Deciding on Land and Resources: How Can the Influence of the Most Affected Within
Communities Be Increased?
Abstract
The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and
Forests in the Context of National Food Security (Voluntary Guidelines) have a strong
recognition of customary tenure systems. On customary decision-making procedures,
however, the Voluntary Guidelines express considerable caution. This article considers
whether there is a human rights basis for requiring the free, prior and informed consent
(FPIC) of affected communities. The article finds that a human rights-based approach to
decision-making should be promoted, as it enables the most vulnerable within an affected
community to be involved in the decision-making process. Within participatory rights, there
are two basic approaches to how a community is to express consent to an investment project
that will impact on its access to natural resources. The first is ‘effective’ participation, which
is specified as a process in conformity with the custom and traditions of affected peoples. This
allows for one or more community leader(s) to speak on behalf of the community. The second
is ‘meaningful’ participation, which implies the involvement of the whole community. The
article reveals that both treaties and case-law tend to favour the former approach, with the
result that the most marginalised and vulnerable in a community, who tend to be women, risk
not being adequately involved. Basing a decision-making process on human rights principles
is likely to lead to less conflict in the long term.
Key words
Collective property rights, community decision-making, UN Human Rights Committee, ILO
Convention 169, United Nations Declaration on the Rights of Indigenous Peoples
1
INTRODUCTION
International law emphasises collective decision-making when indigenous peoples or local
communities are consulted in relation to any proposed activity that will affect their rights over
and access to land and resources. A particularly difficult situation emerges when a certain
number of persons within a community strongly oppose a planned activity or project, while
community leaders or other more numerous or dominant groups are positive. As the consent is
given by the community as a whole, there is a presumption that the whole community stands
united. This must be considered to be a naïve understanding of the potential for internal
disagreements within a community.
There is no doubt that weak compliance with collective rights is a problem, as noted in
this observation from a World Bank evaluation:
Of most concern is the weak compliance regarding the protection or promotion of
rights to lands and resources and the establishment of a grievance mechanism. …
[P]rojects that affect land and water rights and could have had a positive impact on
protecting or promoting the application of these rights, did not consider measures to
address the land and resource rights which are often the condition sine qua non for the
long-term wellbeing and sustainability of Indigenous Peoples’ societies and cultures.1
While land rights in an indigenous peoples’ context are primarily collective rights, this article
will seek to identify whether individual human rights, such as the right of every citizen to take
part in the conduct of public affairs, recognised in Article 25(a) International Covenant on
Civil and Political Rights (ICCPR), are at all relevant when the context is collective decisionmaking within communities. The chair of the UN Expert Mechanism on the Rights of
Indigenous Peoples has stated: ‘Indigenous peoples see decision-making as a collective
process, as opposed to the modern style of parliamentary democracy which is
individualistic…’.2 While this statement can be criticised for not acknowledging indigenous
peoples’ adherence to modern democratic principles, the collective approach might be the
more appropriate in nine cases out ten. This approach, however, does not guarantee that
decision-making processes are appropriate in those cases either where there is misconduct in
the process, including bribing of community leaders, or where the opposition to a project is
particularly strong among the most affected. The focus of this article is on the latter situations,
but it also seeks to clarify the content and standing of the requirement for free, prior and
informed consent (FPIC).3
There are three presumptions behind the analysis, focusing on projects that might
affect rights to land and resources. First, the individuals within a community that will be most
against a particular project are those who will presumably be among the most affected, but
opposition may also come from those who are not among the most affected. Second, the most
World Bank, Implementation of the World Bank’s Indigenous Peoples Policy: A Learning Review (FY 20062008), OPCS Working Paper, (2011), para. 81.
2
C. Morales Morales, Indigenous Peoples: Perspectives on Effective Participation, Conference blog by the InterParliamentary Union (2010), http://ipuchiapas.wordpress.com/2010/11/02/indigenous-peoples-perspectives-oneffective-participation (accessed 20 April 2013).
3
For details on the FPIC requirement, see T. Ward, The Right to Free, Prior, and Informed Consent:
Indigenous Peoples’ Participation Rights within International Law, 10 Northwestern Journal of International
Human Rights 54 (2011); see also UN-REDD, Legal Companion to the UN-REDD Programme Guidelines on
Free, Prior and Informed Consent (FPIC). International Law and Jurisprudence Affirming the Requirement of
FPIC (2013) (containing an overview of all references to FPIC in documents from the UN human rights bodies);
for an early study, see A.-I. Motoc and Tebtebba Foundation, Legal Commentary on the Concept of Free, Prior
and Informed Consent, E/CN.4/Sub.2/AC.4/2005/WP.1 (2005).
1
2
affected are those who are most dependent upon continued use of resources for their survival.
Third, those who depend mostly on the use of resources for their own consumption are often
also the less influential within the community, and are the least well-off in monetary terms.
Little attention has been devoted to understanding whether and how those who are
opposing the elite or majority view within a community are able to make their voice heard
and influence the community’s decisions and subsequently the decisions throughout the
implementation of the project. The article will review international treaties and non-binding
instruments, and seeks to identify the origin, content, status, potential and risks of human
rights principles and the FPIC requirement, as both of them are increasingly applied as a basis
for establishing minimum requirements in any decision-making process.4 Hence, the article
seeks to answer the following question: Does international law, particularly the requirements
of free, prior and informed consent and human rights principles derived from international
law, help to solve conflicts and guide community decision-making processes relating to land
and resources, so as to ensure that the voices of non-dominant groups are sufficiently heard?
The article proceeds as follows. First, it will analyse how the interests of the most
vulnerable and affected are taken into account in international law and jurisprudence. Among
the most vulnerable we find women, but also youth and children, and persons with
disabilities. The main examples will be taken from indigenous peoples, as community
consultations with indigenous peoples emphasise traditional decision-making. Second, the
article will review the term ‘human rights principles’, including its standing in international
law, and ways in which human rights principles can be applied in decision-making processes
concerning land. Third, it will consider the concept of ‘free, prior and informed consent’ – but
with no ambition of clarifying all aspects of this concept. Fourth, it will analyse the two terms
applied to specify the requirement of participation – effective participation and meaningful
participation – identifying whether different terminology also reflects different approaches.
Fifth, it undertakes a brief analysis of the risks involved for the cohesion of local communities
when faced with investment decisions. Sixth, it specifies arguments for the broadest possible
participation. Finally, the article concludes.
In this article, the terms ‘indigenous peoples’ and ‘local communities’ are both used,
acknowledging that indigenous peoples stand out from other minorities in international law.
Rather than engaging in domestic categorisations of who is and who is not indigenous, this
article is based on the premise that any community that depends on the continued use of and
control over its traditional land is to be involved in the decision-making with a view to being
able to give or withhold consent.5 While the analysis focuses on indigenous peoples, the
findings will therefore also be relevant for communities that are not considered to be
indigenous peoples. The rights of indigenous people under international law do, however,
have a broader scope as compared with other communities’ rights. Moreover, this article
strictly addresses conflicts within a community of indigenous peoples. An additional potential
source of conflict is dissatisfaction amongst a community of indigenous peoples with
decisions made by a higher body of indigenous peoples,6 but this kind of conflict will not be
analysed in this article.
4
FAO, Right to Food and Indigenous Peoples 2 (2007), www.fao.org/docrep/016/a1603e/a1603e.pdf (accessed
20 April 2013). These seven human rights principles were also identified as the core of the right to food-based
approach in background paper 3 for the International Conference on Forests for Food Security and Nutrition,
FAO, Rome, 13–15 May, 2013; FAO, The Right to Food Based Approach to Enhance the Contribution of NonWood Forest Products to Food Security and Nutrition 3-5 (2013).
5
On minorities’ land rights, see Human Rights Committee, infra note 36. The term ‘forest-depending
community’ is applied by UN-REDD, Guidelines for Free, Prior and Informed Consent 12 (2013), requiring
States to ‘secure FPIC from communities that share common characteristics with indigenous peoples…’.
6
UN Human Rights Committee, Apirana Mahuika et al. v. New Zealand, UN Doc. CCPR/C/70/D/547/1993
(2000).
3
COMMUNITY RIGHTS AND INDIVIDUAL RIGHTS
Three sources will be examined: ILO Convention No 169 Concerning Indigenous and Tribal
Peoples in Independent Countries (hereafter ILO 169); concluding observations to State
reports made by UN human rights treaty bodies; and the UN Declaration of the Rights of
Indigenous Peoples (UNDRIP). Only the first of these is a part of international law, but as a
declaration, UNDRIP has nevertheless gained strong standing.7
While UNDRIP has a comprehensive scope, it is a declaration, and ILO 169 represents
the most comprehensive binding recognition of indigenous peoples’ land rights, containing
strong guarantees on indigenous peoples’ participation. Some of its provisions on decisionmaking will be considered, rather than provisions regarding land (Articles 13-19 ILO 169).
Article 6.1(a) reads:
In applying the provisions of this Convention, governments shall … consult the
peoples concerned, through appropriate procedures and in particular through their
representative institutions, whenever consideration is being given to legislative or
administrative measures which may affect them directly.
Two terms are worth noting: the phrase ‘appropriate procedures’ and ‘particular’.
