The Operationalization of the Principle of Free, Prior and Informed Consent: A Duty to Obtain Consent or Simply a Duty to Consult?

• Author: Iseli, Claudia

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND: INDIGENOUS COMMUNITIES, THE EXTRACTIVE INDUSTRY, AND THE PRINCIPLE OF FREE, PRIOR AND INFORMED CONSENT A. The Relationship Between Indigenous Communities and the Extractive Industry in Colombia B. The Principle of Free, Prior and Informed Consent II. THE PRINCIPLE OF FREE, PRIOR AND INFORMED CONSENT IN LAW A. Treaty Law: Indigenous and Tribal Peoples Convention (No. 169) B. Soft Law: United Nations Declaration on the Rights of Indigenous Peoples C. National Law: The 1991 Colombian Constitution III. The Principle of Free, Prior and Informed Consent A. The Operationalization of FPIC in Colombia, Other States, and Institutions B. The Importance and Strengths of FPIC C. FPIC's Shortcomings and Challenges D. How Could the Operationalization of FPIC Be Improved? CONCLUSION INTRODUCTION

"Oil is the blood of Mother Earth, ... it belongs in the ground, where it sustains the world below. Up here, it only causes violence and death." (1) This statement was made by Luis Caballero, the vice-president of the Traditional U'wa Authority, an indigenous community that is located in northeastern Colombia. (2) Since the 1990s, the community has been fighting continued attempts of conducting oil exploration in the Siriri oil block (formerly called Samore), an area that is part of their traditional lands, because they are worried that the explorations will result in increased violence. (3) Their fight has become one of the most well-known examples of indigenous communities defending their rights against big multinational oil corporations and the State.

The aim of this Article is to take a closer look at the principle of free, prior and informed consent (hereinafter FPIC) and the obligation to consult that exists in the context of natural resource extraction from indigenous lands. More specifically, this Article will analyze how--in the context of natural resource extraction from indigenous territories--FPIC has been operationalized, how this operationalization could be improved, and to what extent FPIC is preferable to the duty to consult. The Article argues that despite FPIC gaining in popularity, there has not been a correct and successful implementation of FPIC. A correct implementation of FPIC is crucial to the respect of indigenous peoples' right to self-determination and therefore, preferable to the principle of prior consultation. As a consequence, the author urges States to improve their operationalization of the principle.

For this purpose, we will take a closer look at Colombia's implementation of FPIC. Part I of this Article will give an overview of both the relationship between indigenous communities and the extractive industry in Colombia, and the concept of FPIC. Part II will discuss the legal bases for FPIC in both international law and in the Colombian legal system. Part Ill will analyze the development of FPIC in Colombia, other national jurisdictions, and institutions; it will explain the importance and strengths, but also the limits and weaknesses of FPIC. Lastly, the Article explores how the operationalization of the principle could be enhanced by, for example, improving the respect for the right to express opposition, by mitigating power imbalances, and by ensuring that the consent is really informed.

1. BACKGROUND: INDIGENOUS COMMUNITIES, THE EXTRACTIVE INDUSTRY, AND THE PRINCIPLE OF FREE, PRIOR AND INFORMED CONSENT

   1. The Relationship Between Indigenous Communities and the Extractive Industry in Colombia

      Latin American States have increasingly turned towards resource extraction and export as a source of revenue as a reaction to debt and diminished income from agricultural exports due to the competition from U.S. heavily subsidized agricultural exports. (4) As a result, crude and refined petroleum accounts for around 33 percent of Colombia's exports. (5) Multinational resource extraction corporations have taken advantage of technological advances to find natural resources in the most remote corners of the planet, which are often areas that are part of the traditional lands of indigenous communities. (6) According to the National Indigenous Organization of Colombia, around 25 percent of the national territory is legally recognized indigenous territory and a big part of that constitutes the nation's oil reserves. (7)

      Indigenous peoples are heavily impacted by natural resource extraction because they are especially dependent on and attached to their traditional lands. This dependency is exacerbated by the fact that they already experience a high level of social and economic disadvantage due to the marginalization and discrimination they have been subjected to for generations. (8) In addition, the National Indigenous Organization of Colombia has found that the oil industry is particularly harmful for indigenous communities since exploration and extraction projects often lead to a breakdown of the native economy and culture. (9) In Colombia the aforementioned impact on indigenous peoples is accompanied by the dangers of the civil conflict in the country. The left-wing guerrillas and the right-wing paramilitary groups (10) are both attracted by the extra revenue they can earn from terrorizing or cooperating with the local officials or the oil company itself. (11) As a result, oil companies in Colombia receive military protection by paying $1 to the government for every barrel of oil that is produced, or they directly negotiate with either the military, paramilitary, or private security firms to protect them. (12) This increased militarization in oil exploring regions has exacerbated the armed conflict, increased human rights abuses, and forced displacements of indigenous peoples in Colombia. (13) It is therefore not surprising that indigenous communities like the U'wa are worried about the oil explorations in their traditional territories. (14) But how do indigenous peoples voice their concerns, and do they have the opportunity to participate in the decisionmaking process of something that affects them in such a profound way? The principle of free, prior and informed consent attempts to give indigenous communities a meaningful way to participate in this decisionmaking process.

   2. The Principle of Free, Prior and Informed Consent

      In order to protect indigenous peoples' rights and to ensure they have a say and can determine their own development priorities when faced with projects and decisions that might affect them and their territories, international policy and civil society circles have introduced the principle of free, prior and informed consent. (15) FPIC "recognizes indigenous peoples' inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them based on the principle of informed consent. Procedurally, free, prior and informed consent requires processes that allow and support meaningful choices by indigenous peoples about their development path." (16)

      FPIC sets forth four interrelated elements which must be satisfied in order for an agreement between indigenous communities and the State or the extractive company to be legitimate and valid. (17) The element "free" requires that there be no coercion or intimidation. "Prior" requires that the relevant authorities need to obtain consent before any activities are commenced and that indigenous communities should be given sufficient time for their decision-making process. (18) The term "informed" means indigenous communities need to not only have received all necessary information, but also that this information is accurate, objective, and understandable. (19) Finally, "consent" requires that indigenous communities have agreed to the project in question. (20) Although FPIC is increasingly accepted and even endorsed by international policy and law, questions remain with regard to its proper implementation, the exact meaning of "consent," and whether that means that indigenous communities have veto rights. (21) Chapter IV revisits these questions by discussing operationalization of FPIC, and ways to improve it.

2. THE PRINCIPLE OF FREE, PRIOR AND INFORMED CONSENT IN LAW

   In order to be able to analyze the operationalization of FPIC it is necessary to first explain the principle by presenting its origins and where it can be found in law. We will start by looking at treaty law, followed by a soft law instrument that lacks binding force, and finally we will look at how this international law principle has been integrated into national systems, specifically the Colombian legal system.

   1. Treaty Law: Indigenous and Tribal Peoples Convention (No. 169)

      In 1989, the International Labour Organization (ILO) adopted the Indigenous and Tribal Peoples Convention (No. 169) (hereinafter ILO Convention No. 169), (22) the first and only multilateral treaty that specifically focuses on the rights of indigenous peoples. (23) Article 6(l)(a) states that governments have the obligation to consult the concerned indigenous communities "through appropriate procedures" and "through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly." Article 6(2) further clarifies that "[t]he consultations carried out ... shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures." Last but not least, Article 7 explains that indigenous peoples "have the right to decide their own priorities for the process of development as it affects ... the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development."

      This obligation to consult in order to seek consent, which is mentioned in Article 6(1)(a), Article 6(2), and Article 7 of ILO Convention No. 169, is seen by...