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Emily, this is a great post in lot of ways. it's properly illuminating and grippingly full of interesting detail. Sorry to sound like a minor associate professor somewhere, but I really found your writing compelling.

I have two thoughts to chip in - not to disagree, actually, but you got me thinking about the issue of local consent and in particular where indigenous populations are involved. 

One thought is that in the US or UK, and most developed nations I can think of, a big project with national revenue or other significance - new airport, big mining project, nuclear power station - would go through local planning bodies but through appeal would always end up with the national (or sometimes state - in Scotland, too, Scottish) government. Revenue raising, when it might involve a fair proportion of national earnings (like a big project in a small African state - Simandou for example) - can't really be have 'mere' applied to it. That said, I think you cover that with the James Anaya quote. There's always going to have to be a balance applied between local and national interest. 

My other point is really just an extension of your really interesting discussion of what local interest is and how it can be judged. I guess where there are local democracies then they should be allowed to operate, but where there isn't it's terribly important that projects can show how they benefit local people. Often, they can but they're not challenged enough, I think. That's an economic argument, of course, and often these things are left to large human rights and environmental groups - who often put local economic interests behind their own organisations international objectives. 

That's my tuppence-worth. Thanks again for your piece. eric

Hello Emily, very interesting piece, thanks for sharing it in GOXI.

You raise valid points about companies needing clearer guidelines for implementation. By looking at the Latin American experience with FPIC I think that one incentive companies have to not care enough about FPIC is the lack of local regulations on the matter. Most countries in the region with large indigenous populations have internalized the FPCI principles on paper, but lack specific regulations and institutions to implement them. Also, when regulations exist and are not respected, there is often a lack legal force to enforce them (e.g. courts are not independent). It is great that the industry is being proactive on this issue but I wonder if there is any form of market incentive that could bring States closer into supporting these innovations?

Although I respect the sentiment behind "no means no", I have found that things are not always so absolute in the wide world. Sometimes a no on an extractive project means no, but sometimes it means other things like "not under these circumstances or these terms" or "not with this company" or there are political reasons or there is division within the community and some say yes and others no. It is not so clear cut in every case.

Thanks for sharing your comments. Picking up on the issues that Jodi raises, I’m in full agreement that participatory decision-making processes do not always proceed smoothly and result in unanimous agreement. Nevertheless, communities manage to work through these challenges. Note that FPIC does not require that every individual member of a community agree with the decision that a community makes. After internal discussion and debate, some of the communities that Oxfam and our partners support in different parts of the world have decided that oil or mining projects should not proceed on their lands. These decisions should be respected. This will help to avoid violating the rights of indigenous peoples (who have the right to self-determination) and create an enabling environment for the projection of the human rights of all affected communities.

Also keep in mind that there is a strong business case for community consent. FPIC can be a tool to reduce social conflict and increase the legitimacy of the project in the eyes of all stakeholders. Ultimately if a project developer is unable to secure the consent of the local community they increase the risks to their project, which can have a significant impact on their bottom line (see Costs of Company-Community Conflict in the Extractive Sector).

To Paul’s comment on bringing States on board, you may be interested in a recent report produced by Oxfam and the Due Process of Law Foundation looking at consultation laws in Latin America, examining implementation challenges, and proposing recommendations for States and other actors. The report is posted here (executive summary in English will be available in the next few weeks).