Challenges and Threats

Introduction

Globally, there are approximately 450 million indigenous people, or rather, 5 per cent of the entire world’s population, spread in over 100 countries. This group of individuals seeking Anthropology dissertation help , have been present for many thousands of years, whilst focusing on preserving their traditions, culture, livelihood, as well as language and many at times, they barely survive by residing in remote, as well as isolated areas. Indigenous people face various challenges whilst preserving their cultures and most important to note, is that they have higher rates of poverty, and food security as compared to non-indigenous populations. Over the years, public attention has shifted increasingly on the issues affecting indigenous people for various reasons. However, their rights, livelihoods, as well as territories are threatened seriously by various world’s demographic pressures, which are compounded by various extractive industries who have intense appetite for resources. In this regard, this group of individuals have faced a prevalent lack of respect, especially for their cultures, and their rights have also been misused, wherefore many communities have been decimated, their lands have been dispossessed and have also been forcefully relocated.

It is notable that many indigenous people have been voicing their concerns for many years whilst holding onto the world’s diversity in line with culture, spirituality, as well as language. In this regard, in 2007, the United Nations (UN) General Assembly purposed to adopt the UN Declaration on various rights of indigenous people, and thus, recognized their rights whilst making significant mention of Free, Prior and Informed Consent (FPIC). This acted as a prerequisite, with regards to any form of activity that affected the ancestral lands, natural

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1. Fontana, L. B., & Grugel, J. (2016). The politics of indigenous participation through “free prior informed consent”: Reflections from the bolivian case. World Development, 77, 249-261
2. Pham, T., Castella, J. C., Lestrelin, G., Mertz, O., Le, D., Moeliono, M., ... & Nguyen, T. (2015). Adapting free, prior, and informed consent (FPIC) to local contexts in REDD+: Lessons from three experiments in Vietnam. Forests, 6(7), 2405-2423.

resources, as well as territories of indigenous people. However, it is evident that despite the approval that was made in 2007, the process enhanced on the implementation of the FPIC has over the years been slow and also uneven by various countries, various private sector corporations, the UN agencies, international financial institutions, and even non-governmental organizations. Precisely, in the last three years, various developmental experts have been made to understanding and recognize that FPIC is of great importance for indigenous people and also forms a basis for good practice, especially when handling issues, which concern local communities, such as involving them in making significant decisions, with regards to any proposed developmental activity. This is owing to the fact that it increases their significant sense of ownership, as well as engagement. Most importantly, it also assists in guaranteeing their rights towards development, as it is regarded as a basic human right principle.

Indigenous people

Significantly, the development of the definition of indigenous people, which is applicable to individuals of that social group, across the globe has proven to be extremely difficult, owing to diversity between different countries, regions, background, culture, conditions, as well as the history of indigenous communities. However, according to the international legal agreements like the UN Declaration on the rights of Indigenous Peoples (UNDRIP), it is worth noting that the International Labour Organization (ILO), specifically on convention 169, make implications that indigenous people share the following characteristics. First, they are self-identified as indigenous. In some cases, they are recognized by some other groups or state authorities as people who have a distinct and also a collective identity. Secondly,

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3. ibid
4. Barelli, M. (2012). Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: developments and challenges ahead. The International Journal of Human Rights, 16(1), 1-24.

indigenous people are those who have ancient historical ties, with regard to living in and also utilizing a given specific and common territory. Thirdly, they have a cultural distinctiveness, which is voluntary and can be handed down from one generation to another. In this regard, this could include various aspects of language, spiritual values, laws and institutions, as well as social organization. Finally, they have significantly experienced, or are in the process of experiencing marginalization, discrimination, dispossession, and even exclusion. Overall, it is significant noting that the aspect of recognizing and identifying a certain group of individuals as to be “indigenous people” ought not to be fully dependent on whether the state government has acknowledged them as such. Significant to note, is that the in plural, the term ‘indigenous people’ had been internationally agreed by various indigenous people, in order to be able to encompass diverse collectives, which as well purpose to fit the aforementioned characteristics of indigenous people. In this regard, it could include tribes, ethnic groups, peasants, nomads, amongst others.

