PFII/2004/WS.2/8 Original: English
UNITED NATIONS NATIONS UNIES
DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS
Division
for Social Policy and Development
Secretariat
of the Permanent Forum on Indigenous Issues
WORKSHOP ON FREE, PRIOR AND INFORMED CONSENT
(New York, 17-19 January 2005)
An Overview of the Principle of Free, Prior and
Informed Consent and Indigenous Peoples in International and Domestic Law and
Practices
Contribution
by
Parshuram Tamang*
Indigenous Expert (Member from Asia Region)
Permanent Forum on Indigenous Issues
United Nations
Presented at Workshop on Free, Prior and Infwormed
Consent and Indigenous Peoples, organized by
the Secretariat of UNPFII, 17-19
January 2005,UN Headquarter, New York, USA
Content
1. Context
of free, prior and informed consent and its significance
2. The
principle of Free, Prior and Informed Consent in international and domestic laws and practices
3. Towards
a common understanding of the principle of free, prior and informed consent in activities relating to indigenous
peoples
3.1 Core
values
3.2 Mechanism
and procedural considerations
3.3 Key
areas of application of Free, Prior and Informed Consent
4. Lessons,
challenges and opportunities
5. Concluding
remarks and recommendations
6. Footnotes
7. References
[* Mr.
Tamang is also the ICC member of International Alliance of Indigenous and
Tribal Peoples of the Tropical Forests; SC Member of Call of the Earth –
Ancient Wisdom for Sustaining Livelihoods, Culture and Environment; President
of International Tamang Council; and Chief Advisor and former National Chairman
of Nepal Tamang Ghedung.]
I. Context of the Principles of Free, Prior and Informed Consent and Its Significance
I. Context of the Principles of Free, Prior and Informed Consent and Its Significance
1. Indigenous Peoples’
right to free, prior and informed consent (FPIC) has been recognized by a
number of intergovernmental organizations, international bodies, conventions
and international human rights law in varying degrees and increasingly in the
laws of State[1]/.
2. Development projects
and operations, legal and administrative regimes have had and continue to have
a devastating impact on indigenous peoples, undermining their ability to
sustain themselves physically and culturally. These threats have been
documented by many studies and experiences that the Principles of FPIC of IPs
to development projects and plans that may affect them has emerged as the
desired standard to be applied in protecting and promoting their rights in the
developmental process[2]/.”
3. The United
Development Programme (UNDP) presented a report of the Inter-Agency Support
Group on Indigenous Issues on FPIC at the Permanent Forum in May 2004
(E/C.19/2004/11). Some UN agencies have, to some extent, implemented FPIC on an
ad hoc basis in line with their general guidelines or legal instruments and
principles to enhance their partnership with Indigenous Peoples (IPs). However,
it states that there is no internationally agreed definition or understanding
of the principle or mechanism for implementation.
4. The World Commission on Dam states
that the principle of FPIC should guide
the building of dams that may affect
IPs and ethnic minorities. The World Bank’s Extractive Industries Review (EIR)
concluded that recognition and implementation
of the rights of affected people to prior and informed consent is a necessary condition for extractive
projects to be successful in contributing to poverty
alleviation and sustainable development.
5. The
Working Group on Indigenous Populations
(WGIP) set an agenda item on FPIC
in July2004[3]/ as a
possible future standard setting activity (E/CN.4/Sub.2/ AC.4/2003/3). The third session of the Permanent Forum on
Indigenous Issues (UNPFII) has decided
a workshop to seek common understanding of the principle of FPIC in activities relating to
Indigenous Peoples and to report the outcome of the workshop to the Forum at its Fourth Session in May 2005[4]/.
6. The purpose of the paper is to
provide background information how FPIC has
been in use in international and
domestic legal instruments, to provide an interpretation
of the principle of FPIC within the context of international human rights, environment and development law, as
well as to derive guidelines on how
the principle should be respected in activities relating to indigenous peoples in practice, and to recommend
further improvement of policy framework to strengthen
indigenous peoples’ consent practices
and harmonize its implementation among
various agencies, disciplines and states.
