FPIC and the RSPO

Free, Prior and Informed

Consent and the RSPO
Marcus Colchester
Forest Peoples Programme

RSPO
Roundtable on Sustainable Palm Oil

FPIC and the RSPO

What is FPIC (cont.):

Without coercion or duress (Free)
Before the initiation of activities (Prior)
After the complete sharing of available
information on the proposed activities and
their implications, according to an agreed
process and with adequate time
(Informed)
Providing information may take time (eg
ESIA), hence need for iterative
RSPO
interactions

FPIC and the RSPO

Not really a new concept

Why FPIC?
Its the law
Its part of best practice standards
It protects community rights
It is designed to forestall conflict
It protects investors from risk
It encourages successful development
outcomes
Its required under the RSPO standard

RSPO

FPIC and the RSPO

FPIC and the RSPO

What is FPIC?
Right to say yes or no to proposed
developments on peoples lands
Consent which is determined in conformity
with, or with respect for, peoples cultures,
customary systems and practices
According to peoples own representative
organisations/ institutions
Iterative and negotiated, not hurried and
one- off

RSPO

FPIC in international law:

International Human Rights Laws:
UN Declaration on the Rights of
Indigenous Peoples : especially Article 32
ILO : 6(2) y 7(1)
CBD : 8j
Jurisprudence:
UN Committees on Human Rights and
CERD
Inter-American Commission and Court of
RSPO
Human Rights

FPIC and the RSPO

FPIC and the RSPO

UN Declaration on Rights of Indigenous

Peoples:
Article 32
1. Indigenous peoples have the right to determine
and develop priorities and strategies for the
development or use of their lands or territories
and other resources.
2. States shall consult and cooperate in good faith
with the indigenous peoples concerned through
their own representative institutions in order to
obtain their free and informed consent prior to the
approval of any project affecting their lands or
RSPO
territories and other resources

Conflicts:
Because so much land has been taken
from communities without FPIC there are
conflicts throughout the palm oil zone
500 conflicts between communities and oil
palm estates in Indonesia, according to
SW
In 40 conflicts between communities and
oil palm estates in Sarawak, communities
are already suing Govt and companies in
the courts, according to FPP and SWRSPO

FPIC and the RSPO

FPIC and the RSPO

FPIC in other sectoral standards:

Development policies eg UNDP, EC, IBD
(resettlement), WBG (FPICon and BCS)
Plantations: FAO Voluntary Guidelines for Planted
Forests: no resettlement without FPIC
Timber: Forest Stewardship Council
Dams: World Commission on Dams
Extractives: Extractive Industries Review
Protected Areas: WCPA, WPC, WCC, CBD
EIAs: CBDs Akwe:kon Guidelines

RSPO

FPIC and the RSPO

Protecting investments
from risk
early attention to FPIC issues can avoid
significant costs during implementation
Even as we refine what this principle
means in operation, there is no question
that as a principle and as a practice, free,
prior, informed consent is a key part of
legitimacy. And if you wonder if that is true,
simply ask this question: Is your company
better off having the people in the
communities where you operate with you
or against you? It is just plain common
sense.
WRI, 2006, Development Without Conflict: The Business Case for
Community Consent, Washington DC

RSPO

FPIC and the RSPO

FPIC in the RSPO P&C

FPIC and customary rights:

Relates to customary lands and territories
Requires agreement about the extent of
customary lands over which FPIC is exercised
Recognition of customary systems of collective
decision-making
and customary mechanisms of representation
Provides a means of holding leadership
accountable and ensuring community
consensus

RSPO

2.3 Use of the land does not diminish the legal rights, or
customary rights, of other users, without their free, prior and
informed consent
7.4 No new plantings are established on local peoples land
without their free, prior and informed consent, dealt with
through a documented system that enables indigenous
peoples, local communities and other stakeholders to
express their views through their own representative
institutions.
7.5 Local people are compensated for any agreed land
acquisitions and relinquishment of rights, subject to their
free, prior and informed consent and negotiated agreements.