It is not specified what ‘appropriate procedures’ refers to, but according to the ILO’s
Committee of Experts on the Application of Conventions and Recommendation (CEACR),
the consultations must be held prior to the adoption of any measures and must allow ‘the full
expression of the viewpoints of the peoples concerned, in a timely manner and based on their
full understanding of the issues involved, so that they may be able to affect the outcome...’.8
There are UN Guidelines outlining in detail the process leading to the giving of adequate free,
prior and informed consent by the affected communities.9
Although the term ‘particular’ means that additional forms of consultation cannot be
excluded, the emphasis is on collective decision-making, implying that consultation must be
with the peoples and must take place through their representative institutions. Additional
consultations attended only by women – to ensure that their voices are also heard – could be
an example of a consultation procedure that cannot be said to be contrary to the overall
obligations under ILO 169.
Article 8.2 ILO 169 does, however, modify this overall emphasis on collective
decision-making, by saying that peoples’ own customs and institutions shall be retained
‘where these are not incompatible with fundamental rights defined by the national legal
system and with internationally recognized human rights’. Hence, both fundamental rights
defined by the national legal system and internationally recognised human rights can be found
to prevail over indigenous peoples’ customs and institutions.
This article does not aim to identify any distinctions between domestically defined
fundamental rights and internationally recognised human rights. Even if the term
7
UN, A/HRC/61/295 (2007). Note that UNDRIP has now been endorsed also by the four States that originally
voted against (USA, Canada, Australia and New Zealand).
8
CEACR, General Report and Observations Concerning Particular Countries, Report to the International Labour
Conference, 98th Session, 672 (2009), Report III (Part 1A). In cases of relocation, the requirements are stronger,
requiring procedures established by national legislation, in accordance with Article 16.2 ILO 169. Moreover,
IFC’s Performance Standard 1, Social and Environmental Assessment and Management System, paras 30-32
(2012) and IFC Performance Standard 7, Indigenous Peoples, paras 13-17 (2012) specify the following
requirements: due notice, communication in the indigenous peoples’ own language, adequate display of the
scope of the proposed intervention, and adequate time for community decision making.
9
UN-REDD, supra note 5, pp. 18-20.
4
‘fundamental rights’ is associated with certain civil human rights, such as freedom from
torture, the only provision in the ICCPR and the International Covenant on Economic, Social
and Cultural Rights (ICESCR) that is introduced by the term ‘fundamental’ is the right to be
free from hunger, recognised in Article 11.2 ICESCR. This article does not intend to specify
which – if any – of the human rights are not fundamental.
In order to clarify incompatibility, several questions emerge. First, who is in a position
to determine that an incompatibility actually exists, implying that fundamental rights and
internationally recognised human rights must take precedence over an indigenous custom?
Second, what is the threshold and, third, the consequence of determining such
incompatibility?
As to the first question, courts in States that have ratified ILO 169 have applied Article
8.2. The Colombian Constitutional Court ruled that a situation where more than half of the
members of a community were denied access to the opportunity to vote, and therefore the
right to participate in the community, implied that these fundamental rights were unjustifiably
limited.10 Other rulings from constitutional courts in Latin America also confirm that
indigenous jurisdiction can be subordinated in order to ensure respect for internationally
recognised human rights.11
Turning to the ILO supervisory bodies, there are no examples of the CEACR – which
is mandated to ‘consider the measures taken by Members to give effect to the provisions of
Conventions … [and] report to the [ILO] Conference’12 – finding that certain indigenous
customary norms are incompatible with human rights. In 2000, however, a CEACR Direct
Request to Costa Rica regarding the operations of a still not adopted law on the autonomous
development of indigenous peoples noted: ‘The Committee would be grateful for information
on cases where indigenous customary laws conflict with the national legal order, but not as far
as matters of fundamental rights are concerned.’13 This request is confusing. Based on the
understanding that indigenous customary laws may potentially be incompatible with human
rights, two interpretations are possible. On the one hand, it can be interpreted as implying that
10
Colombia Constitutional Court, Judgment T-603/05, Hilda Rocío Quistanchala Chacua et al. v. Wilson
Morales (9 June 2005); see also ILO, Application of Convention No. 169 by Domestic and International Courts
in Latin America 98-99 (2009).
11
Bolivian Constitutional Court, Judgment 0295/2003-R, File 2002-04940-10-RAC, Juan Ticona Mamani and
Filomena Cruz Ali De Ticona v. Gabriel Cruz et al. (11 March 2003); Colombian Constitutional Court,
Judgment T-254/94, Ananias Narvaez v. Comunidad Indígena De El Tambo (30 May 1994); both cases related
to the threat of exile from the community. See also ILO, supra note 10, pp. 55-56 and 64-66 (2009), and D.
Keillor, Ensuring International Individual Rights to Due Process and Groups Rights to Autonomous Indigenous
Institutions: Indigenous Community Justice under Bolivia’s Plurinational Constitution,
http://lexopus.yiil.org/lexopus/works/1170-1.pdf (accessed 20 April 2013). Note in this context also UNDRIP,
supra note 7, Article 35: ‘Indigenous peoples have the right to determine the responsibilities of individuals to
their communities.’ Concerning the application of customary law in the penal system, the UN Human Rights
Committee has clarified in General Comment No. 32 on Article 14 ICCPR (CCPR/C/GC/32) (2007) para. 22
that ‘where a State, in its legal order, recognizes courts based on customary law …[i]t must be ensured that such
courts … meet the basic requirements of fair trial … and their judgments are validated by State courts … and can
be challenged by the parties...’. Moreover, there is ‘a general obligation of the State to protect the rights under
the Covenant of any persons affected by the operation of customary … courts’.
12
ILO, General Standing Orders, Article 7.1(a) and 7.2.
13
CEACR Direct Request to Costa Rica, published in the report to the 89th ILC session (2001) para. 14
(extract); see also 2003 CEACR Direct Request, published in the report to 92nd ILC session,
http://www.ilo.org/dyn/normlex/en/f?p=1000:13101:0::NO:13101:P13101_COMMENT_ID:2306463 (accessed
20 April 2013), noting the ‘significant recognition … both in statutory law and in the judicial system, of the
customary laws of indigenous peoples’. Note that Bill No. 12032 for the autonomous development of indigenous
peoples has subsequently been replaced by Bill No. 14352, which is still not in force, a fact noted with concern
in the latest Concluding Observations by the UN Committee for the Elimination of all Forms of Racial
Discrimination, CERD/C/CRI/CO/18 (2007), para. 9; see also the Concluding Observations in CERD/C/60/CO/3
(2002), para.12.
5
the government of Costa Rica is to distinguish between those cases where fundamental rights
are affected and those where they are not, and only provide information on the latter cases. On
the other hand, it can be interpreted as implying that the government of Costa Rica is to make
available information on all cases, and then the CEACR is to determine which cases are not
compatible with fundamental rights. It is evident that CEACR has been far more concerned
with identifying inadequate participation of indigenous people relating to their lands, not
cases where customary law might conflict with international human rights, as specified by
Article 8.2 ILO 169.
In the UN human rights treaty bodies, the Committee on the Elimination of All Forms
of Discrimination Against Women (CEDAW) has expressed concerns about discrimination
against women under customary law, based on provisions of the CEDAW Convention, which
recognises that women have ‘legal capacity identical to that of men … to administer
property’.14 Most of the concerns about the laws and practices of States expressed in
CEDAW’s Concluding Observations do not address indigenous peoples’ customary law, but
as an example of a specific recommendation regarding indigenous discriminatory practices,
CEDAW has called upon Mexico to ‘adopt temporary special measures to address the
disparities that indigenous rural women face with regard to access to land and property … and
participation in decision-making processes’.15 Hence, in the case of Mexico CEDAW has
found that indigenous women enjoy inadequate participation in decision-making, including
over land.
In other treaty bodies, relatively little has been said on incompatibility between
indigenous customary law and human rights. The UN Committee for the Elimination of all
Forms of Racial Discrimination (CERD) has expressed concern about ‘aspects of customary
laws of certain ethnic groups on personal status that discriminate against women and girls,
including laws pertaining to … inheritance’.16 CERD has also emphasised that States are to
‘ensure that members of indigenous peoples have equal rights in respect of effective
participation…’17 and has expressed concerns regarding the way national constitutions and
legislation refer to customary laws that might operate in a discriminatory manner.18
The UN Human Rights Committee has criticised the Canadian Indian Act:
The Committee notes with concern that the Canadian Human Rights Act cannot affect
any provision of the Indian Act or any provision made under or pursuant to that Act,
14
Convention on the Elimination of All Forms of Discrimination against Women, Article 15.2; see also 16.1(h)
and 14.2(g). See also the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (Maputo Protocol, ratified by 28 States and signed by an additional 18 States), seeking to
eliminate discriminatory practices relating to the right to property through Article 6(j) (married women), Article
7(d) (divorce), Article 21.1 (widows), and Article 21.2 (equal right of inheritance from parents). Moreover,
Article 15(a) recognizes women’s right to access to land, as a means to ensure the right to food, and Article 19(c)
recognizes women’s right to property in the context of sustainable development. In general on the sidelining of
women in decisions relating to land, see J. Behrman, R. Meinzen-Dick and A. Quisumbing, The Gender
Implications of Large-scale Land Deals, 39(1) Journal of Peasant Studies 49-79 (2012). For an analysis of
communal tenure and gender implications, warning against individual titling, see Colchester et al., Indigenous
Land Tenure: Challenges and Possibilities (undated), http://www.fao.org/docrep/007/y5407t/y5407t04.htm
(accessed 20 August 2013).
15
CEDAW, Concluding Observations: Mexico, CEDAW/C/MEX/CO/7-8 (2012), para. 35(b).