The concept of Free, Prior and Informed Consent

According to the international human rights law, all individuals are entitled to have the right to self-determination. This poses as a fundamental principle, bestowed in the international law, which has been embodied in the UN charter, as well as the international covenant on political and civil rights. FPIC and the rights of indigenous people over their ancestral lands, territories, as well as natural resources have significantly been embedded within the instituted universal right towards self-determination. It is significant noting that the normative framework of the FPIC entails a set of international legal elements and this includes the UNDRIP, the ILO, as well as the Convention of Biological Diversity (CBD) amongst others, in line with various national laws. Significantly, FPIC provides a significant and specific

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5. ibid
6. Shrinkhal, R. (2014). “Free Prior Informed Consent” as a Right of Indigenous Peoples. Journal of National Law University Delhi, 2(1), 54-65.

right, which pertains particularly to indigenous people and as such, it recognized the stipulations of the UNDRIP. In this regard, it allows indigenous people to give, or rather, withhold their consent, with regard to development projects, which may affect their ancestral lands, or their territories. In an instance where they have given their full consent, they still have the authority of withdrawing at any stage. Moreover, FPIC allows indigenous people to engage in negotiations, based on the conditions, with which development projects have to be designed, implemented, evaluated and also monitored.

FPIC provides the opinion that all project-affected individuals should have the right of being part of any process of decision-making, in various significant ways, which are considered to be consistent with the set principles that underlie the rights stipulated in the FPIC. In this regard, recommendations have been pushed forwards, for organizations, which seek FPIC to contribute towards progressively enabling people to fully exercise their right on self-determination, and also enhance the capacity of all states to fully provide for the exercise of the self-determinations right. Notably, FPIC is not only a result of the process of obtaining consent towards a given development project but also a process in itself, and one which indigenous people are given the privilege of conducting their personal independent, as well as collective discussions plus decision-making. In this regard, it is required that they do so, only in an environment whereby, they do not feel any form of humiliation or intimidation and where they are also given sufficient time of discussing, in their native language, and also in a culturally appropriate manner, especially on various matters that affect their ancestral lands, natural resources, livelihood, social fabric, governance systems, culture, as well as heritage.

Lastly, it is significant underlining the fact that FPIC process purposes not to guarantee consent, to be a result. In this regard, the result of the process of FPIC could be due to any of

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7. ibid
8. ibid

the following outcome. First is that consent of the indigenous people on a given proposed development project activity. Second is the consent after the process of negotiation, and also changes in conditions, under which a given development project will be planned, monitored, implemented and also evaluated, or the withholding of the consent. Of significant noting is the fact that consent could as well be withdrawn at any given stage of the development project.

Key element bestowed in Free, Prior and Informed Consent

All the elements bestowed in FPIC are interlinked and as such, they ought not to be regarded or rather, treated as separate elements. Notably, the first three significant elements, and those are “free,” “prior” and “informed,” often qualify and purpose to set various conditions of “consent” in the process of decision-making. In other words, consent ought to be sought before the commencement of any development project, plan or even action take place (prior). Moreover, it ought to be independently decided (free) and should be based on precise/accurate, timely and also sufficient information that is provided in a culturally-appropriate manner (informed), in order for it to be regarded as a valid result, or rather, its outcome considered in the entire process of decision-making. The definitions below purpose to build on various elements, which aid in understanding the elements of FPIC, which have been endorsed by the UN Permanent Forum on Indigenous Issues (UNPFII) and the UN-REDD program guidelines on FPIC. They are as discussed below:

Free

Free refers to a significant consent that is given voluntarily and without any form of coercion, manipulation, or even intimidation. Moreover, it refers to a significant process, which is

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9. Hanna, P., & Vanclay, F. (2013). Human rights, indigenous peoples and the concept of free, prior and informed consent. Impact Assessment and Project Appraisal, 31(2), 146-157.
10. Tamang, P. (2005). An overview of the principle of free, prior and informed consent and indigenous peoples in international and domestic law and practices. Australian Indigenous Law Reporter, 9(2), 111-116.

self-directed by a given community, from whom significant consent ought to be sought. As regarding the stipulations within FPIC, right-holders (indigenous) people purpose to determine the structure of the decision-making, the timeline, as well as the process. Information is significantly offered in a transparent and objective manner, when the right-holders (indigenous people) ask for it. Moreover, the process if deterred from coercion, bribery, rewards, or any form of condition. Of importance to note is that meetings, as well as decisions do take place at significant locations, and various times, languages, as well as formats that right-holders (indigenous people) determine. Finally, all members of the community are free to participate in the process of decision-making regardless of their social standing, gender or age.