II. The Principle of Free, Prior and Informed
Consent in International and
Domestic Law and Practices
A. International Level:
7. International
Labour Organisation’s Convention on Indigenous and Tribal Peoples in
Independent Countries - 169/1989 refers the principle of free and informed
consent in the context of relocation of indigenous peoples from their land
in its article 6. In article 6, 7 and 15, the convention aims at ensuring that
every effort is made by the States to fully consult with IPs in the context of
development, land and resources.
8. Rotterdam
Convention on the Prior Informed Consent procedure for certain hazardous
chemicals and pesticides in international trade, 1998 (Enforced in February
2004) applies to banned or severely restricted chemicals; and severely
hazardous pesticide formulations that may impact on human health and the
environment. This Convention was developed on the works undertaken by the UNEP
and FAO in the operation of voluntary prior informed consent procedure, as set
out in the UNEP amended London guidelines for the Exchange of Information on
Chemicals in International Trade and the FAO International Code of Conduct on
the Distribution and Use of Pesticides. (It does not refer to IPs).
9. UN
Draft Declaration on the Rights of IPs (UNDD) (Sub-Commission resolution
1994/45, annex) is an emerging instrument on the rights of indigenous peoples
that explicitly recognizes the principle of FPIC in its articles 1, 12, 20, 27
and 30. UNDD refers to the Ips’ right to determine and develop priorities and
strategies for the development or use of their lands, territories and other
resources, including FPIC from state in connection with development and
utilisation of surface and subsurface resources such as:
(a).
Article 10 on forced
relocation;
(b).
Article 12 on culture and
intellectual property;
(c).
Article 20 vis-à-vis
legislative and administrative measures taken by the States
(d).
Article 27 with regards to
indigenous peoples’ lands, territories and
resources, and
(e). Article
30 with development planning.
10. UN
Committee on the Elimination of Racial Discrimination (CERD) made observation
and general recommendations on State obligations and indigenous rights under
convention and calls upon States to “ensure that members of indigenous peoples
have 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” (GR XXIII 51 concerning IPs adopted at the Committee’s
1235th Meeting, 1997).
11. In
2000, in its concluding observation on Australia’s report, the CERD reiterated,
“its
recommendation that the State party ensure effective participation by indigenous communities in decisions
affecting their land rights, as required under article
5C of the Convention and the General Recommendations XXIII of the Committee, which stresses the
importance of ensuring the “informed consent” of indigenous peoples[5]/.”
12. In
2001, the UN Committee on Economic, Social and Cultural Rights on report of
Columbia in relation to traditional lands (E/C.12/I/Add. 74, para. 12) in its
concluding observation, 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.” It subsequently urged “to consult and seek the consent of
Indigenous peoples concerned prior to the implementation of timber, soil or
subsoil mining projects and on any public policy affecting them (ibid.,
para.33).
13.
UN Workshop on Indigenous Peoples, Private
Sector Natural Resource, Energy
and Mining Companies and Human Rights, held
in Geneva from 5-7 Dec. 2001 discussed the prin ciple of FPIC and recognized
the need to have a universally agreed upon definition of the principle. The
participants reached a basic common understanding of the meaning of the
principle, as the right of indigenous peoples, as land and resource owners, to say
“no” to proposed development projects at any point during negotiations with governments and/or
extractive industries (E/CN.4/Sub.2/AC.4/ 2002/3, para. 52).
14.
The Convention on Biological Diversity
1992 in its article 8(J) calls on
contracting States,
“to respect,
preserve and maintain knowledge, innovations and practices of indigenous and
local communities………..and promote their wider application with the approval
and involvement of the holders of such knowledge, innovation and
practices”.
The Cartagena Protocol on Bio-Safety (2000)
to the Convention on Biological Diversity also recognizes FPIC applies in
the transboundary movement, transit, handling and use of all living
organisms.
The Fifth Conference of Parties (COP) to
the CBD Decision V/16 expresses a firm commitment to the implementation of PIC
in its general principles:
“access
to traditional knowledge, innovation and practices of indigenous and local communities should be subject to
prior informed consent or prior informed approval
from the holders of such knowledge, innovations and practices[6]/.”