16
CERD, Concluding Observation: Namibia, CERD/C/NAM/CO/12 (2008), para. 11.
17
CERD, General Recommendation XXIII, Indigenous Peoples (1997), para. 4(d) (emphasis added).
18
CERD, Concluding Observation: Zambia, CERD/C/ZMB/CO/16 (2007), para. 9, stating that ‘respect for
customary law and practices should not be ensured through a general exception to the principle of nondiscrimination…’.
6
thus allowing discrimination to be practised as long as it can be justified under the
Indian Act.19
UN treaty bodies have thus found that both customary laws per se and statutory law
seeking to uphold customary law can discriminate against women, which also implies that
women are discriminated against in decisions on how lands are to be used.
Therefore, while there are in principle several bodies under the UN – both the CEACR
and human rights treaty bodies, whose jurisdiction covers discrimination under indigenous
customary law – the main jurisprudence specifying under what circumstances customary
norms might conflict with human rights have come from domestic courts.
As to the threshold for determining incompatibility, outright discrimination is the most
common basis for identifying incompatibility between customary law and human rights law,
but the right to vote has also been found to have been violated.20 Article 1 of the UN
Declaration of the Rights of Indigenous Peoples (UNDRIP) reads: ‘Indigenous peoples have
the right to the full enjoyment, as a collective or as individuals, of all human rights and
fundamental freedoms.’ The ‘or’ implies that human rights are to be enjoyed collectively
where this is preferred or individually when this is preferred.
Moreover, Article 22.1 UNDRIP reads:
States shall take measures, in conjunction with indigenous peoples, to ensure that
indigenous women and children enjoy the full protection and guarantees against all
forms of violence and discrimination.
If women or other groups are not able to make their voice heard effectively by the
representative bodies that are mandated to make decisions within a community, be consulted
and express FPIC, this must be understood as discrimination.
Thus, while the customs and institutions of indigenous peoples are to be respected and
promoted,21 if they unjustifiably limit the exercise of human rights by individuals it is the
human rights of individuals that are to prevail.
Finally, what should be adequate action when incompatibility is found? We saw above
that the CEDAW Committee called upon Mexico to adopt ‘temporary special measures to
address the disparities that indigenous rural women face’.22 The mandate for this is Article 4
of the CEDAW Convention. Special measures are also recognised in Article 4.1 ILO 169,
inter alia, for safeguarding the persons of the peoples concerned.23 While little jurisprudence
exists to clarify the content of this provision, safeguarding persons is about ensuring that they
are not subject to unjustified harm or suffering.
19
UN Human Rights Committee, Concluding Observation: Canada, CCPR/C/CAN/CO/5 (2006), para. 22
(extract). The same paragraph noted that under the Indian Act, ‘the issue of matrimonial real property on reserve
lands has still not been properly addressed’. Note that in 2002, the Canadian government proposed the First
Nations Governance Act in an attempt to revise the Indian Act, inter alia by specifying that the bands were to be
regulated by the Human Rights Act, making the bands more democratic and accountable. The proposal was
withdrawn in 2004 because of harsh criticism from the indigenous peoples’ representatives, as they had not been
consulted in the drafting process.
20
See Colombia Constitutional Court, supra note 10.
21
For an example where both respect and promote obligations are listed, see FAO, Voluntary Guidelines on the
Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, guideline 9.11
(extract) (2012): ‘States should respect and promote customary approaches …to resolving tenure conflicts within
communities consistent with their existing obligations under national and international law.’
22
CEDAW, supra note 15.
23
The full text of Article 4.1 ILO 169 reads: ‘Special measures shall be adopted as appropriate for safeguarding
the persons, institutions, property, labour, cultures and environment of the peoples concerned.’
7
Article 4.2 ILO 169 reads: ‘Such special measures shall not be contrary to the freelyexpressed wishes of the peoples concerned.’ By the term ‘shall not be contrary to’ this latter
provision could be understood to imply that indigenous peoples are given some kind of veto
power over national legislation applying to indigenous peoples. This cannot be a correct
reading of Article 4.2. Rather, the provision must be read in light of the other provisions of
ILO 169, which specify consultation, implying that amendments of both customary law and
statutory law are to be worked out in close cooperation with the peoples concerned. This is in
line with Article 8.2 ILO 169, which specifies that indigenous peoples shall have the right to
retain their own customs and institutions, provided that these are compatible with human
rights. Hence, a State must comply with its overall human rights obligations when addressing
discriminatory customary practices, and should do this in a way that acknowledges customary
approaches to decision-making.24 Only by such involving processes can it be expected that
indigenous communities will voluntarily agree to those special measures that might affect
their customary practices.
HUMAN RIGHTS PRINCIPLES25
We see that consultation and non-discrimination are requirements in international law
provisions concerning indigenous peoples’ rights. While these are comprehensive
requirements, they do not necessarily give sufficient guidance in outlining a process for
decision-making which ensures that marginalised and vulnerable persons within indigenous
communities are able to participate adequately. As was made clear above, those persons
depending on the use of natural resources for their survival are likely to be the most affected
within indigenous communities. We will analyse two decision-making frameworks: human
rights principles and FPIC, the latter in the next section.
Human rights principles identify the minimum requirements for good public
conduct,26 and can also be referred to as principles of implementation.27 With one exception,28
there is no internationally binding instrument recognising human rights principles. Neither are
there any documents specifying requirements for having the status of being a human rights
principle. We will now consider the origin, content, status, potential and risks of human rights
principles.
While environmental law principles are seemingly rather well established – even if it
might be correct that the legal status of the precautionary principle remains unsettled29 – the
origins of human rights principles are recent. The content of human rights principles emerges
from various processes. General Comment 12 on the right to food refers to ‘the principles of
accountability, transparency, people’s participation, decentralisation, legislative capacity and
24
This is also specified in FAO, supra note 21, referring in guideline 21.3 to customary or other established
forms of dispute settlement.
25
This section is based on H.M. Haugen, What Role for Human Rights in Clean Development Mechanism,
REDD+ and Green Climate Fund Projects?, 5 Nordic Environmental Law Journal 51 (2013); see also Haugen,
infra note 26.
26
H.M. Haugen, Human Rights Principles: Can they be Applied to Improve the Realization of Social Human
Rights?, in: Max Planck Yearbook of United Nations Law, Vol. 15 (The Hague/Boston/London: Martinus
Nijhoff Publishers, 2011).
27
FAO, supra note 21, principle 3B.
28
The UN Convention on the Rights of Persons with Disabilities lists ‘principles of the present Convention’ in
Article 3.
29
World Trade Organization, EC – Biotech, WT/DS291-293/R (2006), para. 289; see also M.A. Recuerda,
Dangerous Interpretations of the Precautionary Principle and the Foundational Values of the European Union
Food Law: Risk versus Risk, 4(1) Journal of Food Law & Policy 39 (2008), finding that ‘the EU application of
the precautionary approach in its territory and its application in the international arena are completely different’.
8
the independence of the judiciary’.30 We see that only the term ‘principles’ is applied, but
another paragraph applies the term ‘human rights principles’, without further clarifying their
essence.31 In a UN-wide process on the human rights-based approach to development,
culminating in the so-called ‘Common Understanding’, human rights principles are specified
on a high level of generality, as illustrated by the terms universality and inalienability. 32 The
Common Understanding is nevertheless the most quoted source for determining what is meant
by human rights principles.33
There is no authoritative international list of human rights principles. In order to
identify the essence of human rights principles, their purpose, namely to provide minimum
requirements in any decision-making processes, is most relevant. It must be considered
essential that human rights principles enable individuals and communities to be more in
charge of all decision-making processes affecting their lives. In addition, human rights
principles must be in accordance with the core of human rights. Moreover, the requirements
placed on any external policy-maker and on communities must be seen in conjunction and as
mutually reinforcing. The catalogue made by FAO in the context of a study on indigenous
peoples is therefore found by this author to be relevant.34 This catalogue lists dignity
(inviolability), non-discrimination, the rule of law (decisions are in accordance with the law
and there is access to impartial courts), accountability (backed up by sanctions), transparency
(information is provided in accessible forms), participation and empowerment (implying
changing power relations).The principle ‘holistic and sustainable approach’35 is not included.
As a sustainable approach to all decision-making is most important, this author supports
including this among the human rights principles.
The importance of a holistic and sustainable approach can be seen in the fact that
peoples’ – including indigenous peoples’ – control over their natural resources is explicitly
recognised in common Article 1.2 of the ICESCR and ICCPR, and reiterated towards the end
of these two covenants, in Articles 25 and 47, respectively. For minorities that are not
recognised as indigenous peoples, the relationship between culture and land has been clarified
by the UN Human Rights Committee:
Culture manifests itself in many forms, including a particular way of life associated
with the use of land resources, especially in the case of indigenous peoples. … The
enjoyment of those rights may require positive legal measures of protection and
measures to ensure the effective participation of members of minority communities in
decisions which affect them.36
30
UN Committee on Economic, Social and Cultural Rights, General Comment No. 12, The Right to Adequate
Food (art. 11), E/2000/22, 102–110 (2000), para. 23 (extract).
31
Ibid., para. 21.
