*Anna Motoc, WGIP expert

Here you have the result of a joint project with Tebtebba Foundation. I think again this is a sort of first in the Working Group in the same lines as what Yokota did with the Saami. The paper refers to the concept of consent and the need for free, prior and informed consent for Indigenous Peoples. We sought first to see what the international instruments were and what norms showed this principle then we tried to come up with a definition of the concept to create a legal commentary.

When speaking about international instruments, we looked at ILO Convention 169 that refers to this principle of Indigenous Peoples relationship to land. It is also in the DDRIP which explicitly recognizes the principle. With respect to the draft declaration on this principle, there aren’t sufficient concrete elements to apply free, prior and informed consent on site. We are talking about making the concept operational. The ICERD but also ICESCR have recognized the principle and in particular the principle of the last one. Exploitation of natural resources, Indigenous Peoples have only been consulted once the lands have been occupied by multinational corporations. At the international and regional level, there is work. Looking at the IACHR and also the African looking at the Ogoni case in 2002. Another important element for the sub-commission is the commentary on the norms of transnational corporations (TNC), which recognizes the principle of free, prior, and informed consent in relation to local communities affected by TNCs. So from the conceptual point of view, the principle is covered by the right of self-determination and the relationship between Indigenous Peoples and their natural resources.

The principle of free prior and informed consent make up the relationship that provide the authority. Apart from these international and regional instruments there are international agencies, which have begun work on site recognizing the principle of free, prior and informed consent. Here we can recognize the Convention on Bio-Diversity to set up a Working Group to see how traditional knowledge should be recognized. There is also the Inter-American Development Bank that takes into account the principle. There have also been seminars that go into detail to see what exactly what elements of the principles should be specifically addressed. There have been situation in Australia where 5 states have been adopted as well as in the Philippines, all these international and regional instruments. It is very important that their be measures to show that consent has not been obtained. Consent must be coordinated in advance of any authorization. Third parties should seek consent in advance so Indigenous Peoples can consult in advance. It can be useful for Indigenous Peoples. This passage of time should make sure that consent is free and given in advance. Consent must be informed because details that are quiet on nature, size and scope also exact information on duration of this activity, the locality of areas also information on the impact of the development and the reasons and purpose for the development also information on specific procedures and petitions for third party involvement. Indigenous communities need to have an exact view of the project before it is adopted.

Having looked at the terms, the definition of consent would mean that Indigenous Peoples must be involved in all aspects of the planning from the beginning to the end and in all stages there must be consultation. Indigenous Peoples must be consulted and the participation must be continuous. These are the others necessary to have a picture of consent. All those specific elements are necessary for a legal commentary that could be done for next year. I will conclude here to explain legislation in the Philippines and also how the World Bank is using the principles for free, prior and informed consent.

*Jocelyn, Tebtebba Foundation

I would also like to appreciate where expert collaborates with indigenous peoples. Tebtebba has been working on this issue for a long time. It has been adopted in domestic law in a number of countries. It applies to mining in Australia for mining. It can also be found in a number of other states. In 1999, it found out it was successful in obtaining land. Aboriginal land was protected. The land was made available in 1991 in the Northern Territory it produced 80 percent of the total values of the mineral production.

It is often said that free, prior and informed consent will stop development. This is not true. In Canada and Australia, there is a respectful partnership. In the Philippines, the law passed came into effect in 1997. In fact, if we look at the history, the concept of free, prior and informed consent came into effect in relation to access to researchers and biological resources. In 1995, the mining act required free, prior and informed consent. In 1996, the mining and forestry rules were passed. Free, prior and informed consent is required for all activity. For research and bio-prospecting under law 263 and also for military to enter indigenous territory. The government has taken this as a comprehensive law. What has been the result of that experience? This is doable. Free, prior and informed consent can be done. In the governments where it is happening, it is doable. There are many examples where memorandums of agreement have taken place. When developers have not given sufficient information they are not prepared. Coercion also takes place. Communities have thus withheld consent.

When do you start to obtain free, prior and informed consent? It has to be given as soon as possible. Of the bodies that have done detailed work was the World Commission on Dams. We commissioned on the national and international level. There are several states where community has to be involved. There are parts of the process that have to be given.

It is good to do a policy review of the laws that already exist. One can see the areas where the cooperation can take place; the asserting of the needs that must be addressed. Because based on the understanding of the needs, there are detailed assessment studies of environment and cultural studies to see the impact. They must be participatory and not only academic. When an actual project is put forward, it is necessary to talk to a community to see where their views may be seen. When the agreement is reached, there must be follow-up. I do support the proposal to have a legal instrument. It is currently discussed under the World Bank in extractive and policy that will be decided in the upcoming months. It is good for the WG to develop guidelines to make it more operational. On that basis, I want to welcome the work of the Working Group on this topic.

