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The Politics of Free, Prior and Informed Consent: An Interview with Leila Kazemi and Tehtena Mebratu-Tsegaye

On the occasion of the Release of Akubadaura’s Report on Prior Consent, in collaboration with Columbia University an exercise of knowledge exchange was held. Here is an interview with two of the researchers at the Columbia Center on Sustainable Investment. Columbia Law School – The Earth Institute, Columbia University

Q: What do you see as the main cause of limitations on the effectiveness of existing FPIC and prior consultation processes?

There are multiple reasons why FPIC processes and prior consultation processes linked to extractives projects are carried out in ways that fail to serve, and at times even undermine, the rights of Indigenous and local communities. Among them: the absence of appropriate domestic regulation, colliding worldviews, and a lack of independent support for communities engaged in these processes. However, based on our research over the last few years, another critical determinant of the fate of these processes is a familiar one: politics. More specifically, the relative power of the different actors involved in these processes and the interests and incentives that drive them can have a significant impact on how FPIC and prior consultations function and whose interests they serve. 

Unfortunately, those with the greatest power to determine how these processes are run — who participates, when they take place, what the scope of discussions will be, whether or not they will inform key decisions — tend to have a strong interest in limiting their effectiveness as vehicles for meaningful consultation and for securing consent around extractives projects. As a result, these processes are typically run in ways that favor government and company interests i.e. in ways that keep decision-making power in the hands of government and corporate actors and hollow these participation mechanisms so much that are commonly now described as “box-ticking exercises.”

Q: Based on your research and analysis, what do you see as some of the most important ways in which we need to change how we work on FPIC/PC?

One key and overarching message to come out of the research that is more widely applicable, is that political realities must be more firmly integrated into the way global actors work on these issues. Approaches must not just be technically sound but also politically savvy. In our report we map how the power of different actors involved in prior consultation processes impact how they unfold, to provide a basis to think about how to address these dynamics. Our research also provides an overview of different strategies aimed at tackling the political obstacles to more effective FPIC and prior consultation processes head on. The ideas in the final section of the report are grouped into strategies that explicitly aim to change, circumvent, or navigate the power and interest dynamics that impede progress. So, for example, changing the balance of power might entail more attention to supporting strategic coalitions at various levels or trying to encourage the use of indigenous protocols to “set the rules of the game” for FPIC processes. On the other hand, changing incentive calculations might involve creating more disincentives for ignoring community and indigenous voices through strategic litigation or direct action. There are analogous ways to more opportunistically and incrementally work within existing political realities as well as possibilities to work around political obstacles, e.g. through direct engagement with extractives companies and their investors.

Such ideas provide an initial starting point and tangible examples of the types of work that could be done, or is already being done, to actively address existing misalignments in either stakeholder incentives or power dynamics. The type of work you do—whether you are a donor, an activist, or working in a community-based organization—will influence which strategies resonate. 

Q: Who are you hoping will look at your report and what do you hope they do as a consequence?

The report is really designed for activists, donors, government reformers, INGOs and others who are working at various levels – global, national and local — to improve the performance of FPIC and consultation processes By highlighting how the interests and incentives of the most powerful actors fundamentally undermine the realization of the right to FPIC, and by providing ideas for addressing political challenges alongside technical ones, we highlight the importance of actively and systematically integrating political considerations into approaches and strategies. Regular use of some sort of political economy analysis (PEA) to identify challenges and opportunities in the political landscape and to guide approaches to deal with them should become standard practice for those hoping to have lasting impact. Yes, good legislation and policy are crucial foundations of good practice as is the capacity of key stakeholders to participate effectively, but if powerful actors can hijack FPIC and consultation processes for their own interests, there is a real risk of supporting measures and mechanisms that hold great promise on paper but under-perform in practice. 

Q: What are your next steps building on this work [or whatever other opportunity people want to plug their next projects]?

We identified a number of avenues to take forward some of the ideas and findings coming out of the research. For now, we are developing a project on autonomous protocols that explores opportunities to further socialize and promote the acceptance of protocols and community by-laws as the rules by which the Indigenous and local communities who have developed them, should be engaged. This would put more of the power for setting the rules of the game in their hands. We are also delving more deeply into the political economy dynamics within mining companies and exploring what it would take to nudge these in the right direction in terms of supporting FPIC and prior consultation processes that better serve Indigenous peoples and local communities.