Prior Consultation and Free, Prior, and Informed Consent at the United Nations Permanent Forum on Indigenous Issues 2015

By Emma Banks

Vanderbilt University

Between April 20-May 1, the United Nations hosted its fourteenth annual Permanent Forum on Indigenous Issues in New York.  Representatives from state institutions, NGOs, indigenous advocacy groups, and other organizations from around the world gathered to discuss the future of indigenous people, and how the UN can incorporate the diverse indigenous agenda in its programs and policies.    This year was an especially important meeting as the UN’s Millennium Development Goals (MDGs) expire this year, and will be replaced by a new set of fifteen-year goals, which will be called the Sustainable Development Goals (SDGs).  The MDGs made no explicit mention of indigenous peoples, but the UN has since recognized the importance of indigenous voices in achieving development goals and protecting natural resources for years to come.  The UN must not only guarantee the participation of indigenous people in name, but also monitor and evaluate compliance with UN norms worldwide.  To this end, several organizations are experimenting with pilot programs to allow indigenous people to report on state, regional, and local compliance with the UN Declaration on Indigenous Peoples (UNDRIP).  These programs are part of the UN goal to create more robust development indicators that disaggregate data on indigenous peoples to better understand their specific development challenges and needs in the future.

Free, Prior and Informed Consent: Protecting Indigenous Peoples’ rights to self-determination, participation, and decision-making

Taken from Cultural Survival, in http://www.culturalsurvival.org/publications/cultural-survival-quarterly/free-prior-and-informed-consent-protecting-indigenous

“Free, Prior and Informed Consent (FPIC) is one of the most important principles that Indigenous Peoples believe can protect their right to participation. It is embedded in the right to self-determination. The duty of States to obtain Indigenous Peoples’ FPIC entitles Indigenous people to effectively determine the outcome of decision-making that affects them, not merely a right to be involved.” --UN Expert Mechanism on the Rights of Indigenous Peoples

Free, Prior and Informed Consent (FPIC) is an emerging standard in the dialogue on Indigenous Peoples rights; some argue that it is becoming part of customary international law. At Cultural Survival’s recent board meeting in October, Stella Tamang (Tamang) from Nepal, Grand Chief Edward John (Tl’azt’en) from Canada, Vincent Nmehielle (Ikwerre) from Nigeria, and Nicole Friederichs weighed in on what this concept actually means in practice. They see FPIC as an important standard Indigenous people can use to claim their rights to self-determination, consultation, and participation in decision-making. Governments and corporations can no longer ignore these principles.

Summary and conclusions of "The Congress for Life, Autonomy, and Territorial Permanence" in La Guajira, Colombia:

By: Emma Banks
Anthropology Ph.D Student
Vanderbilt University

 Between August 7 and 9, communities affected by the Cerrejón coalmine in La Guajira hosted "The Congress for Life, Autonomy, and Territorial Permanence." During these three days, with support from the NGOs Cajar and CINEP, communities came together to host a tribunal against aggression by the mine in their territory, a visit to sacred Afro-Colombian and indigenous sites, and Autonomous Consultation voting in two Wayuu communities.  This event was the first of its kind in Colombia.  Representatives of national and international NGOs and human rights organizations attended the event as observers and jury members on the tribunal.

I had the honor of being a jury member in the "Tribunal Against Mining Agression in La Guajira" on August 7 held in El Cerro de Hato Nuevo, a Wayuu reservation.  During the first session, we heard testimony from Afro-Colombian and indigenous people accusing Cerrejón of violating their cultural and autonomous rights.  Indigenous Wayuu representatives spoke of losing their language and cultural practices.  All communities in the area have lost access to communal lands on which they once fished, hunted and gathered medicinal plants.  Displaced communities such as the Afro-Colombian community of Tabaco recounted how their social fabric has been torn when they lost their lands.  Communities traditionally reliant on agriculture have lost their ability to provide for their families from the land.  Both Afro-Colombian and Wayuu indigenous witnesses claimed Cerrejón has violated their ancestral land, and thus their autonomy and rights to cultural preservation.  Furthermore, many reported that Cerrejón attempted to divide communities by intimidating and bribing leaders, offering compensation to only select families, and discouraging resistance.

The Real Costs of Public Protest (from an industrial and business perspective)

June 26, 2014

A May 2014 joint report from the University of Queensland Centre for Social Responsibility in Mining and the Harvard Kennedy School confirms the real costs of public opposition to development.

Researchers analysed over fifty mining, oil and gas projects in India, Chile, Peru, Australia and Argentina to examine and total the costs of public opposition to their businesses. The results were staggering but not unexpected from industries often faced with costly cancellations and delays caused by public objection.

"There is a popular misconception that local communities are powerless in the face of large corporations and governments," according to key study contributor Dr. Daniel Franks.

Franks asserts that this sentiment is false and concludes that the study's findings "show that community mobilization can be very effective at raising the costs to companies."