* Francoise Hampson, WGIP expert

I should like to congratulate the report and welcome the collaborative report. I hope the oral comments of Tebtebba will be available in writing. Free prior and informed consent is substance and a process. For consent to be free, the process must be transparent. The concept of transparency can be included in report. Either there needs to be two assessments or the identification needs to take into account elements.

The indigenous group attaches great significance in something that doesn’t get addressed in Environmental Impact Statement. Does it mean a first report or an impact assessment report? The impact assessment should address short, medium and long term. It may be worth considering whether two impact statements. The group should receive the necessary expertise. It is up to the state to make these resources available. In regard to consent, in regard to consultation and consent: Consultation is not a substitute for consent. Consent is substance not form. It also includes the right to say no.

Clearly in many situation, the knowledge that an indigenous group is required to give consent for those to make it more attractive to an indigenous group so there is improved communication. Tebtebba said there is more respectful cooperation when there is cooperation. It must be on the condition that consent is required. Cooperation comes after consent. It would be helpful if commentary helps. Such evidence of particular agreement reassure parties that what is proposed is doable but also identify elements of good practices. The concept of free prior and informed consent. One is required before medicinal. It might be useful to show state domestic and international practice. I agree with two points included in the report with greater emphasis. If either the proposed action, then new consent must be obtained and the second point is that consent can be qualified consent with conditions attached. They can be expressly made. I hope there will be guidelines and I hope that in addition to guidelines there will be examples of good practices. There could even be memorandum of agreements that could be included that could be a good first draft of guidelines.

Mikhail Todyshev, Russian Association of Indigenous Peoples (RAIPON)

The principle of free prior and informed consent must be recognized and applied before a state adopts a management decision that affects indigenous peoples. Concerning the exploitation of land and natural resources, we support the idea of a legal commentary. Both from governments and treaty bodies particularly the free prior and informed consent and Special Rapporteur. On the federal and regional level of the Russian federation it would be important. The rights of a new international standard then indigenous people of Russia could apply this norm. International treaties are integral part of the Russian legal system. Then the international treaty shall prevail. We should see more detail on the procedure. Some formalization of this process will make it easier for governments to adopt it more quickly. We suggest another international instrument adopted in annex of Convention on Bio-Diversity. It could be voluntary principles for the assessment of Convention on water bodies. This is referred to in decision of the conference of participants. Hassam Idbalkass, IPACC

IPACC would like to acknowledge the fine work of the UNWGIP during this past Decade. You have created a platform for Africa's most marginalized and vulnerable peoples to come and express their earnest request to survive, to be recognized, and to be part of the world family. You have broadened the awareness of the concept of human rights and dignity in Africa. For this, we are deeply grateful.

As has been often stated, Africa is the cradle of humankind. We have the greatest human genetic diversity on the planet, and one third of the world's languages. Throughout the continent there are pockets of surviving indigenous cultures, some still managing to hold onto their heritages of hunting-gathering and nomadic pastoralism.

At the end of this decade, we would like to make the following suggestions to the expert working group and the Office of the High Commissioner on Human Rights: 1. We encourage the OHCHR and the UNWGIP to increase the effectiveness of their engagement with the indigenous peoples of Africa. This Decade has started a process which must still be Nurtured. 2. We recommend that the OHCHR and UNWGIP stimulate research on the constitutional and juridical basis of identifying indigenous peoples in Africa, notably studying the legacy of French, British, German, Portuguese and Spanish colonization on the contemporary situation and human rights of nomadic and transhumant peoples 3. We encourage the OHCHR and UNWGIP to explore ways of reviewing the progression of human and civil rights for indigenous peoples in Africa, notably in co-operation with the African Commission on Human and Peoples Rights, national Human Rights Commissions and NGOs, including our regional representative structure, IPACC 4. We specifically ask the UNWGIP to appoint one of its respected expert members to provide the UN with a summary of the indigenous peoples human and civil rights on the African continent during the Decade 5. We encourage the OHCHR and UNWGIP to look for forums on the African continents where vulnerable indigenous communities have an opportunity to concerns about their human and civil rights.

