Moving from Consultation to Consent?

FPIC Indigenous People IFC PSThe IFC Performance Standards require that projects with potentially significant impacts conduct ‘Free, Prior, Informed Consultation’ (FPIC) and demonstrate ‘Broad Community Support’ (BCS). Will these requirements move towards the concept of ‘Consent’ particularly in the context of Indigenous Peoples?

Shortlink: http://wp.me/p27qSt-3v

During the March 2010 PDAC exploration and mining convention in Toronto, the Export Development Canada (EDC), hosted an event entitled “Who are you and what have you done with my banker?” This event took a ‘process-oriented’ look at how the environmental and social requirements for various sources of capital for mining and metal projects are integrated into due diligence and decision making processes, and what that means for sponsors seeking project finance and political risk insurance.

During his presentation, John Middleton of the IFC highlighted that the topic of ‘Consent,’ was deliberately not adopted when the IFC Performance Standards were developed and launched in 2006. However, this topic is now back on the table during the on-going review process of the IFC Performance Standards (see also my previous blog: Review of 3 years of IFC Performance Standards).

It is not surprising that Indigenous People/affected communities want to be able to have a say about if, what and how development should take place. Similarly, the extractive industry is concerned about their perception of veto power embodied by the world ‘Consent’ and how this might be used (or misused) to dilute their legal titles and undermine their investments.

There is already precedence set on using the term ‘Consent’ by another multilateral financial institution: the European Bank for Reconstruction and Development (EBRD). It’s 2008 Environmental and Social Policy and associated Performance Requirements, which are largely modeled after the IFC Performance Standards, the EBRD refers to specific vulnerability of Indigenous Peoples and the 2007 UN Declaration on the Rights of Indigenous Peoples. EBRD now requires that the prior informed consent of affected Indigenous Peoples is required for specified project-related activities.

There is another fascinating aspect about the concepts of Broad Community Support, which can exist even if not everybody approves, and Consent, which may be offered through an MOU or similar process and can also exist when not everybody supports a project. These concepts remind me of a marriage. Good ones contain an implicit need to earn support/consent which does not end with a signed paper – it has to be continuously earned and strengthened to withstand the ups and downs of real life – warts and all.