issue. In this scenario, TNC may have a stronger justification to raise opposition given that our basis is in environmental issues rather than paternalistic views around what is best for Wen culture.