Indigenous leaders at UNPFII underscore the need for genuine consent

Yahoo

15-05-2025

This story is published through the Indigenous News Alliance.
B. 'Toastie' OysterHigh Country News
Biopiracy, women's safety and critical mineral mining were all hot topics at the United Nations Permanent Forum on Indigenous Issues this year, but none of them took up quite as much space as the matter of consent and related rights. Roughly a third of the forum's panel discussions dealt with implementing the U.N. standards of Indigenous rights in nations that sometimes recognize those rights willingly but frequently ignore them. A few of the panels were specifically about the Indigenous right to free, prior and informed consent (FPIC) to decisions that impact tribal people or lands.
The U.N. listed its standards of Indigenous rights in the 2007 Declaration on the Rights of Indigenous People (UNDRIP) — 46 articles that include the rights to ancestral land and self-determination. Some member nations, like Bolivia, have used this declaration as the basis for national laws. Others, like the United States, have lagged behind in implementing or even recognizing the declaration and the rights it describes.
Since the Permanent Forum was established in 2002, said Forum Chair Aluki Kotierk (Inuit), the U.N. has made significant strides — adopting UNDRIP, for example —- but the on-the-ground reality has been slow to change. 'Let us be honest: Progress remains uneven,' Kotierk said, addressing the forum during its opening day. And even that progress, she added, is often merely symbolic.
When global Indigenous leaders and other experts broke out into smaller groups to discuss their communities' biggest issues, FPIC was on the table. Here's a look at what some leaders had to say.
Albert Barume, United Nations special rapporteur on the rights of Indigenous peoples: At a panel called 'Implementing FPIC Across the Regions,' which was hosted by the Native American Rights Fund, Barume said consent is at the center of Indigenous peoples' rights. But its purpose, he added, is to safeguard other rights. 'Free, prior and informed consent is a mechanism to redress one of the key environmental and historical injustices Indigenous people have been going through for generations,' Barume said: other people deciding things for them. This specific kind of racism violates the right to self-determination, a right Barume called 'pretty self-evident,'along with the right to racial non-discrimination. Substantive rights like these, as well as the rights to land and water, are what FPIC is meant to protect. 'It's like a gatekeeper,' Barume said. 'It's like putting a fence around substantive rights.'
Fawn Sharp (Quinalt), former National Council of American Indians president and former vice president of the Quinault Indian Nation: Sharp said in a panel examining 'The Rights of Indigenous Peoples in the Context of Just Transition Economy' that climate change presents an opportunity for the rest of the world to align with Indigenous worldviews. She noted that when it comes to environmental care, Indigenous people are far outperforming others, even with little to no resources. 'Imagine what Indigenous people could do with resources,' she said. 'I see a world transitioning to a trajectory that Indigenous people have been on since the beginning of time,' she added. 'The world is desperate for truth. The world is desperate for solutions that are timeless and proven… Only Indigenous people have that knowledge.'In another panel, Sharp said that after years of unsuccessfully pushing state and federal lawmakers to recognize FPIC, she is now working to implement it in the private sector. Elected officials, while unwilling to support Indigenous rights, she said, are beholden to corporate interests – and companies have fiscal and reputational incentives to respect FPIC.
Malih Ole Kaunga (Laikipia Maasai), executive director of IMPACT: Consent has become a buzzword because in practice it remains minimal, Kaunga said, adding that governments and companies typically just want to tick the box and move on: 'They want to demonstrate that it happened.' But he said consent shouldn't stop there. 'You can do an FPIC continuously,' he said with a hint of a smile. Continuous consent would require governments and corporations to check in with Indigenous communities throughout the life of a project, according to the needs of the community. FPIC protocols are too often externally imposed on Indigenous communities, even though every community has its own needs and cultural norms. 'There are certain laws that are practiced — they are not written,' Kaunga said. Ideally, FPIC protocols would spring from individual communities, taking the shape that works best for them, rather than being applied from the outside in a uniform way. He added that Kenyan courts have been progressive in applying FPIC, and that the process is intense and has resulted in halting several development projects. 'Free, prior and informed consent is a minimum,' he said. 'It's embedded in peoples' lives and cultures and identities.'
Christine Croc (Q'eqchi Maya), spokesperson for the Maya Leaders Alliance: FPIC protocols are merely instruments, Croc said, and can only be transformative if they are owned and operated by Indigenous people themselves. If the state alone develops FPIC protocols, she added, it undermines Indigenous ways of governance, engagement and decision-making, which can cause irreparable harm. 'States often do not understand Indigenous peoples' rights under international law,' she said.
