Reclaiming Free Prior and Informed Consent

in the context of global land grabs
15 July 2014
Policy briefing

The jury is still out on Free Pior and Informed Consent (FPIC). Will it ‘help’ or ‘hurt’ the cause of agrarian justice? The dilemmas and challenges of using FPIC are already surfacing and warrant closer attention – precisely because of what is at stake: what development, for whom and what purposes, how and where, and with what implications?

The principle of Free Prior Informed Consent (FPIC) is on the rise in land and natural resource governance initiatives across the globe. FPIC is appearing in initiatives “... ranging from the safeguard policies of the multilateral development banks and international financial institutions; practices of extractive industries; water and energy development; natural resources management; access to genetic resources and associated traditional knowledge and benefit-sharing arrangements; scientific and medical research; and indigenous cultural heritage”.

FPIC was enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a result of indigenous peoples’ struggles against intrusions by companies into their territories. It is also being used in situations beyond these specific settings. The new prominence of FPIC is remarkable. But in the era of global land grabbing, will it ‘help’ or ‘hurt’ the cause of agrarian justice? The jury is still out, but the dilemmas and challenges of using FPIC are already surfacing, and in addition to the idea itself, warrant closer attention – precisely because of what is at stake: what development, for whom and what purposes, how and where, and with what implications.

The FPIC phenomenon is unfolding within the broader context of a global rush for land and related natural resources amidst persistent widespread hunger and rural poverty across the globe. Widespread hunger and rural poverty itself did not simply materialise out of thin air; but arose since the 1960s from the cumulative effects of unequal distribution of land and resource control, extractive types of investments, ‘green revolution’ programs, structural adjustment policies (liberalisation, privatisation, and withdrawal of state support for small scale food producers and local markets), flawed agrarian reform policies, discriminatory land policies, and exclusionary clientelist political systems, among others. FPIC is thus being introduced today in contexts where many once relatively resilient rural working peoples’ households, now occupy deeply marginalised and vulnerable positions.

‘Consent’ to a proposed big land deal or development project under these circumstances should not be confused with marginalized and vulnerable working peoples having had a real choice to begin with – that is, where at least one of the options on the table is truly social justice-driven in the sense of explicitly prioritising and privileging their concerns, interests and aspirations. At the same time, consent to a land deal or project is not necessarily static or permanent. In some cases communities may resist at the start and later switch to acceptance, and in other instances initial acceptance can turn to opposition. This is partly because ‘local communities’ are socially differentiated and how different people experience a land deal is diverse and can vary over time. Amidst such complexity, conservative attempts to control the application and outcomes of FPIC processes may not always succeed, but at times under certain conditions, may end up generating unexpected political dynamics and leading in unintended and unantici- pated directions. How such moments arise and whether they could be exploited to promote a greater degree of agrarian justice is an interesting question that ultimately invites deeper inquiry.

In this political brief it is argued that FPIC is neither inherently ‘good’ nor inherently ‘bad’ from an agrarian justice point of view. Whether, how and to what extent FPIC processes can lead to outcomes that enhance agrarian justice will depend in part on the specific context in which they occur, and in part on whether and how pro-agrarian justice activists engage with them.