Focus 2. PIC: a tool for empowering indigenous peoples

1Prior informed consent – PIC – must be obtained from the competent authority designated by States which are parties to the Nagoya Protocol. In fact, this PIC is often inseparable from the Mutually Agreed Terms (MAT) contract analysed by Anne Etienney-de Sainte Marie.

2A very different question arises when PIC is asserted as a means of empowering indigenous peoples and local communities.

3Indigenous communities hold their own specific right: the right to free, prior and informed consent. This right is enshrined in various international texts, both general and specific, of declaratory or mandatory scope, which do not fall under the same regime and do not have the same force. This right is enshrined in international conventions, then it is binding upon States. It could even be considered as having international customary value.

4This particularly concerns:

• the United Nations Declaration on the Rights of Indigenous Peoples;
• the Indigenous and Tribal Peoples Convention (ILO Convention 169), International Labour Organisation;
• the World Bank Operational Manual, OP 4.10: Indigenous Peoples;
• the United Nations Convention to Combat Desertification in countries severely affected by drought and/or desertification, particularly in Africa;
• the Convention on Biological Diversity.

5On the basis of these texts, and despite differences in the terms used1 and the fields concerned (land, heritage, governance, education, etc.), we can attempt to establish a general and common description of the right to free, prior and informed consent.

6Consent: Consultation and participation are essential aspects of consent. Consultation must be carried out in good faith. Consultation requires time and an effective system of communication between the interested parties. Consent to any agreement should be interpreted as reasonably understood by indigenous peoples.

7Free implies the absence of any coercion, intimidation or manipulation.

8Preliminary implies that consent has been sought sufficiently in advance of any authorisation or commencement of activity, and that the time frames required for the consultation and consensus-building processes specific to indigenous peoples have been respected.

9Enlightened is a more difficult term to define, and assumes access to information covering (at least) the following aspects:

• the nature, scale, changes, reversibility and scope of any proposed project or activity;
• the reason(s) or objective(s) for the project or activity;
• their duration;
• the location of the areas concerned;
• a preliminary assessment of likely economic, social, cultural and environmental impacts, including potential risks and the fair and equitable sharing of benefits, taking into account the precautionary principle;
• personnel who may contribute to the implementation of the proposed project (including indigenous peoples, private-sector personnel, research institutes, government officials and others);
• possible procedures associated with the project.

10Other questions arise concerning time frames, the persons authorised to give consent, procedures and mechanisms.

11At what point should consent be involved in a decision-making process? Free, prior and informed consent should be sought sufficiently in advance of the start or authorisation of activities, taking account of indigenous peoples’ specific decision-making processes, for the assessment, planning, implementation, monitoring, evaluation and termination phases of any project.

12Indigenous peoples should be able to participate through their own freely chosen representatives and their customary or other institutions. Information should be accurate and presented in an accessible and understandable manner, including in a language that indigenous peoples can fully understand. The dissemination of this information should take into account the oral traditions of indigenous peoples and their languages.

13As a basic principle of consent, all parties must have equal opportunities to discuss any proposed agreement or project, i.e. equal access to financial, human and material resources in order to enable communities to engage in detailed and effective discussions in the indigenous language(s), as appropriate.

14Mechanisms and procedures should be put in place to verify the proper application of the principle of free, prior and informed consent, its forms, and its legal value, in such a way as to prevent it from becoming a mere formality. Monitoring and appeal mechanisms, including at the national level, and special joint-decision-making bodies should be established.

15Depending on the field, the issue to be addressed, or the national legislation, consent may be interpreted as a veto right and a right without limitations, or as a mere consultative power. How can the rights of non-indigenous peoples be protected within this framework? Whatever the circumstances, if it is proven that the criteria for consent have not been met, any consent given may be revoked.

16The right to free, prior and informed consent has at least three specific characteristics that justify its special recognition. First of all, it is a right that differs from other rights such as participation or citizenship, etc. It is a right that is useful to the people, and which allows them to benefit from and participate in development projects rather than being subjected to them. Finally, it is a right whose proper execution is required and verified in certain situations – in the framework of the Nagoya Protocol, of course – but also in other cases such as eco-certification procedures.