Decision V/16 further calls upon:
“Parties
to take measures to enhance and strengthen the capacity of indigenous and local communities to be effectively
involved in decision-making related to the use
of their traditional knowledge, innovations and practices relevant to the conservation and sustainable use of biological
diversity subject to their prior informed
approval and effective involvement[7]/”
15.
UN Sub-Commission on the
Promotion and Protection of Human Rights’ on the Norms on the Responsibility of
Transnational Corporations and other Business Enterprises with Regard to Human
Rights (E/CN.4/Sub.2/ 2003/38/Rev.2, para. 10.C ) states that the transnational
corporations and other business enterprises shall respect the rights of local
communities affected by their activities and the rights of indigenous peoples
and communities consistent with international human rights standards such as
the Indigenous and Tribal Peoples Convention 169 including FPIC of indigenous
peoples to be affected by their development projects
(E/CN.4/SUB.2/2003/38/Rev.2, para. 10 ©).
16. Intergovernmental
Panel on Forest (IPF)
(Now United Nations Forum on Forests -
UNFF) reaffirmed the principles of respect for Ips’ rights to their lands and
territories and FPIC expressed through their own representative institutions,
including the ‘right to say no’ (Leticia Declaration).
17. UNCED 1992 accepted IPs as Major Group in
implementation of Agenda 21. Rio Declaration in Article 22 explicitly noted
that:
“Indigenous peoples and their
communities and other local communities have a vital role in environmental
management and development because of their knowledge and traditional
practices. States should recognise and duly support their identity, culture and
interests and enable their effective participation in the achievement of
sustainable development.”
“Agenda 21 and Forest Principles
recognize: indigenous rights to land, intellectual and cultural property and to
maintain their customary and administrative practices; the need for greater
participation; the value of their involvement in forest management and
conservation.”
18. UNDP in preparation of the third session
of the PFII surveyed a questionnaire among UN bodies, funds, programmes and
specialized agencies in order to gather information about “how the principle of
FPIC is understood and applied by the United Nations Programmes, Funds and
agencies” ((E/C.19/2004/11). The report states that 10
out of 19 UN agencies implemented FPIC in their policies and practices and FPIC
is embedded in the human rights framework. UNDP applies the principle in three areas: in
the context of developmental planning and programming; on issues of
resettlement; and on issues of indigenous knowledge.
B. Regional
Level:
19. Draft
American Declaration on the Rights of IPs of the Organization of American
States (OAS) in its articles XVII AND XXIII states that the States obtain FPIC
prior to the approval of any project affecting IPs lands, territories and
resources, particularly in connection with the development, utilization or
exploration of mineral, water or other resources.
20. The
Inter-American Commission on Human Rights (IACHR) has developed considerable
jurisprudence on FPIC. The Commission has stated that the Inter-American human
rights law requires “special measures to ensure recognition of the particular and
collective interest that indigenous people have in the occupation and use of
their traditional lands and resources and their right not to be deprived of
this interest except with fully informed consent.” In 2003, the IACHR stated
that FPIC is generally applicable “to decisions by the State that will have an
impact upon indigenous lands and their communities, such as the granting of
concessions to exploit the natural resources of indigenous territories.” IACHR
has precedence on FPIC as in the case of the Mayagna (Sumo) in Nicaragua in
2000, “State of Nicaragua is actively responsible for violations of the
right to property, embodied in Article 21 of the Convention, by granting a
concession to the company SOLCARSA to
carry out road construction work and logging exploitation on the Awas Tingni
lands, without the consent of the Awas Tingni community[8]/.”
21. The Inter-American Development Bank’s
(IADB) 1990 Strategies and Procedures on Socio-Cultural Issues as Related to
the Environment provides that
“In general the IDB will not
support projects affecting tribal lands and territories,
unless the tribal society is in agreement.”
FPIC is
already included in the IADB’s policy on Involuntary Resettlement.
22. In 1998, the Council of Ministers of
European Union adopted a Resolution entitled, Indigenous Peoples within the
Framework of the Development Cooperation of the Community and Member States. It
provides that
“indigenous have the right to choose
their own development paths, which includes
the right to objects, in particular in their traditional areas[9].”
This was
reaffirmed in 2002 by the European Commission, which stated that the EU
interprets this language to be the equivalent of FPIC.