32
UN Development Group, The Human Rights Based Approach to Development Cooperation: Towards a
Common Understanding among UN Agencies 2 (2003), available at www.undg.org/archive_docs/6959The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_a
mong_UN.pdf (accessed 20 April 2013). Note that J. Kirkemann Hansen and H.-O. Sano, The Implications and
Value Added of a Human-Rights-Based Approach, in: B.A. Andreassen and S.P. Marks (eds), Development as a
Human Right. Legal Political and Economic Dimensions (2nd ed.) 45-47 (Cambridge, Mass.: Harvard School of
Public Health and Harvard University Press, 2010) find that universality and inalienability are applicable to
guiding policy decisions.
33
UN-REDD and Forest Carbon Partnership Facility, Guidelines on Stakeholder Engagement 21 (2012), listing
the Common Understanding under ‘Useful Resources’; see also OECD, DAC Action-Oriented Policy Paper on
Human Rights and Development 13n2 (Paris: OECD, 2007).
34
FAO 2007, supra note 4; see also FAO 2013, supra note 4.
35
FAO 2012, supra note 21, principle 3B, 5.
36
UN Human Rights Committee, General Comment No. 23, The Rights of Minorities (Art. 27),
CCPR/C/21/Rev.1/Add.5 (1994), para. 7 (extracts). For recognition of rights which specifically refer to
9
The paragraph emphasises effective participation, which is both a substantive right,
recognised in Article 25(a) ICCPR (‘take part in the conduct of public affairs, directly or
through freely chosen representatives’) and a human rights principle, included in all relevant
catalogues.37
On the status of human rights principles, the fact that the most recently adopted human
rights treaty, the Convention on the Rights of Persons with Disabilities (CRPD), lists
‘principles of the present Convention’ indicates the emerging status of human rights
principles. By this qualification, these principles cannot be said to be generally applicable
beyond the scope of the CPRD. The inclusion of human rights principles in the FAO’s
Voluntary Guidelines on land tenure, developed and adopted by States,38 is another other
indication that human rights principles are gaining increased status internationally. Additional
evidence of the increasing status of human rights principles is provided by the fact that all
relevant UN specialised agencies, funds and programmes have stressed that human rights
principles should guide all programming activities.39 Finally, the World Bank approves
human rights principles as an approach to a more proactive endorsement of human rights in
their operations, as stated by one of the Bank’s Senior Policy Officers: ‘The World Bank
evidences a growing convergence with human rights, particularly at the level of principles.’40
Neither of these are, however, evidence of a general approval of human rights principles as an
integral part of international law.
Concerning the potential of human rights principles, this can be summarised as more
inclusive and predictable decision-making processes, leading to better outcomes and fewer
conflicts. Complying with all human rights principles is demanding and might lead to longer
decision-making processes. As a guide to any intervention that will affect the rights and
resources of local communities, human rights principles have considerable potential. When
discussing the substantive and procedural human rights approaches in the context of
investment decisions, Olivier de Schutter, who is currently the UN Special Rapporteur on the
Right to Food, finds that only by ‘combining the two approaches can we arrive at satisfactory
results…’.41 The main problem with human rights principles is that they do not represent a
definite standard, unlike rules. The easiest way to explain this is by pointing to the distinction
between a principle and a rule, where rules ‘are norms that, given the satisfaction of specific
conditions, definitively command, forbid, permit, or empower’, while principles ‘are norms
commanding that something must be realised to the highest degree that is actually and legally
possible’.42 Hence, one can specify the boundaries of rules, outside which they do not apply,
while it is more difficult to specify the boundaries of principles. There are, however, human
rights principles which are rather specific, such as participation and non-discrimination, the
indigenous peoples, see CERD, supra note 17, para. 5 (‘recognize and protect the rights of indigenous peoples to
own, develop, control and use their communal lands, territories and resources…’) and Committee on Economic,
Social and Cultural Rights (CESCR), General Comment No. 21, Right of Everyone to Take Part in Cultural Life,
E/C.12/GC/21 (2009), para. 36 (‘recognize and protect the rights of indigenous peoples to own, develop, control
and use their communal lands, territories and resources…’).
37
FAO 2013, supra note 4; FAO 2012, supra note 21; FAO 2007, supra note 4; UN Development Group, supra
note 32.
38
FAO 2012, supra note 21.
39
UN Development Group, supra note 32, p. 1.
40
S. McInerney-Lankford, Presentation Held at Panel on Human Rights Mainstreaming at the 19th Session of
the Human Rights Council (2012), www.unmultimedia.org/tv/webcast/2012/02/world-bank-panel-on-humanrights-mainstreaming-19th-session-human-rights-council.html (accessed 20 April 2013).
41
O. de Schutter, The Host State. Improving the Monitoring of International Investment Agreements at the
National Level, in O. de Schutter, J. Swinnen and J. Wouters (eds), Foreign Direct Investment and Human
Development 162 (London: Routledge, 2013).
42
R. Alexy, Legal Reasoning and Rational Discourse 5(2) Ratio Juris 143, 145 (1992).
10
latter being applicable to any field of public policy.43 Moreover, as human rights can be
recognised on both the individual and collective levels, human rights principles can be applied
on the level of communities.
Finally, with regard to potential risks the main point is that human rights principles
can only be effective when linked to substantive human rights. Any document that merely
applies the term ‘principles’ and never refers to substantive human rights risks being too
vague and not adequately useful. As an illustration, the draft Principles for Responsible
Agricultural Investment that Respects Rights, Livelihoods and Resources (‘RAI Principles’)44
have no reference to substantive human rights or to any accountability mechanism. FAO is
now in the process of ‘developing’ the RAI Principles for possible adoption at the 2014
Session of the FAO Committee on World Food Security,45 which might result in
improvements to the current text.
There is a mutually reinforcing relationship between the various principles. Observing
the principles provides a framework of accountability. Effective participation depends on full
transparency; for instance, the full display of project plans and facilitation of participation will
result in empowerment, on both the individual and the collective levels.
In summary, human rights principles are gaining greater recognition. This article will
primarily analyse the content of the human rights principle of participation, as participation is
at the core of exercising individual rights within a community decision-making process.
Participation is central when elaborating on the content of the FPIC requirement and when
reviewing international jurisprudence on decision-making.
FREE, PRIOR AND INFORMED CONSENT
There is no international binding agreement on the scope of and content of the FPIC
requirement. While the FPIC requirement is not explicitly recognised in any of the core UN
human rights treaties, it is recognised in Article 16.2 ILO 169 in relation to relocation46 and in
six provisions of UNDRIP.47 Moreover, the author concurs with the position that FPIC is
embedded and an integral element in the right to self-determination of peoples – recognised in
common Article 1 of the ICCPR and the ICESCR – as control over natural resources is
essential to self-determination.48 The International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) recognises collective property in Article 5(d) (v),
and the General Recommendation on indigenous peoples says that ‘no decisions directly
relating to their rights and interests [should be] taken without their informed consent’.49
Hence, FPIC can be understood to be an operationalisation of the natural resource
dimension of the right to self-determination, based on communal management of collectively
owned land, specifying when collectively owned land can legitimately be transferred from a
community to the State or to an investor.
43
UN Human Rights Committee, General Comment No 18: Non-discrimination (1989), para. 12.
FAO, IFAD, UNCTAD and the World Bank, Principles for Responsible Agricultural Investment that Respects
Rights, Livelihoods and Resources (2010).
45
FAO, Committee on World Food Security, Thirty-ninth Session, Final Report, 9 and Annex D (2012).
46
Article 16.2 ILO 169 reads (extract): ‘Relocation shall take place only with their free and informed consent.’
47
UNDRIP, supra note 7. Two of the provision, Article 10 (relocation) and para. 29.2 (storage or disposal of
hazardous materials) represent an absolute right to FPIC (‘no… without…[FPIC]’); while para. 11.2 (taking of
property), Article 19 (measures that may affect indigenous peoples) and para. 32.2 (projects affecting land and
natural resources) apply the verb ‘shall’, which is stronger than the verb ‘should’ applied in most declarations.
Para. 28.1 is on the right to redress (restitution and compensation). Article 30 also has a wording that comes very
close to a FPIC requirement.
48
UN Expert Mechanism on the Rights of Indigenous Peoples, Final Report on the Study on Indigenous Peoples
and the Right to Participate in Decision-making, A/HRC/18/42 (2011), para. 20.
49
CERD, General Recommendation No. 23: Indigenous Peoples (1997), para. 4(d) (extract).
44
11
This article takes as a premise that FPIC is essentially about a community consenting
to restrict its rights over its traditional lands and resources. Hence, this author disagrees with
those who present the core of FPIC as a matter of the size of the benefits to be shared.50
While FPIC applies primarily to indigenous peoples, the right to effective participation
and consultation should not have a restricted coverage. First, governments’ recognition of a
given community as being indigenous or of communally owned land as indigenous peoples’
land is the most decisive factor in determining the legal status of peoples and their derived
rights, but a governmental declaration cannot be the only basis for determining the existence
of indigenous peoples.51 Second, minorities are entitled to participate in decisions relating to
the land they depend upon for maintaining their culture.52 Third, forest-dependent
communities that share common characteristics with indigenous peoples are also entitled to
effective participation when their substantive rights are affected.53
While other FPIC standards exist,54 the following discussion of the content of FPIC
will primarily analyse the UN-REDD Guidelines,55 with the aim of identifying how potential
tensions between individual members of the community and those making decisions on behalf
of the community are addressed.
