Free, Prior, and Informed Consent: A Critical View of a Problematic Principle

Source: Quaker Service


Free, Prior, and Informed Consent (or FPIC) is, according to the Forest Peoples Programme (a leading advocate of FPIC), “the principle that a community has the right to give or withhold its consent to proposed projects that may affect the lands they customarily own, occupy, or otherwise use.” As is typical of the international left, these high minded and noble sounding ideals are little more than a cover for their own agenda. As this particular agenda is profoundly anti-development, FPIC has been adopted enthusiastically by the environmentalist movement.

While “free”, “prior,” and “informed” are fairly self explanatory, Conservation International claims that “consent” “refers to the right of the community to agree or not agree to the project before it begins and throughout the life of the project (emphasis added). This is a telling turn-of-phrase because it directly implies that indigenous groups (and their environmentalist “allies”) see the principle of FPIC not simply as a means to veto any development/resource extraction project but also as a means to shut down ongoing concerns such as logging or mining operations even where resource extraction concessions have already been awarded by competent state authority.

The manner in which environmentalist groups are willing to use the lever of aboriginal/indigenous rights to further their own agenda can be directly seen in the way Greenpeace Canada has used the concept of FPIC to attempt to curtail logging operations in the Whiskey Jack forest of Ontario by Montreal-based Resolute Forest Products. Greenpeace’s stated goal in the matter is to stop all harvesting in any of the “traditional territory” of the Grassy Narrows First Nation.

The phrase “free, prior, and informed consent” appears in five separate articles (Articles 10, 11, 19, 28, and 32) of the United Nations Declaration on the Rights of Indigenous Peoples (General Assembly resolution adopted 13 September 2007). These articles deal with the right of indigenous peoples to be secure in their traditional homes, to be protected from the seizure of their intellectual/cultural property, compel/encourage states to obtain FPIC from indigenous populations before adopting measures that may affect them, the right of aboriginal peoples to restitution/compensation for any of their traditional resources that may have been “confiscated, taken, occupied, used or damaged” in the past and without an FPIC framework, and compel/encourage states to negotiate/cooperate in good faith the representative institutions of indigenous peoples in order to obtain FPIC agreements respectively.

Though UN declarations do not have the force of a treaty, the inclusion of the principles of FPIC in a prominent United Nations declaration can, at the very least, be expected to give the advocates of FPIC a sense of moral authority and the perception of a victory on the international stage. It should also be expected that environmental activist groups will use this same inclusion of FPIC in a UN Declaration as a lever to encourage national and local governments to adopt or enforce vigorous FPIC laws and regulations, at least where they believe those laws and regulations can/will be used to curtail development and resource extraction. Greenpeace Canada specifically cites the Declaration on the Rights of Indigenous Peoples in its publicity surrounding the Grassy Narrows controversy.

During the debates surrounding the UN Declaration on the Rights of Indigenous Peoples, both in the General Assembly and without, opponents of the resolution often cited the very vagueness of the concepts surrounding, namely which groups should and should not be counted as “indigenous.” These concerns proved prescient as both Indonesia and Peru (both original endorsers of the UN declaration) have dismissed FPIC concerns largely by simply claiming that the communities to be impacted by a given development project are not in fact indigenous and thus not subject to FPIC strictures. Indonesia has gone a step further and emphasized that as the members of communities at the center of FPIC controversies are all Indonesian citizens and thus not entitled to a special review/veto process above and beyond what any Indonesian community would get. This effectively echoes the position of former Canadian Indian Affairs Minister Chuck Strahl who advocated that Canada should reject the UN Declaration on the Rights of Indigenous Peoples largely on the grounds that it enshrined principles (like FPIC) that are inconsistent with constitutional principles, namely equal justice and protection under the law.

While the vague definitions inherent in current FPIC as currently practiced might seem to give the concept feet of clay to any person with a critical mind, it should be remembered though that leftist environmentalists view virtually their entire world through the prism of their ideology. So when a set of principles like FPIC comes into vogue which tickles their ideological funny bone by allowing them to indulge in the fantasy that they are champions of the downtrodden and exploited in addition to the saviors of the natural world they already see themselves as, they can be expected to overlook or outright deny any vagueness or inconsistencies that philosophy might contain. But moreover by playing into the savior/crusader fantasies of the international left, FPIC provides a readymade moral justification to environmentalists that can and will make them even more militant and dangerous.

By: Benjamin Wolinski

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