23. The ASEAN Draft Agreement on Access to
Biological and Genetic Resources (2000) in its preamble acknowledges:
“The fundamental principle that the
prior informed consent of the Member State and
its indigenous peoples and local communities embodying traditional lifestyles would have to be secured before access
can take place[10]”.
C. National Level:
The Philippines, Malaysia, Australia,
Venezuela, Peru, etc. have national legislation
on the free, prior and informed consent of indigenous peoples for all activities
affecting their lands and territories, for example.
24. Philippines:
The Indigenous Peoples Rights Act (1997)[11]
recognizes the right of FPIC of IPs for all activities affecting their lands
and territories including:
(a). Exploration,
development and use of natural resources;
(b). Research-bioprospecting;
©. Displacement
and relocation;
(d). Archaeological
explorations;
(f). Policies
affecting Ips such Executive order 263 (Community Based
Forest Management);
(g).
Entry of Military
25. Nino,
Bernal and Contreras write that Venezuela adopted a law on Biodiversity in May
2000. Article 39 provides the
conservation of cultural diversity through the recognition and promotion of
traditional knowledge (TK) and Article 44 has provision that TK holders can
oppose the granting of access to genetic resources or materials or TK projects
in their territories or ask halt to the activities that they feared might
affect their cultural heritage and biological diversity (Gupta 2000: 60) .
26. Malaysia,
Sarawak State passed the Sarawak Biodiversity Centre Ordinance 1977, and then
the 1998 Sarawak Biodiversity (Access, Collection and Research) Regulations.
The Sarawak Council is responsible for regulating access, collection, research,
protection, utilization, and export of the State’s biological resources. In
2004, the Sabah State of Malaysia in its “Framework for incorporating
indigenous communities within the rules accompanying the Sabah Biodiversity
Enactment 2000” created a system rule that ensures indigenous peoples
“shall
all times and in perpetuity, be legitimate creators, users and custodians of
traditional knowledge, and shall collectively benefit from the use of such
knowledge.”
27. A Revised Peruvian proposal in August 2000 recognizes the FPIC for
scientific research and cultural heritage
as well as for the commercial exploitation of the resources (Gupta 2004: 60)
and right of FPIC recognised according to traditional systems of representation
and customary law (Law 27811).
28. In
five states of Australia, consent has been obtained through statutory
indigenous controlled Land Councils in the mining area for more than 30
years. These consent procedures were
reviewed by the National Institute of Economic and Industry Research in 1999,
which found that they had been successful in safeguarding Aboriginal control
over Aboriginal land and has also provided a process of negotiation by which an
increasing proportion of Aboriginal land in the Territory has been made
available for mineral exploration[12]/.
III. Towards a Common Understanding of the
Principle of Free, Prior and
Informed Consent in Activities Relating to
Indigenous Peoples
3.1 Mechanism and procedural considerations, for example:
A. ILO convention (Human Rights Law):
29. ILO
169/1989 refers to the principles of FPIC: Article 6, 7, 16, 16 and 22 provides that the government shall:
(a) consult
the peoples concerned, through appropriate procedures
(b). in
particular through their representative institutions; establish means by which these
peoples can freely participate to
at least the same extent as other sectors of
population;
(C)
assist these peoples’ own institutions and initiatives and in
appropriate cases provide the
resources for these purposes.
30. In general the Convention specifies that
consultation should take place specifically
in the following circumstances:
(a) When considering legislative or
administrative measures that are likely to affect indigenous and tribal peoples {article 6.1 (a)};
(b) Prior to exploration or exploitation of
sub-surface resources (article 15.2);
(
c). When any consideration is being
given to indigenous and tribal peoples’ capacity to alienate their lands or to transmit them outside their
own communities (article 17);
(d). Prior
to relocation, which should take place only with the FPIC of IPs (article 16);
(e). On
the organisation and operation of special vocational training programmes (article 22).
B. Environmental
Law: On the
basis of Article 8(j) and its related provisions, the COP to CBD has formulated:
31.
Article 8(e) of the Akwe; Kon
Voluntary Guidelines refers to the:
“Establishment of a process whereby local
and indigenous communities may have the
option to accept or oppose a proposed development that may impact on
their community.”