RSPO

FPIC in the RSPO

FPIC and the RSPO

Challenges to FPIC in Indonesia:

FPIC : Indicators (2.3)

Maps showing extent of recognised
customary rights (criteria 2.3, 7.5 and 7.6)
Copies of negotiated agreements detailing
process of consent (criteria 2.3, 7.5 and
7.6)

RSPO

Unclear legal recognition of customary rights

Customary rights expropriated to make way for
national interest (Controlling power of the
State)
Inconsistent laws (some imply right to consent
others imply not needed)
Inadequate consultation and lack of FPIC
Little or inadequate compensation
Non-binding agreements and contested
application

FPIC in the RSPO

FPIC : Guidance (2.3)
Where lands are encumbered by legal or
customary rights, the grower must demonstrate
that these rights are understood and are not
being threatened or reduced. This criterion
should be considered in conjunction with criteria
6.4, 7.5 and 7.6 . Where customary rights areas
are unclear these are best established through
participatory mapping exercises involving
affected and neighbouring communities.

RSPO

FPIC and the RSPO

FPIC and the RSPO

RSPO Guidance (2.3) (cont.):

Allows for sales and negotiated agreements
Compensation for lost benefits and/or
relinquished rights.
Allowed to seek legal counsel
Open decision-making
Time for customary decision-making
Agreements binding on all parties and
enforceable in the courts.

RSPO

UN Committee on the Elimination of

Racial Discrimination reviews Indonesian
compliance
The State party should amend its domestic laws to ensure
that the concept of national interest [is] not used as a
justification to override the rights of indigenous peoples
[and] recommends that the State party secure the possession
and ownership rights of local communities before proceeding
with the Kalimantan Border Oil Palm Mega-project [and]
ensure meaningful consultations are undertaken with
concerned communities with a view to obtaining their
consent and participation in the Plan
CERD/C/IDN/CO/3 15 August 2007 paras 16 and 17

RSPO

FPIC and the RSPO

FPIC and the RSPO

Challenges to FPIC in Sarawak:

Native Customary Rights interpreted in very
restricted way by government
Idle land allocated to oil palm companies without
recognition of rights
or Konsep Baru requires surrender of NCRs to
Government as Trustee for 60 years without clear
benefit sharing
Unclear consultation and consent process
Growing conflicts, costly litigation
SW and FPP, 2007, Land is Life: Land Rights and Oil
Palm Development in Sarawak, Bogor

The RSPO FPIC project: request for training

Series of planned workshops with communities,
companies and both together in Malaysia, PNG and
Indonesia; handbook; and training materials
Project agreed by EB Nov. 2006 (E 96,360)
Application to PPP. Dutch govt. agreed Jan. 07
Funding blocked by government representatives
Reduced project for Indonesia only became
operational June 2007 with E 14,500 from EB
Not yet found an RSPO company to volunteer

RSPO

RSPO

FPIC and the RSPO

Key lessons from review so far:
Participatory mapping of customary lands
Mapping of representative institutions
Inclusive mechanisms of negotiation
Participatory environmental and social
impact assessments
Provision of information in languages and
forms suited to local people
Iterative negotiations

RSPO

FPIC and the RSPO

FPIC and the RSPO

Key lessons:

More key lessons from review so far:

Govt. land acquisition procedures and laws in

Sarawak and Indonesia do not adequately
protect customary rights or require FPIC
Private sector in awkward situation, hence
need for RSPO standard to go beyond the law
National Interpretations therefore also need to
ensure that RSPO processes for customary land
recognition and FPIC go beyond what the law
requires

Full clarity about land allocation on expiry of lease

Clear and agreed benefit-sharing and smallholder
arrangements
Excision of No areas : ie refused consent
Legalising agreements
Inclusive and participatory M&E processes
Dispute resolution and grievance procedures
Renegotiation at re-planting
Renegotiation in conflict areas is possible

RSPO

RSPO

Thank you
www.rspo.org
www.forestpeoples.org

RS