Prior and Informed Consent: An Introduction - Presentation

Slide 1: Overview

• Objective: Provide context for considering both the treatment of PIC in WIPO's draft Policy Objectives and Guiding Principles and the practical implementation of PIC in New Zealand
• Structure:
  Part 1: Introduction to the Principle of PIC
  Part 2: International Law and Indigenous Peoples Right to PIC
  Part 3: Implementing PIC at the National Level
  Part 3: PIC in Practice
  Part 4: Going Forward: Lessons for New Zealand
• Limitations: Only a brief introduction, not a comprehensive review of the evolution, philosophical or legal basis of PIC nor its practical implementation

Slide 2: Part 1: Introduction to the Principle of PIC

Slide 3: Background

• Took on legal meaning in two main contexts:
  • Medicine: Medical procedures regulated by national laws that define "informed" as being given sufficient information on the alternatives, and benefits and consequences of medical treatment, and "consent" as having the competency, freedom from coercion and authority to make a decision;
  • Regulation of transboundary movement of hazardous wastes: First appeared in the Basel Convention (1989), but has since been extended to other international conventions such as the Rotterdam Convention (1998), which regulates the movement of hazardous chemicals. Issues of sufficient information, competency and authority apply here as well.
• Convention on Biological Diversity 1992 ("CBD") extended the principle of PIC to issues regarding access to genetic resources and biosafety

Slide 4: PIC and Indigenous Peoples

• Emerged in response to projects and operations that have had, and continue to have, a devastating impact on Indigenous peoples
• Without rights to lands, territories and resources, including the right to control activities affecting them, Indigenous peoples means of subsistence, their identity, their socio-cultural integrity and economic security are permanently threatened as these lands, territories and resources form the fundamental basis of their cultures and well being
• This has necessitated a very high standard of affirmative protection and that standard is Prior Informed Consent (PIC)
• PIC has emerged as the desired standard to be applied in protecting and promoting Indigenous peoples' rights in the development process

Slide 5: What is PIC?

• No agreed definition
• In sum, PIC gives Indigenous communities the power to veto projects and to negotiate under what conditions they can proceed. It requires that Indigenous communities be fully informed of all project risks and impacts and that their consent be acquired before the implementation of any project.
• Four key elements commonly identified:
  1. Free
  2. Prior
  3. Informed
  4. Consent

Slide 6: Key Element: "Free"

• General principle of law that consent is not valid if obtained through coercion or manipulation
• While no legislative or regulatory measure is foolproof, mechanisms still need to be established to verify that consent has been freely obtained:
  • one suggestion is to ensure the project proponent is not the entity responsible for obtaining consent and instead, vest the responsibility in independent (politically and financially) bodies elected by Indigenous peoples
  • in the Philippines, the National Commission of Indigenous Peoples is charged with certifying the consent of indigenous peoples/communities. Nonetheless, studies demonstrate that in the Philippines, Indigenous peoples' consent is still often manipulated and coerced
  • in Australia, Land Councils had initial problems but now operating effectively
  • important factors: whether rule of law is weak, corruption, suppression etc

Slide 7: Key Element: "Prior"

• To be meaningful, PIC must be sought sufficiently in advance of any final authorisation by the State or third parties or commencement of activities
• The consent process should also be time bound to ensure those affected have enough time to: understand the information received, request additional information or clarification, seek advice, and determine or negotiate conditions - in Australia, for example, a 12 month period has been legislated
• The appropriate amount of time may vary depending on, among others, the number of affected persons, communities or peoples, the complexity of the proposed activity, the amount of information provided or requested
• Whatever the amount of time needed, a pre-determined and clearly understood deadline is important

Slide 8: Key Element: "Informed"

• Based on truthful information about the proposed activity
• Sufficient information: scope of "sufficient" is ill-defined but generally speaking, the prospective user should take a broad approach to considering externalities, particularly as the impacts of a decision to share knowledge can extend far beyond the communities being informed
• Language and comprehension issues are significant for many Indigenous peoples
• Ongoing: the time scale of the activity may be long and evolving so there should be a continuing requirement for providing information

Slide 9: Key Element: "Informed" (2)

Type of information that should be disclosed:

• the nature, size and scope of the proposed activity
• the duration of the activity
• the locality of areas that will be affected
• a preliminary assessment of the likely impact of the activity
• the reasons/purpose for the activity
• Personnel likely to be involved in both construction and operational phases (including local people, research institutes, sponsors, commercial interests and partners)

Slide 10: Key Element: "Consent"

Fundamental components:

• consultation and meaningfulparticipation: should occur in all aspects of the assessment, planning, implementation, monitoring and closure of a project
• negotiation: terms and conditions that may be attached to the granting of PIC, including requirement for new application if any change in proposed use
• authority: which group to seek consent from (can be an issue as Indigenous groups often share knowledge in common, and consent given by one group may impact the rights of other groups sharing the knowledge)
• process: should abide by customary law in obtaining consent. However, given Indigenous peoples' colonial history, there are often both traditional and imposed institutions - the precise nature of customary law may not be easily identifiable. Even so, customary law should not be dismissed - parallel process needed to revitalise and strengthen customary law systems
• form: PIC should be documented in legally binding and enforceable agreements that set forth any associated terms and conditions as well as the enforcement and reparations mechanisms to address and remedy violations.