Particularly:
the Article 53 provides that:
“Prior
informed consent corresponding to various phases of the impact assessment process should consider the rights,
knowledge, innovations and practices of indigenous
and local communities; the use of appropriate language and process; the allocation of sufficient time and
the provision of accurate, factual and legally correct
information. Modifications to the initial development proposal will require the additional prior informed consent of
the affected indigenous and local communities”.
32.
Bonn Voluntary Guidelines on Access and Benefit Sharing, intending ‘to
assist Parties in the establishment of a system of prior informed consent, in
accordance with Article 15 of the CBD provides:
“Respecting
established legal rights of indigenous and local communities associated with the genetic
resources being accessed or where traditional knowledge
associated with these genetic resources is being accessed, the prior informed consent of indigenous and local
communities and the approval and involvement
of the holders of traditional knowledge, innovations and practices should be obtained, in accordance with
their traditional practices, national access policies
and subject to domestic laws.”
Article 16 (a) (vii) of the Bonn Guidelines
provides that State should support measures as appropriate to enhance
indigenous and local communities’ capacity to represent their interests fully
at negotiations and Article 8(i) linked to the requirement of mutually agreed
terms.
Bonn Guidelines in its Articles 24 – 40
provides the procedural considerations on FPIC and in Articles 41 – 44 provides the basis for benefit sharing
on Mutually Agreed Terms.
33. Draft
International Guidelines for Activities Related Sustainable Tourism Development
in Vulnerable Terrestrial, Marine and Coastal Ecosystems and Habitats of Major
Importance for Biodiversity and Protected Areas, including Fragile Riparian and
Mountain Ecosystem states that “affected local and indigenous communities
and other stakeholders must be consulted and involved, and approached for prior
informed consent.”
34. Guidelines
for Incorporating Biodiversity-related Issues into Environmental in Assessment
Legislation and / or process and in Strategic Environmental Assessment
(Decision VI/7).
35.
Cartagena Bio-Safety Protocol
(2000) to CBD applies to the transboundary movement, transit, handling and use
of all living modified organism that may have adverse effects on the
conservation and sustainable use of biological diversity, taking also into
account risks to human health.
(D). Development Institutions’
Conventional Methods as Environmental Impacts
Assessment (EIA) by consultants.
36. World Bank (Operation Directive 4.20):
Borrower government commitment to adhere to the Bank’s Policy; establish
mechanism to ensure IPs participation in the full project cycle; and indigenous
peoples components which includes:
1. Assessment of national legal framework
regarding IPs,
2. Base line data,
3. Mechanism
for legal recognition of tenure rights
4. Capacity building of government dealing
with IPs
5. Health care, education, legal
assistance and institution building,
6. Fund disbursement on government
compliance with these measures
37. World
Bank’s OP 4.36 requires borrower governments and clients to ensure same kinds
of condition with respect to its funding for forestry sectors.
38. The
World Bank’s Extractive Industries Review (EIR), a three-year multi-stakeholder
external evaluation process into the effectiveness of Bank-funded extractive
projects in alleviating poverty and promoting sustainable development,
recommends that the World Bank Group “should ensure that indigenous peoples’
right to give their free, prior and informed consent is incorporated and
respected in its Safeguard Policies and project-related instruments.”
However, the WBG management response
rejects this, stating that the lack of global consensus on the meaning of FPIC,
implementation of FPIC has been interpreted as implying a limitation on
sovereign government constitutional processes, where this would represent a
veto on development[13]/.
“In
sum, the requirement of free, prior and informed consultation proposed by Bank Group Management will not require the
prior informed consent of any group.
However, such consultation would require the demonstration of ‘broad community support’ as a project pre-requisite.”
4.2 Key areas for application of free, prior
and informed consent
39.
