Presence at the UN

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 39 Free, Prior, Informed Consent Prepared by Lulu A. Gimenez Module 2 OBJECTIVES 1. To understand free, prior, informed consent FPIC as an instrument of self-determination; 2. To gain an overview of key issues related to this instrument; 3. To know the provisions in the UNDRIP that pertain to FPIC; 4. To assess the extent to which the right to FPIC is respected or violated in our respective coun- tries; 5. To learn from the experiences of indigenous peoples in trying to exercise this right; 6. To identify the challenges in exercising the right to FPIC, and to define the best ways of ad- dressing such challenges. CONTENTS I. INTRODUCTION A. Background B. Definition of terms and scope II. UNDRIP PROVISIONS A. Core articles B. Related articles

III. REALITIES ON THE GROUND; EXPERIENCES AND LESSONS LEARNED

IV. CHALLENGES A. Needs, capacities, strategies B. Implementation and monitoring

I. INTRODUCTION

A. Background

Even in colonial times, it was already ac- knowledged that indigenous peoples ought to be consulted on plans that would likely affect them, and that they ought to be free to either give or withhold their consent to these plans. Rarely, however, has this principle been re- Distribute metacards to the participants and ask them to write down their answers to the question: What do you understand by free, prior, informed consent or FPIC? Collect and cluster the written replies, and refer to them as you give an input guided by the following. Suggested Method Module-2 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 40 spected, much less put in practice, in regard to the exploitation of indigenous peoples’ resources, both natural and human. In June 1989, the right of indigenous peoples to consultation – indeed to participation in de- cision-making – was for the first time enshrined in an international treaty, International Labour Organization ILO Convention No. 169. Among the Convention’s provisions are the following: Article 6 1 In applying the provisions of this Convention, governments shall: a consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legisla- tive or administrative measures which may affect them directly; b establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institu- tions and administrative and other bodies responsible for policies and programmes which concern them; Article 71 The peoples concerned shall have the right to decide their own priorities for the pro- cess of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. Article 15 1 The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to par- ticipate in the use, management and conservation of these resources. 2 In cases in which the State retains the ownership of mineral or sub-surface re- sources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascer- taining whether and to what degree their interests would be prejudiced, before undertak- ing or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities. The ILO states that the provision of mechanisms for the exercise of the right to consultation and participation in decision-making is “the cornerstone of Convention No. 169.” But it has also noted that the operationalization of these mechanisms “remains one of the main challenges in fully imple menting the Convention in a number of countries.” ILO 2009: 59 In 1997, the UN Committee on the Elimination of Racial Discrimination CERD noted that indigenous peoples had “lost their land and resources to colonists, commercial companies and State enterprises,” and urged the states which were party to the International Convention on the Elimination of All Forms of Racial Discrimination to “ensure that. . .indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relat- ing to their rights and interests are taken without their informed consent.” CERD 1997: para. 3 and 4d Module-2