Indigenous Peoples: Collective Rights, FPIC and Equitable Benefit Sharing

By: Robie Halip

Indigenous PeoplesIndigenous PeoplesWORKING DEFINITION/CRITERIA•have a historical continuity with pre-invasion and pre-colonial societies that developed their territories•consider themselves distinct from other sectors of societies now prevailing in those territories or parts of them•they form at present non-dominant sectors of society•determined to preserve, develop, and transmit to future generations their ancestral territories and their ethnic identity as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems•self-identification or ascription

Study on the discrimination against indigenous peoples (Martínez Cobo Study)

Approximately 200 million in Asia- 2/3 of the estimated 370 million of the World’s Indigenous Peoples

In Southeast Asia, various names are used by governments to refer to IPs collectively such as ethnic minorities, hill tribes, native people and indigenous cultural communities.

Key IssuesKey IssuesSOCIAL, ECONOMIC, and POLITICAL MARGINALIZATION

lower literacy level lesser access to health and education services lesser access to infrastructures: electricity, communication,

water facilities, etc higher incidents of poverty based on national poverty line

standards (poorest of the poor) Political misrepresentation/ no representation

Key IssuesKey Issues History of colonization and subjugation by nation-states/

assimilation

Systematic discrimination in various forms

Non- recognition of ancestral lands, territories

Non-recognition of collective socio-cultural and political systems/customary laws

Displacements/ relocation

Conflicts and militarization

Lack of effective participation in political and development affairs

Key IssuesKey IssuesContinuing loss and destruction of land and territories brought about by:

Large scale mining, large dams, logging concessions, etc Classification of IP lands for commercial agriculture, military reservations, national parks, tourism development, etc Privatization of IP lands for Real Estate

Key IssuesKey IssuesIndigenous WomenLimited participation to decision making processes Gender based violence in situations of armed conflicts and militarization

While economic development may offer opportunities forindigenous women, it can deprive them of their existing livelihood, increasetheir vulnerability to abuse and violence and undermine their social status (A/68/279)

International laws and International laws and instruments on indigenous instruments on indigenous peoples rightspeoples rights

ILO Convention No. 169 on Indigenous Peoples and Tribal Peoples-ratified by 22 countries (Asia –only Nepal has ratified this convention)

UN Declaration on the Rights of Indigenous Peoples (UNDRIP)- 147 States in favour- adopted by the UN General Assembly in Sept 2007

Key Collective Rights of Key Collective Rights of Indigenous PeoplesIndigenous Peoples

Right to Self Determination

Right to Land Territories and Resources

Cultural Rights

Right to Free Prior and Informed Consent (FPIC)

Right to Self Right to Self DeterminationDeterminationRight to self determination includes the right of indigenous peoples to freely determine their political status and to freely pursue their economic, social and cultural development

Right to practice and strengthen their distinct Right to practice and strengthen their distinct systems of customary lawsystems of customary law

The essence of the right to self-determination is consent and control

Right to Land, Territories Right to Land, Territories and Resourcesand Resources

Right to own, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use

States shall give legal recognition and protection to these lands, territories and resources

No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned

Cultural RightsCultural RightsThe freedom of indigenous peoples to persist in, also to develop their own:

-Language, music, performing arts, literature-Worldview, religion or belief system and spiritual traditions-Knowledge and learning systems, science and technology-Customs, practices or habitual ways of doing things

Right to Free Prior and Right to Free Prior and Informed Consent Informed Consent (FPIC)(FPIC)Independent, collective

decision making of indigenous communities on matters affecting them.

In order to obtain consent, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representatives” (art. 32, para. 2, UN Declaration on the Rights of Indigenous Peoples)

Right to Free Prior and Right to Free Prior and Informed Consent Informed Consent (FPIC)(FPIC)Such consent or

agreement provides needed social license and lays the groundwork for the operators of extractive projects to have positive relations with those most immediately affected by the projects, lending needed stability to the projects. (A/HRC/24/41 )

Right to Free Prior and Right to Free Prior and Informed ConsentInformed ConsentFree: Independent process of decision-making . Free from manipulation, coercion and undue influence.

Prior: Right to undertake their own decision-making process regarding any project that concerns them before its implementation.