The above analysis brings the
following areas of application, such as:
a. Cultural
heritage, cultural expression and diversity
b. Human
development and education
c. Indigenous
Knowledge
d. Intellectual
Property related Issues
e. Genetic
Resources and Sacred Sites
f. Health
h. Hazardous
Chemicals
i. Exploration,
development and use of natural resources
j. Research of Biodiversity and
Exploitation of Biological resources for commercial
purposes (Private corporate sector, company, research institutes, University)
k. Research-Bioprospecting,
Biotechnology
l. Displacement
and relocation from Protected Areas and Dams
m. Archaeological
explorations
n. Entry
of Military
o. New
settlements in indigenous lands and territories
p. Legislative and administrative
measures, and
q. Developmental planning
r. Research on indigenous peoples
s. Forests, Plantation, Afforestation,
reforestation
IV. Lessons, Challenges and Opportunities
41. FPIC is an established feature of international
human rights norms and development
policies pertaining to indigenous peoples.
42. There
is need to have internationally agreed definition or understanding of the principle or mechanism for implementation
43. Definition
of Terminologies such as Free, Prior, Informed and Consent is required formally.
44.
There is an argument that FPIC
contravenes state sovereignty in general, including
state sovereignty over natural resources.
45. FPIC
could complement/bridge gaps between IPR based on Individual rights and IPR based on the emerging potential
collective rights and between IPR and ABS.
46.
FPIC must be based on specific
activities and shared with the States.
47.
FPIC should be recognized
legally.
48. In
relation to development projects affecting indigenous peoples,
i. Indigenous
peoples are not coerced, pressured or intimidated in their choices of
development;
ii. Their
consent is sought and freely given prior to the start of development activities;
iii.
Indigenous Peoples have full
information about the scope and impacts of the proposed development activities
on their lands, resources and well being;
iv.
Their choices to give or withhold
consent over developments affecting them is respected and upheld.
V. Concluding Remarks and
Recommendations
49. Legislative and administrative measures,
development projects planning and all activities affecting indigenous peoples’
culture, history, traditional knowledge, lands, territories, natural resources,
genetic resources, climate, environment, arts and artifacts, historical and
sacred sites require FPIC.
50. A set of core principles and elements
could be as a practical tool for providing technical guidance to policy makers
and actors, whether in national or local government, the private sector,
multinationals, indigenous and local communities and other organizations; and
whether in regional or international level or UN agencies at interagency level
– country offices in CCA, UNDAF and MDGS.
51. The
following elements, but shall not be limited to, are a set of core principles
of FPIC in relation to indigenous peoples:
i. The principle
of FPIC recognizes IPs’ inherent and prior rights to their lands, territories and resources and respects
their legitimate authority and requires processes
that allow and support meaningful choices by indigenous peoples about
their development path (Tebtabba).
ii. The
principle of FPIC is central to IPs’ exercise of their right to self- determination with respect to developments
affecting them[14]/.
iii. Interpretation of the principle of FPIC
should be embedded in international human rights instruments, conventions and in UNDD on the
rights of IPs, which provides a comprehensive set of
indigenous peoples rights.
iv. The principle of FPIC should be implemented
based on human rights approach.
v. Participation of indigenous peoples is key
to the design, decision, implementation and evaluation of any
activity in providing FPIC.
vi. FPIC is an evolving tool and its further
development is on going; it could be adapted to different realities &
ecosystems.
52. Contesting claims between States and
other stakeholders including IPs should be resolved and have clear
institutional arrangements (mechanism) for monitoring compliance and redress of
grievances.
53. The principle of
FPIC is a right of indigenous peoples and obligatory methodology for the States
and project developers in activities relating to indigenous peoples.
54. FPIC
should be recognized legally in national legislation and FPIC should be legally enforceable
through the courts.
55. Interpretation
of the principle of FPIC should be embedded in international human rights
instruments, conventions and in draft declaration on the rights of IPs, which
provides a comprehensive set of indigenous peoples’ rights.
56. Indigenous
and local communities’ Protocol back up by the customary law and
practices can guide indigenous communities
in asserting their rights to FPIC (Malaysia).
57.
UNPFII to commission case studies to
explore the possibility of developing
international legal frameworks on the principles
of FPIC in order to elaborate and harmonize the implementaion of the UN
Agencies in relation to indigenous peoples and local communities.
References:
Forest Peoples
Programme and Tebtebba (2003), Extracting Promises: Indigenous Peoples,
Extractive Industries and the World Bank, the Philippines.
Gupta, Anil K.
