Limitations of the Current International Framework for Indigenous People

By George Stetson, PhD Amazon Watch, an environmental advocacy organization, recently released a report on the importance for companies to respect Free, Prior and Informed Consent (FPIC). Basically, FPIC encompasses a set of principles supported in international law that protects indigenous peoples’ right to shape and determine their own development path. Without going into too many details, FPIC requires that companies and governments obtain the “consent” of local indigenous communities before engaging in any development that might adversely affect their interests. As Amazon Watch puts it, consent must be “given freely, by people fully informed of the consequences, prior to any decision being made, and according to their own decision-making processes.” The Amazon Report is important for a couple of reasons. First, it brings up one of the most critical issues in sustainable community based development: the rights of a people to decide for themselves what type of development they want on their land. Second, it underscores the reality that community-based development does not occur in a political and economic vacuum. In other words, national, political, and economic interests often collide with local interests and; consequently, if political safeguards are not in place, then communities will inevitably suffer. The concept of FPIC is inscribed the latest UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and ILO Convention 169 concerning Indigenous and Tribal Peoples. In many respects, these international rights accords are critically important tools for indigenous peoples. Large scale project development (mining, logging, large dams, highways, etc.) can have devastating consequences for indigenous peoples: forced displacement, environmental contamination, cultural impact. In one particular case, large scale development was equated with cultural genocide. As a result, advocates often make strong arguments against large extractive corporations, greedy national governments, and other private entities that violate indigenous rights to FPIC. In this context, FPIC is a critically important tool. However, while the principle of FPIC is important for indigenous peoples, here I want to explain why I think that the current international framework that supports indigenous rights also carries some risks (and a downside). The reality is that the current international framework, based on UNDRIP and ILO 169, does not necessary prevent unwanted development on indigenous land. I just recently finished a PhD dissertation on hydrocarbon development on indigenous territories in the Peruvian Amazon. In my research, I find that the Peruvian government is able to use the international accords (especially ILO 169) to give the impression that they support indigenous rights to FPIC, when in reality, they carry on with development projects without indigenous consent. The interesting part is that ILO 169 is inscribed in Peruvian Law and norms surrounding development. If you ask a government official that works in natural resource development about indigenous rights surrounding development, most will tell you that the Peruvian government fully supports indigenous rights. On the other hand, if you ask indigenous leaders about these very same rights, most will tell you that that the Peruvian government constantly violates ILO 169. In my dissertation, I argue that the basic problem is that indigenous peoples are denied the right to veto development projects on their lands. In other words, if indigenous people disagree with any given development project, according to Peruvian Law, as long as the government meets a few basic requirements that look like consent (informative meetings and assemblies to discuss environmental impact statements), the project can go ahead as planned. As mentioned, indigenous peoples claim that the government, in spite of its rhetoric, does not respect ILO 169 or the UNDRIP (I agree!). In fact, just this year, after massive indigenous protest throughout the Amazon region, the Peruvian Congress passed a new consultation law designed to implement in good faith ILO 169. To some this was seen as a monumental victory for indigenous groups. However, in spite of some relatively progressive elements, the law does not give indigenous peoples veto power over development projects. And Peruvian President Alan Garcia, so obsessed with the idea that indigenous peoples might think they have veto power, wrote a scathing observation to the new consultation law, articulating why he refused to sign it. The law is still pending. The point is that even if ILO 169 is implemented in good faith indigenous peoples will still lack the political power they need to carry out development according to their own interests, values and cultures. In my opinion, unless ILO 169, which is a treaty and thus legally binding on the state, is revised to clearly state that indigenous peoples should retain the political power (via their own institutions) to prevent unwanted development on indigenous territorial spaces. This means, yes, indigenous peoples need veto power over projects. The spirit behind FPIC is still critically important, but if companies are ever going to genuinely respect indigenous cultural, political, and economic rights, then strong political mechanisms must be created so that companies and governments are legally obliged to negotiate with indigenous peoples. As it currently stands, we must rely on the “moral fortitude” of large companies to respect indigenous rights. In my dissertation, I suggest that something akin to an “environmental trusteeship” (a Gandhian concept) might work to provide indigenous peoples with the administrative and political control of all resources within indigenous territorial spaces without evoking fears that they seek political separation from the “nation-state.” The concept of an environmental trusteeship is complex and, of course, requires deeper discussion. However, if we remember that the US government used the notion of “trusteeship” to take land away from Native Americans, it is not inconceivable that, instead of national governments, indigenous peoples might assume the role of environmental managers of the nation’s resources. While this might seem like a far-fetched radical scheme to the government, in reality, it is nothing more that a move to a more genuine democracy, where all peoples should have the power to decide their own development path.