Informed: Right to be provided and to have sufficient information on matters for decision-making.

Consent: Collective and independent decision of affected communities after undergoing their own process of decision-making.

Features of FPICFeatures of FPIC

FPIC allows indigenous peoples to exercise control and management over their land and territories and to command respect for their cultural integrity and self-determination, especially on their development as distinct peoples.

FPIC defines the relationship and level of engagement of indigenous peoples with outside entities

Features of FPICFeatures of FPICFPIC is an iterative process that should be undertaken in good faith to ensure mutual respect and meaningful participation of indigenous peoples in decision-making on matters affecting them.

Practical measures to address power imbalances could include

Employing independent facilitators for consultations or negotiations Establishing funding mechanisms that would allow indigenous peoples to have access to independent technical assistance and advice Developing standardized procedures for the flow of information to indigenous peoples regarding both the risks and potential benefits of extractive projects. (A/HRC/24/41 )

Experiences on Experiences on FPICFPICPhilippines

-manipulation of the FPIC process by the NCIP, resulting in the fabrication of indigenous peoples’ consent-FPIC is reduced into a checklist that is used to facilitate the entry of development projects into indigenous lands regardless of the wishes of indigenous communities. -NCIP regularly deviates from its own FPIC rules when it becomes clear that the outcome of the process is likely to involve the community withholding consent.

Lack of monitoring mechanism to monitor company’s compliance to the agreement.

Philippines: Most of the FPIC implemented started at the wrong foot with companies and government agencies using economic benefits to lure the communities to give their consent.

Royalties and other benefits had become a divisive factor and source of conflict for many communities.

Indonesia

One of UN REDD’s (Reducing Emissions from Deforestation and Forest Degradation) pilot provinces in Indonesia for the implementation of the REDD+ project is Central Sulawesi. In the pilot FPIC implementation, the following lessons were gleaned:

• The FPIC guideline should include coordination with other agencies such as the District Forestry Service and the Sub-district authority among others.• Information dissemination/awareness raising should involve forest-related Technical Implementation Units• A platform for complaints management between the community and the Forest Management Unit needs to be developed.

EQUITABLE BENEFIT EQUITABLE BENEFIT SHARINGSHARING

EQUITABLE BENEFIT SHARINGEQUITABLE BENEFIT SHARINGEquitable distribution of the benefits of the projects within a framework of genuine partnership.

Direct financial benefits – beyond incidental benefits like jobs or corporate charity

should accrue to indigenous peoples because of the compensation that is due to them for the access to their territories and for any agreed-upon adverse project effects as well as because of the significant social capital they contribute under the totality of historical and contemporary circumstances

indigenous peoples should have the option of participating in the management of the extractive projects, in addition to whatever regulatory control they may exercise, in keeping with their right to self-determination. (A/HRC/24/41 )

Key Features of an Key Features of an Equitable Benefit SharingEquitable Benefit Sharing

1. Recognition and respect of the rights of affected communities

2. Sincere and good faith implementation of FPIC of indigenous communities

3. Negotiations are:a. Inclusive. There is full and effective participation of all sectors of the affected community including women, youth and people with disabilities are ensuredb. Based on mutual respectc. Transparent with full information disclosure to create an open and honest dialogue

4. Accounts for the needs and priorities of concern indigenous communities with focus to the poorest of the poor/most marginalized section

5. Provision for defining fair and just distribution of benefits6. Terms and agreements for benefit sharing are fully

disclosed

Key Features of an Key Features of an Equitable Benefit SharingEquitable Benefit Sharing7. A mechanism for grievance and resolving disputes is established. Provisions on sanctions should also be provided.8. Setting up of a participatory monitoring mechanism to monitor the implementation of the project and the agreement9. Benefit sharing arrangements should be based on annual reviews throughout the life of the activity. Incomes from any extractive activity must cover all costs associated with closure and restoration and include sufficient funds for potential future liabilities10. Needed capacity is provided to the affected communities for them to be able to effectively utilize the benefits they will derive from the project11. Corporate social responsibility should not be construed as part of the benefit sharing

Access and Benefit Access and Benefit Sharing (ABS), Sharing (ABS), Nagoya ProtocolNagoya ProtocolPURPOSE1.Generate benefits for poverty alleviation and nature conservation;2.Support capacity development by transferring technologies, knowledge and skills;3.Enhance social development;4.Ensure accountability and good governance at all levels.

