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The right to say "No": Indigenous rights experts weigh in on community consent

"I think the issue of consent goes to the very core of the rights that indigenous peoples are entitled to...because it is central to the whole notion of hegemony over property, culture, and I think their very existence."

-Rose-Marie Belle Antoine, Chair and special rapporteur on the rights of indigenous peoples for the Inter-American Commission on Human Rights

Many mining companies are promising to get the consent of indigenous peoples before setting up operations on their lands. They’re changing their policies, but will that actually give communities power? Will communities actually be able to say no?

Though companies have made improvements in this area recently, this remains a critical question.

In July, Oxfam welcomed Inter-American Commission on Human Rights (IAHCR) chair Rose-Marie Belle Antoine and United Nations special rapporteur on the rights of indigenous peoples Victoria Tauli-Corpuz at the launch of our Community Consent Index. During the event, both called on companies and governments to recognize the right of indigenous peoples to give or withhold consent for oil, gas, and mining project development affecting their lands and natural resources.  Free, Prior and Informed Consent (FPIC) is fundamental to indigenous peoples’ realization of their rights to self-determination and to development. As Tauli-Corpuz remarked, “the very notion of development can be viewed differently between indigenous and non-indigenous peoples.”

Last month I blogged about our Community Consent Index, which reviews the public policy commitments of 38 oil, gas, and mining companies around issues of community engagement and rights. The report documents an increase in company policy commitments to FPIC, with the number of corporate commitments jumping from five to 14 in just three years – while also noting that current commitments leave significant room for improvement.  Improvements are particularly needed to provide details about what FPIC commitments will look like in practice, as well as clear guarantees from companies that they will withdraw from a project if a community does not support it.

At the report launch, both special rapporteurs were clear that the right to withhold consent is fundamental to the FPIC principle.

“Of course it [FPIC] also includes the possibility that indigenous peoples will finally say no, because that’s a whole range of what Free Prior and Informed Consent is. It doesn’t mean that every time that that process is undertaken that they will have to say yes to the project,” noted Ms. Tauli-Corpuz. Commissioner Antoine said it more plainly:

“Yes, you have a right to say no. It’s not a question. Otherwise what is the meaning of consent?”

Tauli-Corpuz emphasized the importance of having inclusive FPIC consultation processes. She noted that seeking a community’s consent should entail “a whole series of consultations” and engage “various sectors in the community,” explaining that participation should, “not be limited to just talking to the elders or the men, but should also include talking to the women as well as the children who will also be the ones who will benefit or suffer from the legacies of operations.”

Commissioner Antoine noted that in just the last two years the IAHCR held 15 thematic hearings on the rights of indigenous peoples related to extractive industries, and that in every hearing FPIC emerged as a contentious issue. In Latin America, FPIC and community consultation around oil and mining projects remain hot button issues. Some countries—like Peru and Chile—have strengthened policies on consultation with indigenous peoples in recent years, but serious implementation challenges remain.

“The Oxfam report mirrors the experience of the commission in finding that there are still large gaps in how states and companies implement these clearly denunciated rights, even when there are national laws and company policies in place,” Commissioner Antoine pointed out.  “…Companies, like states, often believe that once some kind of consultation has been held—even where there is opposition from indigenous peoples—they can go ahead because there is some sort of ‘license’.”

In order for FPIC policy commitments to have any real meaning for communities, companies must recognize that communities may choose to say no to oil or mining development – and that they have the right to do so. With most corporate FPIC policies freshly minted, it remains to be seen how things will play out once they’re tested. Oxfam and others have an important role to play in holding companies’ feet to the fire.

If you would like to hear more from the special rapporteurs on the issue of community consent you can view a recording of the Community Consent Index launch here, and see Tauli-Corpuz’s full video statement here.

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Comment by Francis Agbere on August 22, 2015 at 17:26

Emily you are on point! In Ghana, Oxfam is particularly concerned about pushing through the FPIC campaign mainly in two ways: with our like-minded partners, opening up new discussions on constitutional challenges to the implementation of FPIC and championing research and dissemination of relevant information as well. The political economy and the broader legal fabric on which oil/mining firms operate is of critical advocacy concern to us on issues of FPIC. We do believe taking this discussion to the doorstep of EI companies presents a solid leverage and surely strikes a chord in the discourse. Like you indicated, the wait for the TEST intrigues us even more as the country awaits a Right To Information law. The 'fight' continues!

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