Slide 11: Part 2: International Law and Indigenous Peoples Right to PIC

Slide 12: International Instruments

• Very few international instruments, expressly or implicitly, contain language detailing the right of Indigenous peoples to PIC
• International Labour Organization Convention No.169 (ILO 169)
  • only binding instrument exclusively concerned with Indigenous peoples rights
  • employs different standards ranging from consultation to participation, and in the case of relocation, informed consent
• Convention on Biological Diversity (CBD):
  • Article 8(j) refers to promoting the wider application of TK with the approval and involvement of Indigenous and local communities
  • No explicit reference to PIC but in 2000, the Conference of the Parties to the CBD clarified that access to traditional knowledge, innovations and practices should be subject to PIC … from the holders of such knowledge (Decision 5/16)

Slide 13: Human Rights Jurisprudence

Considerably more human rights jurisprudence on PIC than text in international instruments:

• the UN Committee on the Elimination of Racial Discrimination called upon States-Parties to "ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent" and relates PIC to the right to participate in CERD
• the UN Committee on Economic, Social and Cultural rights noted "with regret that the traditional lands of Indigenous peoples have been reduced or occupied, without their consent, by timber, mining and oil companies, at the expense of the exercise of their culture and the equilibrium of the ecosystem" and recommended that the State "ensure the participation of Indigenous peoples in decisions affecting their lives" and particularly urged the State party to "consult and seek the consent of the Indigenous peoples concerned"

Slide 14: Human Rights Jurisprudence Continued …

• The draft Declaration on the Rights of Indigenous People contains references to PIC in Articles 10, 12, 20, 27 and 30
• The Inter-American Commission on Human Rights has developed considerable jurisprudence on PIC. In 1999, finding that Nicaragua had violated, among others, the right to property by granting logging concessions on Indigenous lands in Nicaragua, the Commission held that the State "is actively responsible for violations of the right to property … by granting a concession … without the consent of the Awas Tingni Indigenous community."

Slide 15: Development Standards and Policy

• The UN Development Programme's official policy on Indigenous peoples states unequivocally that "the UNDP promotes and supports the right of Indigenous peoples to free, prior informed consent with regard to development planning and programming that may affect them"

Slide 16: International Acceptance of Indigenous Peoples Right to PIC

• Previous examples illustrate that Indigenous peoples right to PIC has been broadly accepted internationally
• WIPO's objectives/principles transfer that broad, generic recognition of Indigenous peoples right to PIC and explicitly apply it to traditional knowledge

Slide 17: Part 3: Implementing PIC at the National Level

Slide 18: Implementing PIC at the National Level

• Primary challenge is articulating PIC in practical terms (legal, policy and/or administrative measures)
• Often claimed that PIC cannot be incorporated into policies and projects because it cannot be operationalised. However, there are numerous examples where PIC has been operationalised:
  • in the context of ABS and TK, PIC was incorporated into national law and practices in 62 countries in 2000
  • the Philippines, Malaysia, Australia, Venezuela, Peru etc have legislation providing for the PIC of Indigenous peoples for activities affecting their lands and territories

Slide 19: Philippines - Indigenous Peoples Rights Act

• Recognises the right of free PIC of Indigenous peoples for all activities affecting their lands and territories including exploration, development and use of natural resources; research, bioprospecting; displacement and relocation; and archaeological explorations.
• PIC is defined as: "the consensus of all members of the [Indigenous Cultural Communities/Indigenous Peoples] to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community"
• The Act created the Presidentially-appointed National Commission on Indigenous Peoples, charged with certifying whether proposed projects have acquired the PIC of affected communities
• 1998 IPRA Implementing Rules and Regulations specify the rules

Slide 20: Australia - Aboriginal Land Rights (Northern Territory) Act 1976

• PIC has been part of the law applying to mining in Australia's Northern Territory for 30 years and is present in legislation applicable in NSW, Queensland and other states
• Consent is obtained through statutory, Indigenous-controlled and appointed Land Councils which may not consent to a mining licence unless they are satisfied that the traditional Aboriginal owners of the land in question understand the nature of the activity and any terms or conditions

Slide 21: Australia - Aboriginal Land Rights (Northern Territory) Act 1976 - Procedure

The procedure applied under the ALRA is roughly as follows:

• an application is made to the Department of Business, Industry and Resource Development (DBIRD) for an exploration license;
• the DBIRD Minister approves the applicant to enter into negotiations with a Land Council;
• the Land Council has 12 months to complete its responsibilities under the ALRA, (among others, consultation with affected traditional Aboriginal land owners); and
• ultimately, if traditional owners agree, a negotiated agreement for an exploration licence.