The study points out that project delays resulted in the most frequent source of costs to companies, with approximately $20 million per week wasted for mining projects valued between $3 billion and $5 billion.

However, project suspensions caused the most overall economic damage. One example the study referenced is a gold and copper mine established in Peru by the Newmont Mining Corporation. The mine, known as the Conga project, aimed to extract 350,000 ounces of gold and 120 million pounds of copper from Peru's Cajamarca region annually.

But after some initial investments in the $5 billion project were made, local residents grew increasingly concerned that the mine could have negative effects on water quality in the area. Citizens' concerns eventually lead to a series of protests that escalated into violence and a government order to halt all work at the mine. Two years later, the mine remains closed, leaving Newmont with a
$2 billion loss on the investment.

Switching to an industry-wide perspective, in 2012 Swiss financial firm Credit Suisse found "environmental, social and governance risks" across the Australian mining, oil and gas sector to be worth $8 billion.

According Dr. Frank, this level of risk could be negated if companies focus more on investment in risk mitigation at the outset of projects rather than acting retroactively. Franks argues that companies should focus on "meaningful"
dialogue at the outset of a project and that this attempt to reach out "is something that the best practice companies are doing at the moment, and something that the International Council for Mining and Metals argues that companies should be doing."

Contributor Rachel Davis of the Harvard Kennedy School's Corporate Social Responsibility Initiative notes that "it is much harder for a company to repair its relationship with a local community after it has broken down; relationships cannot be 'retro-fitted.'"

What is the best course of action for companies going forward then? While there may not be one perfect formula, companies can start by taking a few important steps to formulate a strategy that minimizes public opposition.

Starting early

Strive to create an open environment for dialogue. Even if opposition appears limited, it only takes a few angry voices to change the atmosphere into one of intimidation and disapproval. Local residents may want a development to succeed, but not at the cost of angering their neighbors. Therefore, the moment a project is internally approved, project managers must have an infrastructure for communication ready, both on the ground and in cyberspace. This way, rapid communication to build an advocacy network can take place by the time opposition starts. Receptive citizens will then have the resources necessary to receive information and voice approval.

Reaching out

Those with new mining proposals must engage residents as their new neighbors by creating a dialogue and allowing residents to develop a sense of familiarity with the company coming to town. Successful projects inform and educate the community using a variety of communication vehicles, including phone calls, direct mailing, press conferences and releases, and open house information sessions. People are invested in their communities; they want to be informed and to know the assets and drawbacks a project will bring. If developers neglect to inform them, opposition groups will.

Furthermore, some locals may have very legitimate concerns that require in-depth answers. It is paramount that these concerns are answered in plain and direct language from the company itself. Rather than ignoring a citizen's complaint, engage the resident even if a solution is not immediately feasible.

Keeping in touch

Companies must also build a database of supporters and call upon them.

Supporters want the success of the development, and they will help if asked. Let both advocates and the community know about the status of a project - where it is doing well and where it needs help. A few supportive voices at a town meeting will make a significant difference.

Additionally, social media cannot be neglected. Creative content that can be shared easily is an important digital dialogue facilitator.

Staunch opposition will never tire out in its public outreach, and neither can those putting forth the proposal.

Turning local support into legislative support

Finally, supporters must be made aware that success at the local level can be overturned at the state level.

Teach supporters how to engage most effectively with their local and state elected officials through the platforms upon which officials most frequently engage.

Make sure that every mining project is accompanied by a grassroots advocacy campaign that will keep the project popular both with locals and state governments. Politicians will be much more likely to stand behind the industry if it is backed by voting constituents.

With a strong local and legislative advocacy network built by an active grassroots campaign, mining projects will reduce the risk of project delays that can cost millions.

http://www.mining.com/web/the-real-costs-of-public-protest/?utm_source=digest-en-mining-140625&utm_medium=email&utm_campaign=digest

The Colombian Caravana UK Lawyers group letter to Cerrejon

Through this letter, The Colombian Caravana UK Lawyers Group, a group of international lawyers that monitor human rights abuses faced by legal professionals in Colombia, ask Cerrejón for explanations regarding their negative impacts in the local communities of La Guajira, Colombia, despite their “social responsibility” programs. The Colombian Caravana expresses their concern for the health of workers and community, the environment, and the lack of transparency in the process of prior consultation (consulta previa) in their expansion project. In addition, this group of lawyers request legal information and make some interesting proposals.

https://docs.google.com/file/d/0B3XAZ4n5WrNfOTlxc2hNMjI4aVk/edit?usp=sharing

Problems in consultation processes worldwide

Multinational companies are required carry out prior consultation to local communities before a project. These companies often companies claim that their processes of consultation is transparent. However, the methodologies of these and how these affect local communities give us a different sense of the reality. This happens not only in La Guajira, but also in other places around the world. Read about two cases: one in Panama and one in the Northwest Territories.
Go to this link
http://www.culturalsurvival.org/ourpublications/csq/article/community-consultation-mining