Prior

Prior implies that consent is being sought sufficiently and in advance of any commencement or authorization of any development activity, at early stages of a development project, and not only in an instance where need arises that requires the approval from a given community. In this regard, it is important noting that prior implies that time ought to be provided, in order to understand, access, and also analyse significant information regarding a given development project. In this regard, the amount of time to be given will depend on the processes involved in the decision making, and should be approved by the rights-holders (indigenous people). In addition, sufficient information ought to be provided before the commencement of any activity, at the beginning of a given activity, process, or even phase of a given implementation that includes conceptualization, proposal, design, formation, execution, as well as following significant evaluation. Finally, the timeline for decision-making that the rights-holders

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11. Page, A. (2004). Indigenous peoples' free prior and informed consent in the inter-American human rights system. Sustainable Dev. L. & Pol'y, 4, 16.
12. Ward, T. (2011). The right to free, prior, and informed consent: indigenous peoples' participation rights within international law. Nw. UJ Int'l Hum. Rts., 10, 54.
13. ibid

(indigenous people) establish must be respected, owing to the fact that it reflects the time that is needed for understanding, analysing and also evaluating various activities under consideration, and which are in accordance with the rights-holder’s customs.

Informed

Informed refers to the nature of a given engagement and also the kind of information that ought to be provided before seeking consent and as part of an ongoing process of seeking consent. Information should be accessible, consistent, accurate, and also transparent. It should be delivered in a specified local language and in a format that tis culturally-appropriate. The objective should cover the positive, as well as the negative potential of a given proposed development project activity and it should also entail the consequences associated with giving or even withholding consent. The information should be complete and this should include various preliminary assessments of possible impacts related to economic, social, environmental, as well as cultural factors. In addition, it should include various potential risks that are associated with the development project and the benefits too. In the context of completeness, it should also include the nature, pace, size, durability, as well as cope of any given proposed project, its purpose, and even the location of areas, which will be affected. Significantly, the information should be delivered by a personnel, who is considered to be culturally-appropriate, especially in culturally-appropriate locations, and this includes the capacity building of the indigenous/local trainers. Finally, it should be delivered within a sufficient time, in order for it to be significantly understood, and also verified and should be put accessible to remote, and rural communities that include women, elderly people, people

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14. Szablowski, D. (2010). Operationalizing free, prior, and informed consent in the extractive industry sector? Examining the challenges of a negotiated model of justice. Canadian Journal of Development Studies/Revue canadienne d'études du développement, 30(1-2), 111-130.

with disability, and even youths who are often neglected. Of important noting also, is that it should be provided in a continuous basis throughout the process of FPIC, in order to enhance significant local communication, as well as effective decision-making process.

Consent

Consent refers to a significant collective decision that rights-holders (indigenous people) make and it is reached through the process of customary decision-making processes of the affected communities. It is significant noting that consent should be sought and also granted or even withheld in accordance with the unique formal or even informal dynamics of the political administration of each community. Notably, indigenous people, as well as local communities should be in a position of participating through their self-chosen representatives whilst ensuring the participation of all members of the community, including the youth, women, elderly individuals, and even individuals with disabilities. In particular, consent is decision that is freely given and as such, it may contain any response and that is a “Yes” or a “No” or even a “Yes, accompanied by conditions.” In addition, it may include various options, which may need to be reconsidered, in an instance where the proposed development project change, or in instance where new information that are connected to the proposed development project emerge. Clearly, a collective decision (obtained through a consensus, or a majority rule) that is determined by the indigenous people should be in accordance with their traditions, as well as customs. Moreover, the indigenous people should be in a position to express their right to self-determination, which should be in line with their ancestral land, culture, natural resources, or even territories. Finally, the consent can be given or withheld in

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15. MacInnes, A., Colchester, M., & Whitmore, A. (2017). Free, prior and informed consent: how to rectify the devastating consequences of harmful mining for indigenous peoples’. Perspectives in ecology and conservation, 15(3), 152-160.
16. ibid

any phase within the FPIC process and over a given period for different stages of a given development project. This implies that it is not regarded as a one-off process.

When Free, Prior and Informed Consent is required

FPIC is often required before the approval or commencement of any form of development project, which may affect the ancestral lands, natural resources, or territories that indigenous people own customarily, occupy or even use in perception of their collective rights of self-determination and also to their lands, natural resources, as well as territories and their other related properties. As a practical approach to the right of self-determination, it is significant to note that project developers should purpose to carefully consider the local communities, who may be co-habiting the areas with the indigenous people. Notably, in some cases, they will be bound to face various situations where government institutions do not recognize or acknowledge the existence of FPIC. Of importance to note that in such cases, it is important for them to involve the relevant authorities that are concerned with the process, and as such, indicate the benefits whilst linking various discussions with the international legal framework, and eventually enhancing recognition by the state through declarations, conventions, and treaties.

