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Appendix 4 - Elements of a common understanding of free, prior and informed consent: Social Justice Report 2010

Social Justice Report 2010

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Appendix 4: Elements of a common understanding of free, prior and informed
consent
[1]

  1. What
    • Free should imply no coercion, intimidation or
      manipulation.
    • Prior should imply that consent has been sought sufficiently
      in advance of any authorization or commencement of activities and that respect
      is shown for time requirements of indigenous consultation/consensus
      processes.
    • Informed should imply that information is provided that covers
      (at least) the following aspects:

      • the nature, size, pace, reversibility and scope of any proposed project or
        activity
      • the reason(s) for or purpose(s) of the project and / or activity
      • the duration of the above
      • the locality of areas that will be affected
      • a preliminary assessment of the likely economic, social, cultural and
        environmental impact, including potential risks and fair and equitable
        benefit-sharing in a context that respects the precautionary principle
      • personnel likely to be involved in the execution of the proposed project
        (including indigenous peoples, private sector staff, research institutions,
        government employees and others)
      • procedures that the project may entail.
    • Consent
      Consultation and
      participation are crucial components of a consent process. Consultation should
      be undertaken in good faith. The parties should establish a dialogue allowing
      them to find appropriate solutions in an atmosphere of mutual respect in good
      faith, and full and equitable participation. Consultation requires time and an
      effective system for communicating among interest-holders. Indigenous peoples
      should be able to participate through their own freely chosen representatives
      and customary or other institutions. The inclusion of a gender perspective and
      the participation of indigenous women are essential, as well as participation of
      children and youth, as appropriate. This process may include the option of
      withholding consent.

      Consent to any agreement should be interpreted as indigenous peoples have
      reasonably understood it.

  2. When
  • FPIC should be sought sufficiently in advance of commencement or
    authorization of activities, taking into account indigenous peoples’ own
    decision-making processes, in phases of assessment, planning, implementation,
    monitoring, evaluation and closure of a project.
  • Who
    • Indigenous peoples should specify which representative institutions are
      entitled to express consent on behalf of the affected peoples or communities. In
      free, prior and informed consent processes, indigenous peoples, United Nations
      organizations and Governments should ensure a gender balance and take into
      account the views of children and youth, as relevant.
  • How
    • Information should be accurate and in a form that is accessible and
      understandable, including in a language that the indigenous peoples will fully
      understand. The format in which information is distributed should take into
      account the oral traditions of indigenous peoples and their
      languages.
  • Procedures / mechanisms
    • Mechanisms and procedures should be established to verify free, prior and
      informed consent as described above, inter alia, mechanisms of oversight and
      redress, including the creation of national ones.
    • As a core principle of free, prior and informed consent, all sides in a FPIC
      process must have equal opportunity to debate any proposed
      agreement/development/project. ‘Equal opportunity’ should be
      understood to mean equal access to financial, human and material resources in
      order for communities to fully and meaningfully debate in indigenous
      language(s), as appropriate, or through any other agreed means on any agreement
      or project that will have or may have an impact, whether positive or negative,
      on their development as distinct peoples or an impact on their rights to their
      territories and/or natural resources.
    • Free, prior and informed consent could be strengthened by establishing
      procedures to challenge and to independently review these processes.
    • Determination that the elements of free, prior and informed consent have not
      been respected may lead to the revocation of consent
      given.
  • It is recommended that all actors concerned,
    including private enterprise, pay due attention to these elements.

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    [1] Extract from United Nations
    Permanent Forum on Indigenous Issues, Report of the International Workshop on
    Methodologies regarding Free, Prior and Informed Consent and Indigenous
    Peoples

    (New York, 17–19 January 2005), UN Doc E/C.19/2005/3
    (2005), paras 46–49. At http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html (viewed 19 November 2010).