Isn’t Free, Prior, Informed Consent Enough?

Indigenous people are supposed to have free, prior, and informed consent (FPIC) for any project that impacts our lands and people. FPIC is often called “the gold standard of Indigenous Rights.” As reported in a recent joint report by Grist and Indian Country Today, “FPIC is a right that is recognized by international standards like the UN Declaration on the Rights of Indigenous Peoples and the International Labor Organization Convention and applies to relocation, culture, legislation, land use, and the environment. Under international law, countries have an obligation to obtain the free, prior, and informed consent of impacted Indigenous communities in all of these areas.” The problem usually pointed to, with much hand-wringing, is that FPIC isn’t applied often enough, and the rulings in favor of Indigenous communities when FPIC is not provided tend to lack teeth.

But there’s actually a much bigger problem here that largely only Indigenous people see. It’s that FPIC is a stop-gap measure that shouldn’t be necessary at all. It is necessary, and it should be enforced. But FPIC is only required at all because Western culture is still so deeply engaged in colonialist mindset and behaviors.

The colonialist behaviors that made FPIC a necessary stop-gap measure — and this includes behaviors that supposedly implement “green” solutions to energy and other environmental problems — continue to manifest Western culture’s unhealthy relationship with and alienation from the natural world and from the Indigenous people who are still a part of that world. The distinction between getting Indigenous consent for projects and engaging Indigenous people as “collaborators” on the one hand, versus ceding control and autonomy to Indigenous people on the other hand, is absolutely essential to understand. But that difference, and its implications, are not pleasant things for anyone to look at. Indigenous people have had to live with this for hundreds of years, though. So please give me a few minutes of your time to look at it now, for the sake of all the World.

Putting the situation in a slightly different context might help you see why I’ve criticized FPIC as I have. If it applied to your neighborhood, FPIC says that your neighbors — in the place where you live right now — should not legally be able to simply come into your yard, cut down your trees, and put solar panels on your roof that provide energy for their house. Granted, this may sound ludicrous to you. If your neighbor actually did such a thing, it would be all over the news and you would have immediate legal recourse to stop it. But this is exactly, with no exaggeration at all, what happens to Indigenous communities all the time. In the report I cited at the top of this page, a situation is described in which one of Europe’s largest wind farms was built in such a way that it impinged on traditional Saami lands, harmed their reindeer herds, and degraded their quality of life. If FPIC principles agreed upon by the international community had been followed, the Saami would have said no to the wind farm being built on their traditional lands. But they weren’t given that choice.

So the first point about FPIC is it “gives” people rights they actually already have, inherently, as human beings — and at that, only maybe 50% or 60% of the rights  people of the dominant culture have. And the second thing about FPIC is that even then, it’s often ignored and/or unenforced.

People of the dominant culture are blissfully unaware of the frequency and degree to which extractive industries — including those that are seen as “green” — legally and literally invade Indigenous lands and destroy lives and livelihoods there. According to FPIC, the bare minimum that should happen, in terms of basic human rights, is that when a group plans to build structures or remove resources (ore, timber, water, or wind) that are part of Indigenous lands, they should ask first, meet the objections and address the concerns of the local people, and drop the project if the people don’t want it to move forward. As outlined in repeated Indigenous reports to the UN, this does not happen. But even if it did, FPIC is a bare-minimum statement of human rights. No person of the dominant culture would tolerate the idea that they were being “given” the “right” to have a neighbor ask before commandeering their home and yard to that neighbor’s own purposes, and the “right” to suggest changes to that neighbor’s plan and, possibly (but not always enforceably), reject it. So why do we find this an acceptable level of rights for Indigenous people, when no person in the dominant culture would tolerate it? And why, given its minimalist nature, is the rule so hard to enforce?

Yet FPIC is considered the “gold standard” for Indigenous rights! As such, it shapes the way that people in the dominant culture think about, approach, and relate with Indigenous communities.  As an example, the World Environmental Forum recently (Feb. 14, 2022) published a document entitled “5 Principles for Partnering with Communities on Forest Restoration.” The document opens with a statement we applaud: “The leadership of Indigenous peoples and local communities is central to the success of any forest conservation and restoration efforts. They have rich traditional ecological knowledge – stemming from generations of living alongside and stewarding forests – which offer unparalleled solutions and vision to projects seeking to restore and sustainably steward forest landscapes.” But things go downhill rather quickly from an Indigenous perspective after that, despite the fact that some of the statements made are genuine attempts to at least acknowledge the importance of Indigenous Land sovereignty.

Overall, however, the five points make it very clear that the initiative for the reforestation projects being carried out is that of people from the dominant culture, not the local Indigenous communities of those very same forests. Yet, because the projects will be carried out with “free, prior, and informed consent” there is an assumption that this makes invasive behavior that’s well-intentioned acceptable, as well as morally and ethically — not to mention ecologically — Right.

It’s even troubling that the short document directly addresses the impropriety of using “coercion, intimidation, or manipulation” in the “consultation process” with local people. That cautionary statement actually makes it even clearer that the control for the entire process rests in the hands of people of the dominant culture rather than the local forest inhabitants. If you don’t quite see that, consider this statement in the context of our previous example of your own home. If your neighbor told the courts that they had your permission to cut down your trees and put their solar panels on your roof, and as evidence pointed out that they had not coerced, intimidated, or manipulated you to get you to agree, would you not feel this was an admission of their having been in control of the situation all along? Wouldn’t you say, “Wait a minute. They are saying it’s ok because they didn’t intimidate me to get my permission? What the heck is going on here? We’re talking about my house, my yard, my trees, and — if anyone is going to get solar energy out of the roof area — my solar energy. So they didn’t intimidate me or my kids to do this stuff, but just tore down my fence and got busy with their chain saws . . . and they are saying I should pat them on the back for not intimidating us to get ‘permission’ they should never even have asked us for? Because: MY house, MY yard!” Because think about it: if it had been your idea to run solar power from your roof panels to your neighbor’s house, it would make no sense at all to imagine your neighbor would coerce or intimidate you. If that leverage exists as a possibility, it means it was their idea to begin with. It was what they wanted.