(2004), WIPO-UNEP Study on the Role of Intellectual Property Rights in the
Sharing of Benefits Arising from the Use of Biological Resources and Associated
Traditional Knowledge, WIPO AND UNEP.Study No. 4. `
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Akwe: Kon
Voluntary Guidelines for the Conduct of Cultural, Environmental and Social
Assessments Regarding Developments Proposed to Take Place ojn, or which are
likely to Impact on, Sacred Sites and on Lands and Waters Traditionally
Occupied or used by Indigenous and Local Communities, adopted at COP 7, 2004,
Montreal, SCBD.
Bonn Guidelines on
Access to Genetic Resources and Fair and Equitable Sharing of the Benefits
Arising out of their Utilization, 2002, Montreal, Secretariat of CBD2002.
Cartagena Protocol
on Biosafety to the Convention on Biological Dirversity: Text and Annexes,
Montreal, Canada, SCBD, 2000.
Draft
International Guidelines for Activities Related to Sustainable Tourism
Development in Vulnerable Terrestrial, Mriane and Coastal Ecosystems and
Habitats of Major Importance for Biological Diversity and Protected Areas,
including Fragile Riparian and Mountain Ecosystems at http:// www.biodiv.org
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Legislation and / or process and in Strategic Environmental Assessment
(Decision VI/7).
International
Labour Organisation Indigenous and Tribal Peoples Convention 1989 (No. 169) 72
ILO Official Bull. 59, entered into force Sept. 5, 1991.
Rotterdam
Convention on the Prior Informed Consent procedure for certain hazardous
chemicals and pesticides in international trade, 1998 (Enforced in February
2004)
The Convention on
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Quebec, Canada, February 2002.
International
Official Records:
Commentary on the
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Concluding
Observations of the Committee on Economic, Social and Cultural Rights:
Columbia. 30/11/2001. E/C.12/Add. 1/74.
Decision V/16 above n 8, Annex:
Programme of Work, 1. General
Principles 5, at 139-42.
General Recommendation
XXIII (51) concerning Indigenous Peoples. Adopted at the Committee's 1235th
meeting, 18 August 1997. (UN Doc. CERD/C/51/Misc.13/Rev.4.
Inter-Agency
Support Group on Indigenous Issues; report on free, prior and informed consent
E/C.19/2004/11.
Inter-American
Development Bank, Involuntary Resettlement – Operational Policy and Background
Paper, October 1998.
Preliminary
working paper on the principle of free, prior and informed consent of
indigenous peoples in relation to development affecting their lands and natural
resources that would serve as a framework for the drafting of a legal
commentary by the Working Group on this concept submitted by Antoanella-Iulia
Motoc and the Tebtebba Foundation, E/CN.4/Sub.2/AC.4/2004/4.
Report of the
Commission on Transnational Corporations to the Working Group on Indigenous
Populations (UN Doc. E/CN.4/Sub.2/1994/40.
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Workshop on Indigenous Peoples, Private
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5-7 December 2001 (E/CN.4/Sub.2/AC.4/2002/3, 17 June 2002.
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Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Mr. Rodulfo Stavenhagen, submitted pursuant to Commission
resolution 2001/57. UN Doc. E/CN.4/2002/97, para. 56 (E/CN.4/2003/90).
Striking a Better Balance. The World Bank Group and
Extractive Industries. The Final Report of the Extractive Industries Review,
Vol. 1, December 2003, 41.
The World Bank
Group and Extractive Industries: The Final Report of the Extractive Review
Meeting of the Executive Directors, August 3, 2004.
The World Bank:
Legal Note on Free, Prior and Informed Consultation, Senior Vice President and
General Counsel, World Bank General Counsel, IFC and Vice President and General
Counsel, MUGA, August 2, 2004.
National Level:
Framework for
incorporating indigenous communities within the rules accompanying the Sabah
Biodiversity Enactment 2000, Policy paper, November 2004.
The Indigenous
Peoples’ Rights Act of 1997.
Briefing Papres:
Bridging the gap
between human rights and development: From Normative Principles to Operational
Relevance. Lecture by Mary Robinson, DC., 3 Dec. 2001.
FPP briefing
paper, “indigenous peoples’ right to free, prior and informed consent and the
World Bank’s Extractive Industries Review.”