Slide 22: Part 4: PIC in Practice

Slide 23: Overview

• There have been, and most likely will continue to be, problems with implementing PIC but the same can be said of many policies and processes
• Key areas for application of PIC include cultural heritage, traditional knowledge, sacred sites, bioprospecting, health, natural resources (including mining), archaeological explorations, development projects
• Three case studies: Australia and the Philippines (in terms of the operationalisation of legislative provisions) and Peru and Shell (regarding a corporation voluntarily seeking PIC from local Indigenous communities)

Slide 24: Philippines - 1997 Act

• Attracted legal and political backlash with opposition from industry and government agencies. Implementation has been marred by a lack of funding, political conflicts and allegations of abuse:
  • allegations of deceit and manipulation by corporates and Commission - physically intimidating communities, issuing inappropriate certifications of consent
  • serious budgetary shortages and also conflicts of interest as mining companies covered some of the National Commissions expenses
  • invalid consent: corporations consulting with chieftains but not communities or even appointing their own Indigenous "reps" to grant consent
  • threats to cut off funding if consent for a dam not provided
  • lack of clarity regarding roles and responsibilities in the PIC process and what is required in order to demonstrate PIC
• NGOs, church organisations etc-core role in providing technical assistance

Slide 25: Australia - 1976 Act

• Today, process relatively systematized but not always the case - 1982 agreement to a uranium mine at Jabiluka commonly cited:
  • misrepresentation, manipulation and pressure from the Northern Land Council
  • threats that the mining corporation would oppose land claims if communities did not agree to negotiations
  • allegations of conflicts of interest in NLC as legal fees paid by mining companies and NLC funds tied to mining royalties
  • Aboriginal communities expressed feelings of harassment and exhaustion from the consultation process itself, endless meetings and speed of events
  • Division within the Aboriginal communities (with those living farther from the mine site being more supportive)
• NLC now more securely institutionalised and accountable to constituents

Slide 26: Peru - Shell's Camisea Project 1996-1999

• An appraisal and exploration campaign in upper Amazonia, Peru. Two world class gas fields discovered in the 1980s studied by Shell over 2 years
• Region home to a number of Indigenous communities based on six different ethnic groups as well as a highly sensitive ecosystem
• Consultations ultimately resulted in community support for the project (but as a result, not clear whether this is a true case of PIC as it wasn't tested whether Shell would have withdrawn if consent was not granted)
• Lessons:
  • importance of early and continuous consultations with entire communities, including their formal and informal institutions
  • important role of NGOs in building capacity of communities, providing input to Shell and monitoring and advising Shell's consultation processes etc
  • early consultations allowed time to incorporate concerns into project design e.g. well clusters redesigned to allow 100% helicopter/river access, no new roads

Slide 27: Part 5: Going Forward - Lessons for New Zealand

Slide 28: Lessons

Important lessons from case studies:

1. Make implementing institutions independent and accountable to Indigenous Peoples
2. Fund PIC-implementing institutions adequately
3. Do not put prospective users in charge of acquiring PIC
4. Institute clear guidelines and effective enforcement
5. Ensure proper implementation
6. For prospective users: begin discussions early, commit to high standards of consultation, develop relationships of trust (including by only committing to what can be delivered)
7. Encourage and facilitate NGOs, civil groups etc

(Ref. Fergus Mackay, 2004)

Slide 29: Summary

• PIC is an internationally recognised right of Indigenous peoples and a mechanism to ensure their other rights and interests will be respected
• Indigenous peoples have called for recognition of their right of PIC in relation to traditional knowledge - this has been captured, to a limited extent, in WIPO's policy objectives and principles
• Fleshing out the legal and ethical obligations of PIC will be difficult, there will certainly be no "one size fits all" approach
• Examples from Australia, the Philippines and elsewhere show that PIC can be operationalised and work in practice. While there has been, and will not continue to be, implementation problems, the same can be said of many policies and process and this should not excuse failure to implement and comply with PIC

Slide 30: References

• Fergus MacKay (2004) Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review
• Preston Hardison (2000) Prior Informed Consent/Prior Informed Approval: Part 1
• Aaron Goldzimer (2000) Prior Informed Consent of Project-Affected Indigenous Peoples Kennedy School Review
• Parshuram Tamang (2005) An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices

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