Benefits of Free, Prior and Informed Consent process

FPIC has various benefits to indigenous people, owing to the following reasons. First, various development projects can only be carried out, when they are in line with the needs, as well as priorities of indigenous people and also when they are in line with the rights of the

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17. Cariño, J. (2005). Indigenous peoples' right to free, prior, informed consent: reflections on concepts and practice. Ariz. J. Int'l & Comp. L., 22, 19.
18. Ward, T. (2011). The right to free, prior, and informed consent: indigenous peoples' participation rights within international law. Nw. UJ Int'l Hum. Rts., 10, 54.
19. ibid

indigenous people. It is significant noting that per se, this represents an incomparable significance/benefit for all the involved stakeholders in any development project. Secondly, it is noteworthy that inclusive participation in the course of the process (in all stages) aids in maintaining consent, minimizing certain risks such as disputes and even other kinds of conflicts, and harm to indigenous people and their ancestral lands, natural resources or territories. Moreover, it also minimizes the risk of damaging the reputation of the organization that is implementing the project. Of importance noting also, is that inclusive participation enables the building of a trust-worthy relationship between the indigenous people and the project managers and it also informs project managers on the better ways of targeting various beneficiary needs, as well as expectations, and finally, strengthens the possibilities for the enhancement of future collaborations.

Conclusion

Based on the provisions above, it is worth noting that FPIC is considered to be a significant tool, which allows indigenous people to control their ancestral lands, natural resources, as well as territories. This paper makes it evident that for indigenous people, FPIC poses as a significant tool that ensures that their significant needs, as well as priorities are taken into consideration. In this regard, the process enables them to be well-informed regarding all aspects that a given project may entail and how the project will affect them. In this regard, they are in a position of exercising control and managing their ancestral lands, natural resources, as well as territories. Moreover, they are also put in a position whereby, they can be able to command significant respect for their culture, and their right to self-determination, especially with regards to their right to development as a distinct people.

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20. McGee, B. (2009). Community referendum: participatory democracy and the right to free, prior and informed consent to development, The. Berkeley J. Int'l Law, 27, 570.
21. MacKay, F. (2004). Indigenous peoples' rights to free, prior and informed consent and the World Bank's Extractive Industries Review. Sustainable Dev. L. & Pol'y, 4, 43.

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Bibliography

Barelli, M. (2012). Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: developments and challenges ahead. The International Journal of Human Rights, 16(1), 1-24.

Cariño, J. (2005). Indigenous peoples' right to free, prior, informed consent: reflections on concepts and practice. Ariz. J. Int'l & Comp. L., 22, 19.

Fontana, L. B., & Grugel, J. (2016). The politics of indigenous participation through “free prior informed consent”: Reflections from the bolivian case. World Development, 77, 249-261.

Hanna, P., & Vanclay, F. (2013). Human rights, indigenous peoples and the concept of free, prior and informed consent. Impact Assessment and Project Appraisal, 31(2), 146-157.

MacInnes, A., Colchester, M., & Whitmore, A. (2017). Free, prior and informed consent: how to rectify the devastating consequences of harmful mining for indigenous peoples’. Perspectives in ecology and conservation, 15(3), 152-160.

MacKay, F. (2004). Indigenous peoples' rights to free, prior and informed consent and the World Bank's Extractive Industries Review. Sustainable Dev. L. & Pol'y, 4, 43.

McGee, B. (2009). Community referendum: participatory democracy and the right to free, prior and informed consent to development, The. Berkeley J. Int'l Law, 27, 570.

Page, A. (2004). Indigenous peoples' free prior and informed consent in the inter-American human rights system. Sustainable Dev. L. & Pol'y, 4, 16.

Pham, T., Castella, J. C., Lestrelin, G., Mertz, O., Le, D., Moeliono, M., ... & Nguyen, T. (2015). Adapting free, prior, and informed consent (FPIC) to local contexts in REDD+: Lessons from three experiments in Vietnam. Forests, 6(7), 2405-2423.

Shrinkhal, R. (2014). “Free Prior Informed Consent” as a Right of Indigenous Peoples. Journal of National Law University Delhi, 2(1), 54-65.

Szablowski, D. (2010). Operationalizing free, prior, and informed consent in the extractive industry sector? Examining the challenges of a negotiated model of justice. Canadian Journal of Development Studies/Revue canadienne d'études du développement, 30(1-2), 111-130.

Tamang, P. (2005). An overview of the principle of free, prior and informed consent and indigenous peoples in international and domestic law and practices. Australian Indigenous Law Reporter, 9(2), 111-116.

Ward, T. (2011). The right to free, prior, and informed consent: indigenous peoples' participation rights within international law. Nw. UJ Int'l Hum. Rts., 10, 54.