The requirement of free consent is essentially about the absence of coercion and
manipulation, but the specification says both that ‘decisions take place … in … formats
determined by the stakeholders’ and that ‘[a]ll community members are free to participate’.56
There might be communities where the format for decision-making implies that a limited
group of community elders or even only the chief is entitled to make decisions on behalf of
the community, as is the case in Ghana. Traditional council members have been found to be
the most positive to any external actors intending to make use of their communities’ land and
50
A. Angelsen and D. McNeill, The Evolution of REDD+, in: M. Brockhaus, W.D. Sunderlin and L.V. Verchot
(eds), Analysing REDD+: Challenges and Choices 41 (Bogor: Center for International Forestry Research, 2012)
write: ‘Until national governments have established what, if any, payments or other benefits local people will
receive, FPIC seems to be an impossible precondition to satisfy.’ Note, however, that the Inter-American Court
of Human Rights, in Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs,
Judgment of November 28, 2007 (Series C No. 172), para. 129, lists benefit-sharing as one of three safeguards
the State ‘must abide by’, the two others being effective participation of the members of the Saramaka people,
and a prior environmental and social impact assessment. The Saramaka representatives asked the Inter-American
Court of Human Rights (IACHR) for a Human Rights Impact Assessment (HRIA) as part of the Environmental
and Social Impact Assessment (ESIA), see IACHR, Saramaka People v. Suriname, Judgment of 12 August 2008
(Interpretation of the judgment on preliminary objections, merits, reparations, and costs) (Series C No. 185),
para. 30, but the IACHR did not require this. On HRIA in general, see Special Representative of the SecretaryGeneral on the issue of human rights and transnational corporations and other business enterprises, Human rights
impact assessments - resolving key methodological questions, A/HRC/4/74 (2007), paras 12-16 and 23; Special
Rapporteur on the right to food, Guiding principles on human rights impact assessments of trade and investment
agreements, A/HRC/19/59/Add.5, Annex (2011); and International Finance Corporation, International Business
Leaders Forum and Global Compact, Guide to Human Rights Impact Assessment and Management (2010),
www.ifc.org/ifcext/sustainability.nsf/Content/Publications_Handbook_HRIA (accessed 20 April 2013)
51
UN-REDD, supra note 5, p. 26 (on communally owned land) and 38 (Annex 1) (on indigenous peoples).
52
Human Rights Committee, supra note 36.
53
Saramaka judgment, supra note 50, para. 129, listing effective participation of the members as one of three
safeguards the State ‘must abide by’; see also UN-REDD, supra note 5, p. 12.
54
Forest Stewardship Council, FSC Guidelines for the Implementation of the Right to Free, Prior and Informed
Consent (FPIC), Version 1 11 (Bonn: FSC, 2012). For a non-binding instrument specifying the ‘option of a noaction alternative’, see CBD COP, Akwé: Kon voluntary guidelines for the conduct of cultural, environmental
and social impact assessments regarding developments proposed to take place on, or which are likely to impact
on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities,
Decision VII/16 F, Annex (2004), para.21.
55
UN-REDD, supra note 5.
56
Ibid., p. 18.
12
ready to make direct payments to them.57 In such situations, many community members are
obviously not free to participate.
Requiring prior consent is about ensuring an adequate period between the full
presentation of the planned activity and the affected community’s giving or withholding of
consent.58 This requirement implies that the members of the community are given adequate
time to gain a full understanding of the scope of the proposed activity. How the project is
initially presented by the external actor and how the project is perceived by the municipal or
governmental representatives and by the community leaders will determine the time
requirement for the community. Community leaders themselves might feel that relatively few
meetings will suffice, while persons in a vulnerable situation, and who might be illiterate,
require much more detailed information. Such information could also include making the
physical boundaries of the proposed activities visible in the landscape, and not only on maps.
Informed consent refers not only to the forms of information available, but also to how
the engagement with the community actually takes place. The UN-REDD Guidelines specify
as one of the requirements: ‘Reach the most remote, rural communities, women and the
marginalized’,59 implying that ‘special measures have to be adopted to ensure the
participation of women and other vulnerable groups within the community.’60 Hence,
participation is to be ensured. This must imply that if women and other persons who are
particularly marginalised and vulnerable do not adequately participate, the FPIC process itself
is not adequate. In a situation where the community leaders say that the community is ready to
give its consent, the external actor planning any activity on their land must ensure that women
and other persons who are particularly marginalised and vulnerable have actually been
adequately involved in the process. This might include employing indigenous or local
trainers, as specified in the UN-REDD Guidelines.61
Finally, concerning the consent element of the FPIC requirement, this is specified as:
the collective decision made by the rights-holders and reached through the customary
decision-making processes of the affected peoples or communities. Consent must be
sought and granted or withheld according to the unique formal or informal politicaladministrative dynamic of each community.62
We see that there is to be a collective decision, which is to come in the form of either
consensus or majority. By merely requiring majority decisions, with no indication of how to
take account of the concerns of dissenting, non-dominant persons, but respecting, rather, each
community’s unique political-administrative dynamic, this specification might give rise to
tensions. On the other hand, this definition is a strengthening of UN-REDD’s consent
requirement , as its previous definition of FPIC did not explicitly include the option of
withholding consent. Moreover, the possibility of withdrawing consent is implicitly
57
L. German, G. Schoneveld and E. Mwangi, Contemporary Processes of Largescale Land Acquisition by
Investors. Case Studies from Sub-Saharan Africa, CIFOR Occasional Paper 68, 19-21 (Bogor: Center for
International Forestry Research, 2011). In order to explain the reason for why no formal objections to any
projects were identified, the reasons were found to be ‘limited capacity among affected households to claim their
legal rights; customary deference to chiefly authority; and unrealistic positive expectations of future
developmental benefits’ (ibid., p. 21)
58
UN-REDD, supra note 5, p. 19.
59
Ibid., p. 19. Note that a common definition of marginalisation is a process of social exclusion.
60
Ibid., p. 33. On p. 44 there is a further specification of such special measures, including women-only
interviews and gender-specific focus groups, as well as methods to support women’s engagement that are not
meeting-based.
61
Ibid., p. 19.
62
Ibid., p. 20.
13
acknowledged, but not ‘if the conditions upon which the original consent was based are being
met’.63
To sum up, FPIC can be understood as an operationalisation of the more generally
formulated substantive human rights. In the Guidelines on Stakeholder Engagement, human
rights and FPIC are specified in the same paragraph on requirements for stakeholder
engagement practices, which indicates the mutually reinforcing relationship between the
two.64 FPIC can also be understood as an operationalisation of human rights principles, as
FPIC specifies the content of the human rights principle of participation,65 addresses issues of
discrimination66 and cannot be exercised effectively without transparency. As has been shown
above, the FPIC requirements emphasise compliance with customary practices and allow for a
certain interference with these practices if they are not adequately inclusive. While the FPIC
requirements have positive aspects, they are not adequately specific for resolving possible
tensions between vulnerable and marginalised individuals and the elites in their communities.
We will therefore now consider whether human rights principles, primarily the principle of
participation, can give additional guidance for resolving tensions within communities.
EFFECTIVE PARTICIPATION V. MEANINGFUL PARTICIPATION
The FPIC requirements operate primarily with the community as a unitary actor, but also
specify sub-groups within the community, more specifically women and other vulnerable
groups. Hence, the term ‘participation’ in the context of FPIC is about collective participation,
either on a community level or on a group level. Within human rights, participation must also
be exercised on an individual level. We will assess whether there are any documents or legal
instruments that specify what is to be done when there is no consensus within a community,
and also whether other approaches can give any guidance.
FPIC provides for what is seemingly a unified stand by a community based on internal
negotiations, but as we saw above, FPIC can be given on the basis of inadequate involvement
of the most affected persons and can also be given against the wishes of large sections of the
community. Particularly if this large minority are those persons and households who are likely
to be most affected by a particular project, this is appropriate neither as an outcome nor as a
process. Is there guidance in any international instrument, binding or non-binding, for
addressing such difficult situations?
There is no UN document that has specified how decision-making is to be conducted
when a substantial minority is against the content of the decision. Some guidance is provided
by the Roundtable on Sustainable Biofuels (RSB), which states initially that consensus shall
be the decision-making tool.67 Consensus is understood to imply that a ‘significant majority of
directly affected stakeholders’ support the project.68 While the term ‘significant’ is open for
Ibid., 30, reading: ‘if the conditions upon which the original consent was based are being met, ongoing consent
is implied.’ The FSC, supra note 54, specifies the option of withdrawing consent without any requirements.
64
UN-REDD and the World Bank’s Forest Carbon Partnership Facility, supra note 28, para. 6.
65
Ibid., para. 6(b), reading (extract): ‘FPIC is essential to ensure the full and effective participation of indigenous
peoples in program activities and policy and decision-making processes.’
66
UN-REDD, supra note 5, p. 33 (‘whether special measures have to be adopted to ensure the participation of
women and other vulnerable groups within the community’); see also ibid., p. 44.
67
RSB, Principles & Criteria for Sustainable Biofuels Production, Version 2.0 9 (Lausanne: RSB, 2010),
elaborating on the content of RSB criterion 2.b; the same paragraph refers to the RSB Impact Assessment
Guidelines (RSB-GUI-01-002-01) (Lausanne: RSB, 2009). See also RSB, Rapid Environment and Social
Assessment (RESA) Guidelines (RSB-GUI-01-002-04) (Lausanne: RSB, 2009) and RSB, Environmental and
Social Impact Assessment (ESIA) Guidelines (RSB-GUI-01-002-03) (Lausanne: RSB, 2009).
