Free, prior and informed consent

The aim of Free Prior Informed consent (FPIC), is to establish bottom up participation and consultation of an Indigenous Population prior to the beginning of a development on ancestral land or using resources within the Indigenous Population's territory. Indigenous people (IP) have a special connection to their land and resources, they inhabit 20% of the earth's surface, these areas are environmentally rich in both renewable and non-renewable resources. The collective ownership style of most Indigenous Peoples conflicts with the modern global market and its continuous need for resources and land. To protect Indigenous peoples rights, international human rights law has created process and standards to safeguard their way of life and to encourage participation in the decision making process. One of these methods is the process of FPIC.There is criticism that many international conventions and treaties only require consultation and not consent, which is a much higher threshold. Without the requirement for consent Indigenous People are not able to veto government projects and developments in their area which directly affects their lives and cultures. FPIC allows Indigenous Peoples to have the right to self-determination and self-governance in national and local government decision making process over projects that concern their lives and resources.'Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. ' “Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly' ' 'States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. ” The aim of Free Prior Informed consent (FPIC), is to establish bottom up participation and consultation of an Indigenous Population prior to the beginning of a development on ancestral land or using resources within the Indigenous Population's territory. Indigenous people (IP) have a special connection to their land and resources, they inhabit 20% of the earth's surface, these areas are environmentally rich in both renewable and non-renewable resources. The collective ownership style of most Indigenous Peoples conflicts with the modern global market and its continuous need for resources and land. To protect Indigenous peoples rights, international human rights law has created process and standards to safeguard their way of life and to encourage participation in the decision making process. One of these methods is the process of FPIC.There is criticism that many international conventions and treaties only require consultation and not consent, which is a much higher threshold. Without the requirement for consent Indigenous People are not able to veto government projects and developments in their area which directly affects their lives and cultures. FPIC allows Indigenous Peoples to have the right to self-determination and self-governance in national and local government decision making process over projects that concern their lives and resources. Examples include natural resource management, economic development, uses of traditional knowledge, genetic resources, health care, and education. The United Nations Permanent Forum on Indigenous Issues (UNPFII) has defined the concept of Free Prior Informed Consent as the following: The UNPFII requires that Indigenous People should be consulted in a way which is appropriate for their customs. This means that not every member will have to agree. This has been criticised by some groups. The Indigenous People will determine who is to be consulted and must effectively communicate this with the Government and Developers. It is the duty of the state to make sure that FPIC has been carried out, if it has not then it is their issue to redress, not the company or the people wishing to carry out the project. The International Labour Organization requires that consultation takes place in a climate of mutual trust and circumstances are considered appropriate if they create favourable conditions for reaching agreement and consent.In a pilot study by the UN-Reducing Emissions from Deforestation and forest Degradation UN-REDD of FPIC application in Vietnam the following steps were required; The principle of FPIC within international development is most clearly stated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 10 states: Articles 11, 19, 28, and 29 of the declaration also explicitly use the term. It is further established in international conventions, notably the ILO Convention 169 on Indigenous and Tribal Peoples. Countries including Peru, Australia, and the Philippines have included FPIC in their national law. The role of indigenous peoples' FPIC in decisions about infrastructure or extractive industries developed on their ancestral domain is an issue within international law. Projects lacking FPIC are called development aggression by indigenous peoples. The issue of indigenous peoples' lack of access to accountability and grievance mechanisms to address human rights violations has been formally raised with the United Nations Human Rights Council. Asian Indigenous peoples have urged the UN to address this before the economic integration of ASEAN in 2015, given the human rights records of member states such as Myanmar and Laos, which are among the world's most repressive societies. The International Labour Organization (ILO) ] has been working with indigenous people since the 1920s, it currently has 187 member states, including New Zealand. ILO Convention 169 (the Convention) ] on Indigenous and tribal peoples is an international treaty adopted by the ILO in 1989. The Convention aims to overcome discriminatory practices affecting Indigenous People and enable them in the decision making process. The fundamental foundations of the Convention are participation and consultation. The requirement for consultation falls upon the Government of the state and not on private persons or companies, this may be delegated but ultimately the responsibility rests on the government. The need for consultation of IPs is written throughout the Convention a number of times and is referred to in : Articles 6, 7, 16 and 22. Article 6(1) states that governments should: Article 6 (2) states that this consultation will be carried out in good faith and in a form that is appropriate to the circumstances. The aim of this consultation process is to achieve an agreement or consent to the purposed development. The Convention does not allow Indigenous People to veto any developments; the condition is for mere consultation not consent. The supervisor bodies of the ILO have stated that the consultation process cannot only be information sharing that there must be a chance for the Indigenous People to influence the decision making process. If consent is not achieved the nation-state must still respect other areas of the convention that include the Indigenous peoples right to their lands. Such as Article 16 (2) requires that free informed consent must be given where is the relocation of people. The treaty is legally binding on all states that ratify it, if a state chooses to ratify they may need to adjust domestic legislation. In nations such as NZ domestic legislation such as the Resource Management Act 1991 refers to the need to consider in developments Maori relationship with land and water sites. This spiritual and practical connection that Maori have to the land has been considered in a number cases before the court including the supreme court case of Paki v Attorney General.