The core mechanisms of ABS, and the basis for any agreement between users and providers of genetic resources, are Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT) .

Experiences on Experiences on Benefit SharingBenefit SharingIndigenous peoples are guaranteed a percentage of profits from the extractive operation or other income stream and are provided means of participation in certain management decisions

In some cases the indigenous people concerned is provided a minority ownership interest in the extractive operation, and through that interest is able to participate in management decisions and profits from the project. (A/HRC/24/41 )

Prospective Prospective Regulatory Regulatory Mechanism for the Mechanism for the EI in ASEANEI in ASEAN

Elements for a Prospective Elements for a Prospective Regulatory Mechanism for the Regulatory Mechanism for the EI in ASEANEI in ASEAN

1. Recognizes the collective rights of Indigenous Peoples and includes FPIC as one of the safeguards for indigenous communities with a view of integrating indigenous peoples rights in national/local legislations and regulations

2. Recognizes and respects international human rights norms and frameworks

3. Integrates the principles of Protect, Respect and Remedy (SR on Business on Human Rights)

Elements for a Prospective Elements for a Prospective Regulatory Mechanism for the Regulatory Mechanism for the EI in ASEANEI in ASEAN

4. Effective and accessible grievance mechanism integrating the customary redress mechanisms of indigenous peoples5. Conduct of social, cultural and environmental impact assessments is clearly stipulated6. Identification of No Go Zones particularly in key biodiversity areas, sacred places of indigenous communities, agricultural areas, etc

Prospective Regulatory Prospective Regulatory Mechanism for the EI in ASEANMechanism for the EI in ASEAN

The State’s obligation to protect human rights necessarily entails ensuring a regulatory framework that

fully recognizes indigenous peoples’ rights over lands and natural resources and other rights that may be affected by extractive operations; mandates respect for those rights both in all relevant State administrative decision-making and in the behaviour of extractive companies; provides effective sanctions and remedies when those rights are infringed either by government or corporate actors.

(A/HRC/24/41 )

Working Group on the issue of human rights and transnational corporations and other business enterprises

A comprehensive policy framework should:

> ensure the full recognition and operationalization of the right of indigenous peoples to self-determination and to participate in decision making in matters affecting their rights; their right to “determine and develop strategies for exercising their right to development” and “for thedevelopment or use of their lands or territories or other resources” and the principle of FPIC

> establish effective remedy mechanisms, which should be binding for State authorities and the private or state-owned enterprises involved (A/68/279)

Prospective Regulatory Prospective Regulatory Mechanism for the EI in ASEANMechanism for the EI in ASEAN

Guiding Principles on Business and Human Rights

business enterprises have a responsibility to respect internationally recognized human rights and that this responsibility is independent of State obligations

companies should perform due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.

Prospective Regulatory Prospective Regulatory Mechanism for the EI in ASEANMechanism for the EI in ASEAN

Provisions for impact prevention and mitigation

based on rigorous impact studies developed with the participation of the indigenous peoples concernedspecific to the impacts identified with regard to particular rights that are recognized under domestic or international lawinclude mechanisms for participatory monitoring during the life of the project, as well as provide for measures to address project closure.

Elements for a Prospective Elements for a Prospective Regulatory Mechanism for the Regulatory Mechanism for the EI in ASEANEI in ASEAN

Grievance Mechanisms

In cases in which a private company is the operator of the extractive project, company grievance procedures should be established that complement the remedies provided by the State. The grievance procedures should be devised and implemented with full respect for indigenous peoples’ own justice and dispute resolution systems.

Conditions for States or third party business enterprises to achieve and sustain agreements with indigenous peoples for extractive projects include: a.adequate State regulatory regimes (both domestic and with extraterritorial implications) that are protective of indigenous peoples’ rightsb.indigenous participation in strategic State planning on natural resource development and extraction; corporate due diligencec.fair and adequate consultation proceduresd.just and equitable terms for the agreement.

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