Lisa J. Laplante & Suzanne A. Spears, out of the conflict zone: the case for community consent processes in the extractive sector.

• Author: Chan, Connie K.
• Position: Reply to article in this issue, p. 69

1. INTRODUCTION

   Lisa Laplante and Suzanne Spears undertake an admirable agenda in their article, Extracting Without Conflict: The Case for Community Consent Processes. (1) Employing an anthropological approach to understanding community resistance to extractive industry projects, the authors posit that the escalating conflicts between extractive industry (EI) firms and host communities can be "better understood as disputes over community control of resources and the right of community members to control the direction of their lives." (2) Their proposed solution is that EI firms voluntarily engage in consent processes with host communities, with a commitment to obtaining their free, prior and informed consent (FPIC) before receiving legal authorization and financial approval of an extractive project. It is obvious that host communities would favor a process that accords them full participatory rights-including the right to withhold their consent-in development decisions affecting the land and resources on which they subsist. Laplante and Spears present the more complicated case for why EI firms should likewise be amenable to voluntary FPIC procedures, relying on the fact that community opposition can prove to be cost-prohibitive.

   While this Response in no way intends to undermine the value of voluntary corporate commitments to obtain community consent, it questions the extent to which the enforcement of community FPIC rights can or should be entrusted to private entities. While it may make business sense to pursue voluntary FPIC in certain concession agreements, others scenarios may not not present such a clear business case. Absent robust legal safeguards enforceable against corporate actors, it is somewhat misleading to regard community consent as a right creating an obligation on the part of private extractive industry firms, as such so-called rights are effectively granted or withdrawn at the behest of the company. To that end, this Response strives to restore attention on the goal of securing community participatory rights in enforceable international law and argues that, while voluntary FPIC processes are certainly desirable, they should not divert attention away from holding host state governments accountable for obtaining a community's free, prior, and informed consent before undertaking development projects that impact its land and resources. By enforcing these legal obligations against state actors, international law also strengthens the business case for FPIC compliance among non-state actors.

   This Response will first briefly outline the current scope of FPIC rights as recognized under international law and identify their limitations. Next, it will suggest why the lack of adequate community rights guarantees under international law may undermine or even defeat the business and development case for voluntary FPIC. Finally, this Response will propose that a more compelling business and development case for voluntary FPIC can be made if the FPIC model is focused less on granting communities veto power over development projects and more on achieving multi-stakeholder consensus through guarantees of robust procedural participation rights.

2. THE LIMITED SCOPE OF COMMUNITIES' RIGHTS TO FREE, PRIOR INFORMED CONSENT UNDER INTERNATIONAL LAW

   In building their business case for voluntary adoption of FPIC procedures, Laplante and Spears point to the fact that "communities--particularly of indigenous peoples-are growing more vocal and are gaining increasing recognition of their rights." (3) Other authors have similarly argued that indigenous peoples' right to free, prior informed consent is gaining "increasing currency" in international law, as recognized by various international organizations and in binding and non-binding instruments. (4) The International Labor Organization's Convention concerning Indigenous and Tribal Peoples in Independent Countries imposes treaty obligations upon ratifying states to recognize the rights or ownership and possession of indigenous peoples over the lands which they traditionally occupy or to which they have traditionally had access for their subsistence and traditional activities. (5) In addition to the ILO Convention, a fair amount of jurisprudence regarding FPIC has accumulated in recent years, particularly by the Inter-American Commission on Human Rights (IACHR). (6) Many international organizations have also issued guidelines and other non-binding norms affirming indigenous peoples' right to FPIC, including the U.N. Committee on the Elimination of Racial Discrimination, the U.N. Committee on Economic, Social and Cultural Rights, the U.N. Sub-Commission on Promotion and Protection of Human Rights, the U.N. Permanent Forum on Indigenous Issues, the World Commission on Dams, and the Convention on Biological Diversity. (7)

   Yet it is important to recognize the limited scope of this "increasing recognition" and distinguish the legally binding from the non-binding instruments. Much of this ambiguity arises from the complex nature of indigenous peoples' rights in lands and resources and the fact that ownership of subsurface minerals belongs to the state in most of the developing world. (8) Although indigenous peoples'...