The terms of FPIC and the language used in documents like this one actually speak very eloquently of the dramatic imbalance of power that exists, to this day and even this hour, between Indigenous communities and people of the dominant culture — a dominant culture that is so perfectly aware of engaging in coercion, intimidation, and manipulation to get what it wants from the disempowered that it feels it necessary to specifically stipulate the impropriety of such behaviors when “getting free consent” from those whose community and family resources will, once again, be taken from them for use by the dominant culture that has done this repeatedly since first contact.

So what is the alternative? How might we re-imagine the sort of relationship this document describes? Let’s go back to the example of you, your home, your yard, and your neighborhood. Let us imagine a power imbalance that is rooted primarily in economics, and a difference of values that means your neighbors have invested in golf-course quality lawns but that your yard is bare dirt with a few weeds you try to pull as you can. And let us say that you’d really like to grow traditional foods on your property, to feed your family and improve their health by eating less of the processed foods sold in the grocery store. But because of the financial imbalance — perhaps you have a low-paying job because people look down on you (since, obviously, you are not one of the neighborhood elite, your yard being what it is). So you don’t have the resources to get a truckload of good topsoil or compost, to buy good seeds and bird netting and trellises, and to put in a garden.

At this point in our imagined story, the neighborhood sends you a delegation — perhaps the HOA committee. And they say, “We are prepared to invest $500 in improving your yard. We will put in sod and hire the Chemo-Lawn company to come spray it with pesticides and herbicides. We will contact them on your behalf tomorrow. There is no need to thank us. But we do want to give you the right of consent. What do you say?” They are very pleased with their own generosity, and also pleased that this will improve their own property values.

You say, “Well, what I would really like is to have the $500 to put in a garden. And I’d be glad to share what I grow with you. It’s good healthy food.”

So now negotiations begin. That’s what really, actually happens. The Western organizations that come to Indigenous communities with these offers of assistance negotiate with us about what we want to do on our lands — which tells you they have a stake in the situation and they consider the existence of that stake a non-negotiable. They say the equivalent of, “Well, a garden isn’t a very attractive thing. And it won’t really help local property values. [There’s the non-negotiable stake they have in this, revealed.] How about a rose garden instead?” And things start going back and forth, back and forth, back and forth . .

. . . until we Indigenous finally give up in frustration and plant whatever the heck it is the people of the dominant culture will agree to “let” us plant on our land with their money.

But Indigenous people know things about the natural world that people of the dominant culture do not know. This is not being paid heed. It should be. Yes, we lack the resources to do the things we know will restore and revitalize ecosystems. And yes, you have such resources. (And, really, you might ask yourself this: where did the resources you have, that we don’t have, come from to begin with?) So. What we need is for you to give us resources to carry out our own plans, our own ways, for our own purposes. Because Indigenous people understand and serve the Land, as well as everything that lives on and with it.

Until now, the options have been that we do what we do with our own resources, which are so limited that we do things on a shoestring, suffer for it, and can do only a tiny fraction of the good we could be doing for the world. Or the alternative is that we do things with resources you give us, in which case you get to call the shots with so much colonialist habit of goals, methods, and values that we wind up engaged in a power struggle that finally just wears us down to the point of giving up. Then the thing we could have done doesn’t happen, you don’t get the results we promised because you wouldn’t get out of the way and let us do it, and as a result you say you won’t make the mistake of funding our projects again. It’s an utterly insane system of self-destructive short-sightedness based in Western inability to see the magnitude of the power imbalance that exists every time our people interact. You don’t mean to do this, we know. But that doesn’t change the fact that it happens.

Look once again at the “5 Principles for Partnering with Communities on Forest Restoration.” And this time, read it as if you’re the one on the receiving end. Imagine it’s a big corporation coming into your community to cut down the forests in a “sustainable” way they are going to let you have some input in. Imagine they see your participation as one where this outside corporation is giving you a voice as a matter of “social justice and equity” that “will enable sustained results for the global forest restoration and stewardship movement.” Imagine their biggest concern is building your trust in them (which is what the document says), which they admit isn’t going to be easy (which the document also says, and perhaps now you’re starting to see why that’s so), to “create a mutually reinforcing virtuous cycle of prosperity, both for forests and their peoples.” How do you feel about this, if it was their idea to come in and do this to begin with? If they are the ones telling you what prosperity is for you, and how your forests will generate more prosperity? Wouldn’t you feel like pointing out to them, “I think you must be using my forest to build prosperity for you, because otherwise you would not be here. And if somehow you really are doing this out of the goodness of your hearts, just for us and our forest, then we have another plan we’d like to talk to you about funding, given that we have the ancient Indigenous forest Knowledge you so highly esteem . . . ”

That’s where we are at this point. If you really believe that “traditional ecological knowledge – stemming from generations of living alongside and stewarding forests . . . offer[s] unparalleled solutions and vision to projects seeking to restore and sustainably steward forest landscapes,” then let us lead. Stop trying to control it all. Because it’s that insistence on control — what resilience ecologists even call the “command and control” model of Western cultural relationship with nature — that has brought the world’s ecosystems to their knees.

The next page in this series starts to answer the question How Are Indigenous-Led Projects Really Any Different? It begins with a consideration of Western-Led Projects. Click here to go there.

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