The Maya of Belize developed their own FPIC protocols in 2014 in response to encroachment by extractive industry and the state. The state tried to file its own FPIC protocols with the courts — without consulting the Maya. But its version of protocols had regressed from consent to consultation. Another major challenge, second to state-implemented protocols, arises when Indigenous peoples have weak or eroding governance systems. There is no way Indigenous people can design an effective protocol without having a strong government first, she said. To actually enforce consent requires robust systems for community-investor negotiations, as well as benefit-sharing models. Benefit-sharing could come through Indigenous-owned and -led enterprises that bolster collective well-being, for instance. But developing such systems and models requires strong Indigenous governance. By 2022, Croc's community had finalized protocol negotiations, drawing from a Mayan framework to strengthen Mayan decisionmaking. Because of these long-term grassroots efforts, she said, the community has gained experience not just with implementing consent protocols, but also with financial administration and village-scale solar development.
Hernán Eloy Malaver Santi (Sarayaku), president of Pueblo Originerio Kichwa de Sarayaku: Santi said his community's territory is a living body entitled to its own rights. When an oil company encroached on Sarayaku territory, Santi's community disrupted its camps, drove the company out and turned down its bribes and job offers. Santi, who is also a lawyer, spent years in court pushing the government of Ecuador to take responsibility. The court eventually acknowledged state wrongdoing, including letting the oil company abandon over a ton of dangerous explosives on the community's land. But Santi said there is no political will to enforce compliance with the court's judgment. Still, the Sarayaku community now has its own FPIC protocols, which Santi said forbid mining, timber or biopiracy — the misappropriation of genetic resources and traditional knowledge — without consent. The protocols also say that any and all community projects — including health initiatives or housing — will require consultation and consent in advance. 'This protocol is binding, and the state is mandatorily respecting it,' Santi said, via an English interpreter.
Seánna Howard, law professor at University of Arizona: It's a common falsehood that FPIC is a barrier to development, Howard said, speaking in a small side room with Croc, Santi and others. But it's more accurately a safeguard against exploitation. Indigenous people often end up developing FPIC protocols defensively, only after litigation with corporations or governments. But Howard explained that adopting protocols before the pressure from an encroaching development starts will send a message to project proponents, letting them know that the people are organized, self-governing, and that they will decide the terms of engagement. Governments and companies might actually welcome this, because clarity around FPIC can help them mitigate reputational harm. 'Protocols should reflect that FPIC is more than a mere formality, more than checking the box,' Howard said, 'that the process needs to be conducted in good faith and includes the right to either give or withhold consent, at every stage of the process.' She said Africa, Latin America and the Caribbean offer a number of models showing how to develop protocols successfully.
Daniel Kobei (Ogiek), executive director of the Ogiek Peoples' Development Program: Kobei talked about the importance of domesticating protocol documents to ensure that the community in question understands them in its language and in the context of its own laws. 'We had to sit down as a community, and we learned from the Kichwa people,' Kobei said, which was challenging because their documents were in Spanish. But Kobei's community was able to use these documents as a basis to develop its own. 'This kind of system enabled us,' he said, and while it took some time, it was successful. Now his community has custom culturally appropriate FPIC protocols, which include references to Kenya's Constitution that were added to help make the document more mainstream.
Forum Chair Aluki Kotierk (Inuit): 'The global push for the so-called green transition has intensified demand for critical minerals,' she said, 'many of which lie beneath sacred Indigenous lands and territories. We cannot ignore the threat this poses to our way of life.' She called the extraction of these minerals another form of colonialism. 'We are not anti-development, but development must be on our terms, and it must be just,' she said. 'Indigenous people are not merely beneficiaries of development projects,' she said, but should also be seen as partners. Only through this can we achieve justice, respect, and sustainability for all. 'The road is long,' she said. UNDRIP is not a document to be celebrated once a year. It must guide how we treat each other on this earth. 'It is a moral, legal and collective obligation.'
'I urge U.N. entities to embed Indigenous peoples' rights at the core of their work,' Kotierk added. 'Our unity, wisdom and determination are our greatest strength. Let us continue to walk together.'