Manufacturing consent: The U.S. position on Free, Prior and Informed Consent

PHOTO Credit: Barack Obama.

On 16 December 2010, US President Barack Obama announced that “in April, we announced that we were reviewing our position on the U.N. Declaration on the Rights of Indigenous Peoples. And today I can announce that the United States is lending its support to this declaration.”

When the applause died down, Obama continued: “The aspirations it affirms – including the respect for the institutions and rich cultures of Native peoples – are one we must always seek to fulfill.” Then he added that “we’re releasing a more detailed statement about U.S. support for the declaration.”

When UNDRIP was adopted by the UN General Assembly on 13 September 2007, the US was one of four countries that voted against, the other three being Canada, Australia and New Zealand. (There’s a good overview of the history of UNDRIP and why the US should endorse it, on Daily Kos: “The UNDRIP. It’s time, Uncle Sam.”) All four countries have now amended their position on UNDRIP.

But whether the US will actually uphold the rights in UNDRIP is another matter. The “more detailed statement” that Obama mentioned in his speech in December 2010 is available here. It includes the following extraordinary statement explaining what the US understands by free, prior and informed consent:

[T]he United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.

This statement has serious implications for indigenous peoples’ rights. UNDRIP makes several references to free, prior and informed consent. As a thought experiment, try replacing the word “consent” with the word “consultation” in the following extracts from UNDRIP and note how the meaning is distorted beyond recognition:

Article 10
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous
peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Article 29
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

Article 32
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

On 12 May 2011, the US government issued a statement on the International Finance Corporation’s Policy, Performance Standards and Access to Information Policy, which echoed the government’s position on UNDRIP:

With respect to the concept of Free, Prior and Informed Consent (FPIC), as the U.S. explained at the time it announced its support for the UN Declaration on the Rights of Indigenous Peoples, the U.S. understands the concept of ‘free, prior and informed consent’ or ‘FPIC’ to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken… The U.S. supports additional protections for indigenous peoples in the context of certain projects with special circumstances. However, the U.S. does not believe there is an international consensus in favor of a definition of FPIC that requires the agreement of indigenous peoples.

The implications of the US position on FPIC has serious implications for REDD – whether in the formulation of safeguards under the World Bank’s Forest Carbon Partnership Facility, UN-REDD or at the UNFCCC level. While consultation is an important part of REDD, there is a fundamental difference between consultation and consent.