68
RSB, Guidance on Principles & Criteria for Sustainable Biofuel Production (RSB-GUI-01-000 (Version 2.0))
(Lausanne: RSB, 2010), p. 6. The Guidance furthermore states (ibid.): ‘The auditor may decide, based on
documents submitted for certification, whether any dissension among stakeholders is significant.’ By contrast,
63
14
interpretation, the fact that these are directly affected stakeholders should imply that their
eventual opposition cannot be rejected outright by the external actors initiating any activity on
their lands. An earlier RSB document – which is not linked to the ‘Version 2.0’ standard –
says:
Internationally-recognized methodologies for consensus-seeking outlined in the RSB
ESIA [Environment and Social Impact Assessment] guidelines shall be used, such that
individuals or single-issue groups cannot block consensus.69
This statement is intriguing in three aspects. First, it is not clear what is meant by
‘international-recognized methodologies for consensus-seeking’. The author is not aware of
any such methodologies which have been approved by States at either a regional or a global
level. Second, these methodologies are understood to imply that ‘individuals’ cannot block
consensus. The number of individuals and their degree of affectedness are not indicated, so it
is not clear when the threshold for not proceeding with the planned activity would be reached.
Third, ‘single-issue groups’ is added to those that cannot block consensus, without defining
whether this refers to groups within affected communities or also to external actors which are
participating with the consent of and behalf of the community. Hence, the RSB guidance
documents actually raise more questions than they answer on how to address a situation
where there is resistance with a community to a proposed activity.
Moreover, it is relevant to note that the RSB requirement on participation is that it
shall be meaningful.70 Other guiding documents also require meaningful participation.71 What
does meaningful participation imply? According to the Oxford English Dictionary,
‘meaningful’ means ‘serious, important, or worthwhile’. A handbook on community
participation titled ‘Making community participation meaningful’ gives a non-exhaustive list
of reasons why community participation is essential, namely improved accountability,
enhanced social cohesion, better knowledge and experience, more relevant policies,
mobilisation of voluntary contributions, less social exclusion, and better local ownership,
which promotes sustainability.72 Hence, meaningful participation is essentially about an
inclusive process which makes active use of local knowledge to improve the outcome of any
project activity or development intervention.
In the context of local knowledge and experience, the phrase ‘enhances effectiveness’
is applied.73 ‘Effective’, according to the Oxford English Dictionary, means ‘successful in
producing a desired or intended result’. Even if the definition only focuses on the decisionmaking outcome (‘result’), it must be asked whether the definition also includes elements
the Philippines Indigenous Peoples Rights Act of 1997 (Republic Act No. 8371) says in Article 3(g) that free,
prior and informed consent ‘shall mean the consensus of all members of the ICCs/IPs [indigenous cultural
communities and indigenous peoples], to be determined in accordance with their respective customary laws and
practices, free from any external manipulation, interference and coercion …’ (emphasis added).
69
RSB, Suggested Rewording for Principles and Criteria – Version 0,6, Part II: Principles, 2, 3, 4, 5, 6, 7 and 12,
(Lausanne: RSB, 2009), p. 4. The document is available at http://rsb.org/pdfs/Versions/RSB-Version-0-6(partII2,3,4,5,6,7,12).pdf (accessed 20 April 2013).
70
RSB, supra note 67 (‘Principles & Criteria’), criterion 2.b.
71
FAO, IFAD, UNCTAD and the World Bank Group, supra note 44, p. 11 (‘involved in a meaningful way with
adequate representation and consultation’); Tirana Declaration on Land Grabbing, para. 4(v) (2011),
www.landcoalition.org/about-us/aom2011/tirana-declaration (accessed 20 April 2013). See also Expert
Mechanism on the Rights of Indigenous Peoples under the Human Rights Council, Follow-up report on
indigenous peoples and the right to participate in decision-making, with a focus on extractive industries,
A/HRC/21/55 (2012), p. 9.
72
D. Burns, F. Heywood, M. Taylor, P. Wilde and M. Wilson, Making Community Participation Meaningful. A
Handbook for Development and Assessment 2-3 (Bristol: The Policy Press, 2004).
73
Ibid., p. 2.
15
relating to the decision-making process. Effective must be understood as implying decisionmaking in a timely manner, in other word a decision-making process that does not take years.
Interestingly, it is the term ‘effective participation’ – and not meaningful participation
– that is applied in international jurisprudence to specify the requirements of community
participation. Hence, the understanding of the Inter-American Court of Human Rights
(IACHR) is that participation shall be ‘effective’, which is operationalised as requiring a
process in conformity with the custom and traditions of the affected people.74 The IACHR’s
understanding of effective participation is comprehensive:
This duty requires the State to both accept and disseminate information, and entails
constant communication between the parties. These consultations must be in good
faith, through culturally appropriate procedures and with the objective of reaching an
agreement. Furthermore, the Saramakas must be consulted, in accordance with their
own traditions, at the early stages of a development or investment plan, not only when
the need arises to obtain approval from the community, if such is the case. Early notice
provides time for internal discussion within communities and for proper feedback to
the State. The State must also ensure that members of the Saramaka people are aware
of possible risks, including environmental and health risks, in order that the proposed
development or investment plan is accepted knowingly and voluntarily. Finally,
consultation should take account of the Saramaka people’s traditional methods of
decision-making.75
In substance, while the terms ‘communication’ and ‘consultation’ are employed, this
paragraph can be understood as a specification of the requirement of effective participation.
The understanding of effective participation as specified by the IACHR therefore goes far
beyond the dictionary definition of the term ‘effective’. There is, however, no requirement
that all the members of the Saramaka people participate; what is decisive is that the Saramaka
people’s traditional methods of decision-making are respected.
Interestingly, a report by the Inter-American Commission on Human Rights, which
predates the Saramaka judgments, states:
…any determination of the extent to which indigenous claimants maintain interests in
the lands to which they have traditionally held title and have occupied and used is
based upon a process of fully informed and mutual consent on the part of the
indigenous community as a whole. This requires at a minimum that all of the members
of the community are fully and accurately informed of the nature and consequences of
the process and provided with an effective opportunity to participate individually or as
collectives.76
We see that the term ‘all’ is applied, specifying that all shall be accurately informed,77
and that the participation of the individual and the collective is equally emphasised. This can
74
Saramaka judgment, supra note 50, para. 129; see also para. 133, and Saramaka interpretation of the judgment,
supra note 50, para. 13, specifying the Saramaka people’s representatives’ specification of the term effective
participation.
75
Ibid., para. 133 (extract).
76
Inter-American Commission on Human Rights, Mary and Carrie Dann v. USA, Report No. 75/02 (27
December 2002), para. 140.
77
As seen in Philippines Indigenous Peoples Rights Act, supra note 68, Article 3(g) requires ‘consensus of all
members’, but as noted by G.S. Nijar, Incorporating Traditional Knowledge in an International Regime on
Access to Genetic Resources and Benefit Sharing: Problems and Prospects 21 European Journal of International
Law 457, 471, n57 (2010), the Philippine Act represents ‘an exception’.
16
be understood as an indication of different approaches being adopted by the Commission and
the Court. Alternatively, the different approaches could reflect the fact that the communities
are located in rather different contexts, providing for differing emphasis on the individual. It
seems that the approach expressed in the Saramaka judgment has prevailed.
One provision of UNDRIP also applies the term ‘effective consultations’ when
requiring involvement with the indigenous peoples concerned.78 Moreover, as we saw above,
when clarifying Article 27 ICCPR the Human Rights Committee applied the term
‘effective’,79 and this term was also applied when finding that the activities carried out by the
State party did violate the right of the applicant to enjoy her own culture together with the
other members of her group.80 While this ruling had less explicit reference to the affected
community’s traditional methods of decision-making, it required the FPIC of the members of
the community, requiring also that the members of the community in question had had the
opportunity to participate in the decision-making process.81 The references are to the
members, without specifying that this consent had to come from all the members.
It is thus reasonable to state that both the IACHR and the HRC have applied an
understanding of participation, consultation and consent that is operative primarily on the
community level, but that the HRC is less explicit in defining ‘effective’ as implying a
decision-making process that can only be undertaken in accordance with indigenous people’s
traditional methods of decision-making. The HRC’s more open approach may be a
consequence of the fact that globally some indigenous peoples are less united and have not
kept their internal cohesion as well as the indigenous peoples of the Americas. As stated
initially, collective decision-making might be fully appropriate in nine out of ten cases, and
reflect the fact that the land is collectively owned.
We proceed now to a review of community decision-making that causes serious
internal conflicts.
PROCESSES OF CONSENT – OR COOPTATION?
The analysis conducted so far shows that rather detailed requirements have been developed in
order to specify the content of an appropriate process for involving affected communities
before any projects can proceed. At the same time, the operationalisation of effective
decision-making, namely that decision-making takes place in a manner determined by the
respective communities, can give rise to real dilemmas.
The overall FPIC requirements are stricter in cases of relocating and disposing of
hazardous waste.82 First, the consultation is done in a manner that is free from external
coercion, including any form of bribery. Second, the consultation takes place prior to any
decision-making in relation to project activities, with enough time for internal deliberation in
the community. Third, the full scope of the planned project is presented in an appropriate
UNDRIP, supra note 7, Article 30.2, reading: ‘States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures and in particular through their representative
institutions, prior to using their lands or territories for military activities.’ See Articles 19 and 32.2 UNDRIP,
requiring that the decision-making process must be in accordance with the indigenous peoples’ ‘own
procedures’. The phrase ‘customs, traditions and land tenure systems of the indigenous peoples concerned’ is
applied in Article 26.3UNDRIP.
