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August 17, 2019

“Free, Prior and Informed Consent”- An Indigenous Right of “Adivasis”

Free, Prior and Informed Consent (FPIC) has been of a great benefit to indigenous people in fighting for their indigenous right. It is very invaluable for indigenous people in preserving their language, traditions, culture and livelihood. The indigenous people are chamberlain of natural resources and sentinel of biodiversity. All peoples have the right of self-determination. They have the free legal right to determine their political status and freely pursue their economic, social and cultural development. Indigenous people have the right to development in their own way. FPIC has a greater significance in International Law. The United Nations Economic and Social Councils estimated that there are around 400 million indigenous people or 5% of total population of the world. The underdevelopment of indigenous people leads to higher rate of poverty, food insecurity, unemployment, and malnutrition.
  FPIC has a mammoth impact on the world. In the year 2007, The UN General Assembly adopted The United Nations Declaration on the Rights Of Indigenous Peoples (UNDRIP), recognizing their rights and making specific mention of Free, Prior and Informed Consent(FPIC) as a pre-requisite for any activity that may affect them through any mean like ancestral land, culture, right to property, tradition and natural resource. In Article 8(1), 8(2) (b), 10, 11, 18, 19, 27, 28(2), 29, 31of UNDRIP the concept of Indigenous peoples right has been clearly discussed. In “ILO Convention 169” or “ILO 169” the rights of indigenous and tribal people are mentioned. It is a legally binding International law. In India, The Schedule Tribe and other Traditional forest dwellers(Recognition of Forest Rights) Act 2006 states that- “The perceived rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while ensuring livelihood and food security of the forest dwellings Scheduled Tribes and other traditional forest dwellers.” Ama Jungle Yojana (AJY) is one of the movements by Adivasis to promote Forest Rights Act 2006.
The key elements of FPIC are interconnected in itself. Free, Prior and Informed are one of those elements who have its own implications. Further, if we define them in a more legitimate and elaborative way then Free means independent decision without many manipulations, Prior means pre-planned or action is taken with prior stated information and Informed means based on accuracy and time with sufficient information. The fundamental element in FPIC is “Consent”. Article 32 (2) of UNDRIP states that- “States shall consult and cooperate in good faith with the Indigenous people concerned through their own representative institutions in order to obtain Free, Prior and Informed consent for approval of any project affecting their land and territories.” Article 6 of ILO Convention states that- “The right of indigenous people to be consulted and to freely participate at all levels of decision-making when policies might affect them.” Even some of the NGOs are fighting for the indigenous people rights on the international level so that their legal and constitutional rights are not been violated.   
 An amendment proposed by National Advisory Council (NAC)- Panchayat (Extension to Schedule Areas) Act 1996 which states that- “Free, prior and informed consent of affected Adivasi community be mandatorily be obtained before the government acquires any land for development projects. Not consultation or recommendation, as PESA currently says, free, prior and informed consent.” If they will not take consent it will adversely contribute to Human Rights abuse. It gives a pessimistic of social, economic, cultural, religion, ecological consequences of the Adivasi community. The community should be pre-informed about the risk involved and what will be the significant effect of the development project. Article 48A of the Indian Constitution states that- “Merely asserting an intention for development is not enough to sanction the destruction of the local ecological resource.” 
If at all the project manager wants its project to implement in a smooth way then they should reach to the public at large. They should have a bona fide intention for carrying out the project. Women should also participate in decision making, as in patriarchal society women are less involved in decision making. They should communicate in the local language. They should respect and acknowledge the culture and tradition of indigenous people. A trust relationship should be present. Every week a monitory session should be conducted by the manager so that a proper management is maintained and the indigenous people should be asked if at all they are facing any type of problem during the previously conducted session of development. The government should keep an eye on the project so that indigenous people rights are not violated. The government should encourage the community to participate in the project by questioning queries on any type of inconvenience caused to them. The government should make sure that indigenous people don’t be impeded by development by their own actions.
       In 2013, Supreme Court of India gave judgment on Bauxite Mining in the State of Odisha (Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 476). Supreme Court of India by referring to the ILO Convention 169 and UNDRIP, imposed a temporary stop of mining work by Vedanta/Sterlite Ltd. in the Niyamgiri Hills of Odisha. Supreme Court of India left on the hand of the local community to decide whether or not they want to mine and ordered the State government to organize Gram Sabhas under The Schedule Tribes and the Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006. As a result, 12 Gram Sabhas were organized. In 2013, all 12 Gram Sabha rejected Vedanta’s proposed mining activity in the Niyamgiri Hills. Further, they stated that “Our culture, tradition, identity and religious belief is more important than development.”
     The principle of Free, Prior and Informed Consent (FPIC) has come up as a lifeline for Indigenous People. It has resulted in less violation of human rights. Consent is the major requirement of FPIC. FPIC has been a very developing phenomenon as there is the highest participation by locals in taking up any decision. Rejection of any project is also respected. FPIC is now recognized by International Law as well as Domestic Law to protect and respect the rights of Indigenous people.  

ABOUT THE AUTHOR

 

Ishan Singh is a Third-Year law student at Ramaiah Institute of Legal Studies, Bangalore. He was a former Legal Intern at Amnesty International, India. He has a keen interest in “Human Rights Law”, “International Law” and “Air & Space Law”. He wants to work for the codification of domestic legislation on Refugee Law and Space Law in India.

In Content Picture Credit: IPS News 

 

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