Fergus Mackay at the ED briefing on
FPIC, World Bank, June 2004. Fergus Mackey, A Guide to Indigenous Peoples’
Rights in the Inter-American Human Rights System, Octobe 2001, FPP, UK.
Marcus Colchester, Forest Industries,
Indigenous Peoples and Human Rights, Dec. 2001, FPP, UK.
Tamang, Parshuram
(2004), Free, Prior and Informed Consent and Indigenous Peoples, presented at
International Workshop on FPIC, organised by IIFB, Bangkok, Thailand.
Valadez, Ana (2004), Maya - International Collaborative
Biodiversity Groups Consortium, presented
at International Workshop on FPIC, organised by IIFB, Bangkok, Thailand.
[1]. FPP briefing paper,
“indigenous peoples’ right to free, prior and informed consent and the World
Bank’s Extractive Industries Review.”
[2] . Bridging the gap between human rights and development: From
Normative Principles to Operational Relevance. Lecture by Mary Robinson, DC., 3
Dec. 2001. Report of Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Mr. Rodulfo Stavenhagen, submitted
pursuant to Commission resolution 2001/57. UN Doc. E/CN.4/2002/97, para. 56
(E/CN.4/2003/90). Striking a Better
Balance. The World Bank Group and Extractive Industries. The Final Report of
the Extractive Industries Review, Vol. 1, December 2003, 41.
[3] . Preliminary working
paper on the principle of free, prior and informd consent of indigenous peoples
in relation to development affecting their lands and natural resources that
would serve as a framework for the drafting of a legal commentary by the
Working Group on this concept submitted by Antoanella-Iulia Motoc and the
Tebtebba Foundation, E/CN.4/Sub.2/AC.4/2004/4.
[4]. Draft Decision of the
Third Session of UNPFII, ECOSC, Official Records 2004, Supplement No. 23.
[5] . Marcus
Colchester, Forest Industries, Indigenous Peoples and Human Rights, Dec. 2001,
FPP, UK. Fergus Mackey, A Guide to Indigenous Peoples’ Rights in the
Inter-American Human Rights System, Octobe 2001, FPP, UK.
[6] . Decision V/16
above n 8, Annex: Programme of Work, 1.
General Principles 5, at 139-42.
[7] . Striking a Better Balance. The World Bank Group and
Extractive Industries. The Final Report of the
Extractive Industries Review, Vol. 1, December 2003, 41.
[8] . Fergus Mackey, A
Guide to Indigenous Peoples’ Rights in the Inter-American Human Rights System,
October 2001, FPP, UK.
[9] . Speaking Out
International Conference (2002) on EU’s Indigenous Peoples Policy within the
Framework of the Development Cooperation of the Community and Member States,
organised jointly by International Alliance of Indigenous and Tribal Peoples of
the Tropical Forests, Rain Forest Movement UK and European Commission,
Brussels.
[10] . Framework for
incorporating indigenous communities within the rules accompanying the
Sabah Biodiversity Enactment 2000,
Policy Paper, November 2004.
[11] . Office of the
President, National Commission on Indigenous Peoples, Administrative Order No.
1, Rules and Regulations Implementing Republic Act No. 8371, othewise known as,
“The Indigenous Peoples’ Rights Act of 1997.”
[12] . Fergus Mackay at
the ED briefing on FPIC, World Bank, June 2004.
[13] . Legal Note on Free
Prior and Informed Consultation, Senior Vice President and General
Counsel, World Bank
General Counsel, IFC, MIGA, August 2, 2004.
[14] . Article 371 G reads thus:
“notwithstanding anything in this constitution – (a) no Act of Parliament
in respect of – (i) religious or social practices of the Mizos, (ii) Mizo
customary law and procedures,
(iii) administration of civil and criminal justice involving decisions
according to Mizo customary
law, (iv) ownership of land, shall apply to the state of Mizoram uless the Legislative
Assembly of the State of Mizoram by a resolution so decides………..”. The aforesaid provision was inserted through the Constitution (53rd
Amendment) Act, 1996 following an accord between
the Government of India and the Mizo National Front, that was signed on 30
June, 1986, ending two decades of
insurgency and militarization.