79
Supra note 36; see also Expert Mechanism on the Rights of Indigenous Peoples under the Human Rights
Council, Final report of the Study on Indigenous Peoples and the Right to Participate in Decision-making
A/HRC/18/42 (2011) 25 [Annex, para. 13], requiring effective participation, but the document also refers to
meaningful participation, see ibid., 16 [para. 61].
80
Poma v. Peru, CCPR/C/95/D/1457/2006 (2009), para. 7.6.
81
Ibid. The members of the community in question have had the opportunity to participate in the decisionmaking process.
82
See supra, note 46 (ILO 169) and 47 (UNDRIP).
78
17
manner. It should be noted, however, that the UN-REDD FPIC Guidelines do not specify that
the scope of the project must be indicated in the landscape, but require that the information be
accessible, clear, consistent, accurate, constant, transparent, culturally appropriate, objective
and complete.83 Fourth, a community’s customary norms can require that approval be given
by only a majority of the designated decision-makers, not the full consensus of the whole
community.
While the internal decision-making amongst indigenous peoples and local
communities must be acknowledged and respected, this cannot exclude the possibilities that
the most affected persons may not be able to express their views, or that their views may not
be adequately taken into account. We will now consider whether the sidelining of the most
affected persons in the consent process is likely. As seen above, the requirements as
formulated in international treaties and by international human rights courts do not adequately
acknowledge the rights and interests of the most affected persons within a community.
The examples will be taken from Indonesia.84 A CIFOR (Center for International
Forestry Research) study finds that ‘key leaders in a village can be convinced to give up
ownership of a forest area…’.85 Are such processes contrary to the UN-REDD Guidelines on
FPIC? The two latter requirements specifying free consent are at the core of this question.
First, as specified in the Guidelines, ‘decisions take place … in …formats determined by the
stakeholders’,86 but the customs of these communities might specify that certain elders take
decisions without any procedural requirements for the involvement of the other members of
the community. Second, ‘[a]ll community members are free to participate…’.87 If complying
with the first requirement implies that the second requirement cannot be adequately fulfilled,
the resulting process is not in accordance with the UN-REDD Guidelines on FPIC – even if
decision-making in accordance with local custom is specified by the IACHR to be an
operationalisation of effective decision-making.88
Another study tells several stories of the bribing of certain influential persons in the
communities.89 There can be no doubt that bribery is not in accordance with the requirement
of free consent.90 In the Oxford dictionary, bribery is defined as ‘dishonestly persuade
(someone) to act in one’s favour by a gift of money or other inducement’ and inducement is
defined as something that ‘persuades or leads someone to do something.’ An interesting
question is whether serving food and drinks during a village or community meeting is bribery.
Such provisioning might be done as a service to those attending an information meeting with
an actor seeking to develop a project, with a motivation being that it enables them to stay on
83
UN-REDD, supra note 5, p. 19.
Indonesia does recognise customary rights (‘hak ulayat’), both in the Constitution and in the relevant laws,
subject to a number of conditions. The first is that the communities (‘adat’) which are governed by custom
‘really exist’, as formulated in Article 18B(2) of the Constitution; Indonesian Forestry Law No 41/1999 Article
4(3) applies the term ‘actually still exist and their existence is recognized…’. The second is that the exercise of
these rights is ‘consistent with national and state interests’ (Indonesian Forestry Law No 41/1999 Article 4(3)).
The third is that the rights do not contradict ‘higher-level laws and regulations’ (Indonesian Basic Agrarian Law
No 5/1960, Article 3). These conditions are far-reaching and may effectively restrict the application of
customary rights. In addition, it is crucial to know that the term ‘public interests’, as specified in Article 2(1) of
Presidential Regulation No 65/2006 on provision of land, includes projects by commercial actors.
85
D. Sheil, A. Casson, E. Meijaard, M. van Noordwijk, J. Gaskell, J. Sunderland-Groves, K. Wertz and M.
Kanninen, The Impacts and Opportunities of Oil Palm in Southeast Asia. What Do We Know and What Do We
Need to Know? CIFOR Occasional Paper No. 51 39 (Bogor: Center for International Forestry Research, 2009).
86
UN-REDD, supra note 5, p. 18.
87
Ibid., p. 19.
88
Saramaka judgment, supra, note 50 and accompanying text.
89
Friends of the Earth, LifeMosaic and Sawit Watch, Losing Ground. The Human Rights Impact of Oil Palm
Plantation Exploitation in Indonesia 32-3, 91-2 (London, Edinburgh and Bogor: Friends of the Earth UK,
LifeMosaic and Sawit Watch, 2008).
90
UN-REDD, supra note 5, p. 18.
84
18
and continue the meeting. As it could be interpreted as a tactic to influence the community
towards a more positive reception of the external actor, it should be avoided, however.
Finally, there are also reports that companies have obtained a kind of community
consent after telling the community that it has already been decided that the land is to be
transferred, a process termed ‘socialisation’.91 This is obviously contrary to the FPIC
requirements.
Of a more substantive nature, the long-term implication of consenting to any project is
the loss of traditional rights to the land.92 In Indonesia, companies can obtain lease
agreements with a duration of 95 years,93 but by such lease agreements the land is
permanently transferred to State control.94 If the information provided to the community is to
be accurate and complete, these long-term consequences must be included.
These three examples of inappropriate processes from Indonesia are obviously not in
accordance with the FPIC requirements, but as the analysis shows there might be other
instances of conduct which are less evidently non-compliant. These examples nevertheless
also illustrate the possibility that the co-optation of community leaders and resulting conflict
may undermine social cohesiveness within communities.
CONSENSUS THROUGH COMMUNITY DECISION-MAKING
As we have seen, the requirement for achieving FPIC is that there has been consensus or
approval by a majority within the community. There can be no doubt that consent by
consensus is preferable to consent by a majority. Is consensus a realistic option? Various laws
will be examined to see how consensus is sought.
The requirement of one domestic legislation, the Philippines Indigenous Peoples
Rights Act, stands out by requiring ‘consensus by all members’.95 Moreover, the Act requires
a community assembly in order to approve any bioprospecting activity, and adopted
Guidelines specify that the ‘assembly shall be conducted in accordance with their customary
laws and practices/traditions’.96 Hence, while gaining consensus might require relatively
strong internal pressure, the process foreseen by the Act is an inclusive one in which the
whole community participates through an assembly. In general, for an assembly to seek to
bring dissenting voices into conformity with the majority, several internal meetings may be
needed, and an effective consultation process may require a number of meetings with the
interested external actor, facilitated by competent public servants. While the number of
91
M. Colchester, N. Jiwan, Andiko, M. Sirait, A.Y. Firdaus, A. Surambo and H. Pane, Promised Land. Palm Oil
and Land Acquisition in Indonesia. Implications for Local Communities and Indigenous Peoples 170 (Bogor,
Jakarta and Moreton-in-Marsh: Sawit Watch, World Agroforestry Centre, HuMa and Forest Peoples Programme,
2006).
92
For a description of the process, see Colchester et al., supra note 91, pp. 63-66. Note, however, that the
description is not based on Indonesian Presidential Regulation 65/2006, which specifies in Article 2(1) that the
‘development for public interest is done by means of relinquishment and delivery of land title’ (italics added),
while Article 7 of the same Regulation talks about rights being ‘relinquished or given up’ (italics added).
93
Under Article 22 Indonesian Investment Law No 25/2007, companies obtain a lease of 35 years, with options
for a 25-year extension and a 35-year renewal. Originally, Investment Law No 25/2007 gave a land-use permit
(HGU) for 60 years, but based on a ruling by the Constitutional Court in 2008, the period was limited.
94
Indonesian Forestry Law No 41/1999 says that the forests are not owned by the State, but controlled and
administered by it; Article 4(3) says that State control implies the power to ‘regulate and determine legal
relations between man and forest’; see M.T. Sirait, The Emergence of Forest Land Redistribution in Indonesia.
CIFOR Working Paper No 85 (Bogor: Center for International Forestry Research, 2008).
95
Supra note 68.
96
Guidelines for Bioprospecting Activities in the Philippines, Section 13.2(b); see: www.cbd.int/abs/measures.
Nijar, supra note 77, p. 466, n42 lists Costa Rica, Pakistan and South Africa as States having legislation giving
indigenous and local communities the right to refuse access to their traditional knowledge, with no authority for
State authorities to overrule such decisions.
19
meetings is not specified in any specification of the FPIC requirement, there are requirements
regarding adequate time, as identified by ILO’s CEACR and the IFC.97 This provides – in
principle – for a more inclusive process compared to the practices that have been referred to
in the section above.
A study of how African States require consent to land transfer by local communities
singles out Tanzania and Mozambique as having ‘the most progressive legislation’,98
operationalised as requirements for local consultation and consent. The relevant Tanzanian
legislation states that one of its fundamental principles is to ‘enable all citizens to participate
in decision making on matters connected with their occupation or use of land’.99
The study finds, nevertheless, that the relevant procedures for ensuring broad-based
consultation and consent are being implemented only partially in these two States. First, there
are inadequate efforts to include significant social groups; second, community-level meetings
are dominated by community leaders; third, there are no mechanisms to identify and resolve
differing priorities; fourth, there is insufficient information; fifth, consultation tends to be a
one-off event; sixth, records of meetings are incomplete and vague; seventh, relevant
agreements are not set down in formal documents or legally binding contracts.100
These findings become even more worrying given that the Tanzania Village Land Act,
which specifies that village assemblies are to make decisions on the possible transfer of
land,101 is not generally known to or available in many village councils and assemblies.102
Moreover, although to comply with the Act the villages are required to have a land use
plan,103 less than 5 per cent have one.
Hence, the only tenable approach is that decisions to permit investment activities
within territories that by legal or customary law belong to indigenous peoples or local
communities be taken by the most inclusive process within the community. Moreover, a
positive decision to proceed with any project, particularly if it is on a large scale, should not
be made if a considerable number of persons in a community express their opposition. Ideally
the decision making should include all adult members of the community, both women and
men. Only this will ensure that the process is of an acceptable quality.
Faced with a situation in which consensus cannot be achieved, the decision should be
fully respected both by the investors and by the local and central political authorities. The
customs and practices of each community will determine what is required for consensus, by
See CEACR, supra note 8 (‘timely manner’) and the IFC, supra note 8 (‘adequate time’). It cannot be
presumed that one meeting with the external actor and one internal meeting is adequate for a full comprehension
of the proposed activity and the likely consequences.
98
Sonia Vermeulen and Lorenzo Cotula, Over the Heads of Local People: Consultation, Consent and
Recompense in Large-Scale Land Deals for Biofuel Projects in Africa, 37 Journal of Peasant Studies 909 (2010),
referring to two IIED studies: Isilda Nhantumbo and AldaSalomão, Biofuels, Land Access and Rural
Livelihoods in Mozambique (London: IIED, 2010) and Emmanuel Sulle and Fred Nelson, Biofuels, Land Access
and Rural Livelihoods in Tanzania 63-64 (London: IIED, 2009).
99
Tanzania Village Land Act No 5 of 1999, Article 3.
100
Vermeulen and Cotula, supra note 98.
101
In accordance with the Village Land Act, supra note 96, Section 8(5), the approval of the village assembly is
required for the allocation of land or grant of a customary right of occupancy; see also Village Land Act, Section
5 (‘Transfer of general or reserved land to village land’); Section 7 (defining ‘village land’), Section 14 (‘Land
which is or may be held for customary rights of occupancy’), the latter being regulated in Part IV.B (Sections 22
through 47). See also Land Act No 4 of 1999, Section 5(8), reading (extract): ‘that land shall, after the transfer,
be under the jurisdiction of the Village Council of the village to which the land has been transferred.’ The overall
principle on respecting local custom is outlined in Village Land Act Section 20(2), reading (extracts): ‘Any rule
of customary law and any decision taken in respect of land held under customary tenure, whether in respect of
land held individually or communally, shall have regard to the customs, traditions, and practices of the
community concerned…’.
102
German et al., supra note 57, p. 28.
103
Village Land Act, supra note 99, Section 13(2)(a); 23(2)(f)(ii); 33(1)(a).
97
20
taking account of the interests of those who express dissenting opinions. Obviously, this
might require that the investor adjusts the original investment plan – or withdraws it
altogether. While this might harm the commercial actor, the author agrees with the
observation that ‘villages carry most of the risks’:104 simply stated, the consequence for the
villages and communities is that their land is transferred to private or governmental ownership
– and they might have their resources depleted and no investments made.
Before the community makes any decision, the investor should approach the
community only when accompanied by a competent representative from the authorities,
whose role should be to ensure that the relevant legislation is complied with. Is it required that
a representative from the authorities be present at any encounters between the community and
the investors in order to facilitate the consultation and ensure that it is not biased or
inadequate in any other ways?
The FPIC Guidelines do not specify whether the consultation must be facilitated by a
representative from the authorities,105 but Article 6.1(a) ILO 169 specifies that it is
governments that must consult the peoples concerned. Moreover, as to the content of the
consultations, Article 6.2 ILO 169 says that consultation is to be undertaken in ‘good faith and
in a form appropriate to the circumstances, with the objective of achieving agreement or
consent to the proposed measures’. Rather than emphasising the role of the government, the
UN-REDD FPIC Guidelines say that information should be given by ‘culturally appropriate
personnel’, specifying that there should be ‘capacity building of indigenous or local
trainers’.106
As ILO 169 is legally binding, the government must facilitate the consultation process,
but the non-binding FPIC Guidelines bring in an additional requirement, namely the
involvement of ‘personnel’ or ‘trainers’, but without specifying whether these have to be
public employees. In the absence of any specification on recruitment or approval of such
persons, it must be presumed that the overall requirements of Article 6.1 and 6.2 ILO 169
imply that the government of the country concerned must at least have the role of approving
the participation of such persons. We see, however, that there is a shift from governmental
representatives to culturally appropriate personnel in the consultation process, which can be
explained by the fact that government representatives tend to be very eager to see any projects
initiated, and therefore take the side of the external actor rather than ensure adequate
protection of the rights and interests of the affected communities. So as to ensure that the
process is adequate, both legally and morally, competent persons must therefore be provided
with a mandate and actually attend all encounters between the community and the external
actors. Those persons who are given a mandate to monitor and give advice during the
consultation process must also be familiar with contracts, implying that all promises that are
made orally should also be written down in agreements that are annexed to the main
agreement.
In this manner, the government can meet its responsibility to ensure that the whole
consultation process meets minimum standards, as specified in the UN-REDD Guidelines on
FPIC. These guidelines can be seen as an operationalisation, but those States that are parties
to ILO 169 are also under a legal obligation to ensure that the consultation process takes place
in a form appropriate to the circumstances.
CONCLUSIONS
104
Sulle and Nelson, supra note 98, p. 63.
Ward, supra note 3, pp. 80-81 finds, based on a review of the practice of UN human rights treaty bodies, that
the government must ensure that consultations were undertaken and that such consultations had the intention of
reaching agreement.
106
UN-REDD, supra note 5, p. 19.
105
21
This article demonstrates that the principle of FPIC is an emerging principle that is only found
in one international treaty, namely Article 16.2 ILO 169, which specifies the FPIC
requirement in cases of relocation of indigenous peoples. In the context of human rights, it is
reasonable to state that FPIC is an operationalisation of the natural resources dimension of the
right to self-determination of peoples, as recognised in Article 1.2 ICCPR and the ICESCR, as
well as a specification of the right to own property collectively, as recognised in Article
5(v)(d) ICERD. The FPIC requirement can also be understood to represent an
operationalisation of the human right relating to culture, as specified in two General
Comments.107 Moreover, observance of human rights principles is crucial if a good process is
to be ensured.108 While corporations and States will observe these principles differently, all
principles are relevant for corporate actors, in particular when operating in countries with
relatively weak institutions and in contexts where persons and communities are vulnerable.
The prevailing approach to specifying corporations’ human rights responsibilities is likely to
be the ‘due diligence’ approach, whose purpose is to ‘prevent and mitigate adverse human
rights impacts…’.109 This approach is useful, but does not specify how to ensure adequate
processes of participation.
While all human beings are equally entitled to human rights protection, and while the
right to participation in the conduct of public affairs is a widely recognised human right, 110 it
is necessary to adopt special measures to ensure an adequate quality of the participatory
process when indigenous peoples and other local communities are faced with any large
intervention by public or private actors. This process of participation must be meaningful,
defined as being ‘serious, important, or worthwhile’. Effective participation, defined as ‘a
process in conformity with the custom and traditions of the affected people’,111 is not
necessarily fully adequate, as the most vulnerable and marginalised persons within a
community may be sidelined from the decision-making process, and may subsequently be
most negatively affected by the resulting intervention.
External actors will tend to prefer a situation involving few persons to engage with and
as few meetings as are necessary for any decisions to be made. Hence, a stronger emphasis on
human rights principles in the decision-making process will make the overall process more
burdensome. By ensuring real participation at an early stage of the process, however, there
will most likely be less conflict during the implementation of any project activity. The
guidelines on FPIC provided by UN-REDD112 and the UN Development Group (UNDG)113
are very useful resources.
107
See UN Human Rights Committee, supra note 36, and CESCR, supra note 36, para. 37 (‘States parties should
respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their
specific rights.’).
108
See Haugen 2010, supra note 26; the human rights principles are identified as dignity, non-discrimination,
rule of law, accountability, transparency, participation and empowerment, and to this list can be added
‘sustainable and holistic approach’.
109
UN, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect
and Remedy’ Framework, A/HRC/17/31, principle 19 (2011), as approved by A/HRC/RES/17/4, para. 1.
110
ICCPR Article 25.1, reading: ‘Every citizen shall have the right and the opportunity… [t]o take part in the
conduct of public affairs, directly or through freely chosen representatives.’
111
Saramaka judgment, supra note 50, para. 129.
112
Supra note 5, pp. 19-21. Note that there is continuing criticism of the way the UN-REDD operates on the
ground; see No-REDD+, UN-REDD Violates Right to Free, Prior and Informed Consent (2013), http://noredd.com/un-redd-violates-right-to-free-prior-and-informed-consent (accessed 20 August 2013).
113
UN Development Group (UNDG) Guidelines on Indigenous Peoples’ Issues 28 (2008).
22
For the most vulnerable persons and communities, indirect participation – taking place
through freely chosen representatives – is not necessarily adequate.114 Hence, it seems
reasonable to conclude – in line with the three premises presented in the introduction – that
the participation of particularly affected individuals has not been adequately emphasised.
As noted by Sulle and Nelson, supra note 98, p. 53: ‘where consultations do happen, very poor households
may not be adequately represented.’
114
23