Estebancio Castro Diaz, International Indian Treaty Council

A nombre de mi organizacion, el Consejo Internacional de Tratados Indios me complace felicitar a la Sra. Motoc y a la Fundacion Tebtebba por la presentacion de su documento sobre Libre Consentimiento Previo e Informado y de igual manera, aprecia sus comentarios en el documento presentado. Sin embargo, me parece que es importante que el documento dedique una parte sobre la necesidad de respetar los tratados celebrados entre los Estados y los Pueblos Indigenas, las cuales han sido violadas por parte de los Estados sin el Consentimiento previo e informado de los Pueblos Indigenas. De esta manera, debemos tomar en cuenta las estructuras politicas, economicas y culturales existentes en las comunidades de los pueblos Indigenas. Debemos entender que muchos pueblos indigenas contamos con tratados, acuerdos, convenios y resoluciones oficiales, las cuales, deben ser respetadas por parte no indigena. Es necesario entender que el libre Consentimiento previo e informado necesita ser implementado. Se debe entender que el Consentimiento previo e informado tambien se refiere a la toma de desicion de los Pueblos Indigenas en los asuntos que les afecte. Porque con el previo Consentimiento e informado los pueblos afectados tienen el derecho a evaluar los pros y contras de cualquier plan conserniente a ellos. El relator especial sobre Tratados, convenios y otros Acuerdos constructivos entre los Estados y los Pueblos Indigenas concluye que estos instrumentos, tratados entre los Estados y los Pueblos Indigenas, continua hasta el dia de hoy manteniendo sus estatus original y son de origen de obligacion internacional que incumbe a las partes. El relator especial tambien noto que los Estados han constantemente violado, ignorado y abusado sus obligaciones con tratados sagrados sin ninguna impunidad. Es claro que los mecanismos establecidos unilateralmente por los Estados para adjudicar las violaciones de tratados y es contradictorio que una parte sea solo el mediador de la disputa. Los Pueblos Indigenas somos parte de los tratados pero no tenemos un foro donde dirigir nuestras demandas de las violaciones de los tratados. La base fundamental de las violaciones de los tratados esta en el asunto de control y el derecho sobre la tierra y sus recursos. Sin embargo, las normas internacionales establecidos y normas de derechos humanos por establecerse, por ejempio, la Declaracion de las Naciones Unidas sobre los derechos de los Pueblos Indigenas directamente o indirectamente toca la materia de los tratados, Acuerdos y el dereho a la tierra en una forma amplia, afirmando los derechos de los Pueblos Indigenas. En conclusion, el organo de tratados para monitear la Convencion sobre la Eliminacion de todas las formas de Discriminacion Racial, la CERD tambien ha adoptado en sus vigesimo tercera comentarios generales sobre los derechos de los Pueblos Indigenas a su tierra y sus recursos naturales. La CERD puede requerir a los Estados, donde los Pueblos Indigenas « han sido despojador de sus tierras y territorios tradicionalmente ocupado or usado sin su Consentimiento libre e informado, de tomar pasos necesarios para regresar estas tierras y territorios a los Pueblos Indigenas ». Mi organizacion el Consejo Internacional de Tratados Indios (IITC) recomienda que el Grupo de trabajos sobre las Poblaciones Indigenas recomiende el establecimiento de un organo internacional o un mecanismo donde los Pueblos Indigenas demanden quejas originadas de los tratados y Acuerdos constructivos sin su libre Consentimiento Previo e Informado.

Ronald Barnes, Indigenous Peoples Nations and Coalitions

"Consent" is a big word in international law. This makes a difference on whether a State is properly annexed or whether or not a State can legitimately claim title and dominion to an internationally recognized peoples and their territory. Many times in the Article 73 decolonization process Administering States had to re-enlist territories that did not consent to annexation. This also meant that it could not invoke the territorial integrity principle nor the non-interference principle. Thus a "territorial dispute" ensues. This territorial dispute determines whether or not the Administering state can use domestic law to settle the sovereignty dispute between it and the territory and its peoples in question. Further, the State cannot use its own legal process or order to so much as designate who is representative or not. In the intervention on Conflict -Resolution my delegation made it clear that the issue of consent is on representation of the Indigenous source of authority is valid whether traditional or hereditary.

I am happy to see that consent is not valid if obtained through coercion or manipulation. If a State of Peoples has been historically recognized as independent, international law recognized that the party concerned has the right to assert its status "whether recognized or not" and continue to deny that it is properly annexed. The Indigenous Peoples of Alaska have never consented to annexation by the United States of America. We have made it clear and it has been recorded in summary records or continuing diplomatic protests against the United States of America and to the United Nations for expropriation of property in violation of international law. The level of recognition requires that due process regarding the fully informed consent principle be exercised without limitation of the international status of the parties by the occupying State.

Bear in mind the question that was presented to the International Court of Justice in the Western Sahara case of whether or not each state has acquired a level of ownership so that State can claim acquisition of title and therefore the right to govern. Of course the ICJ determined that no state had actually acquired control in the case of the Western Sahara territory so the United Nations proceeded to decolonize under that premise that the full sovereignty was preserved for the Indigenous Peoples of Western Sahara. I will also point out that there is no distinction on the use of the term people, peoples, populations or inhabitants to determine the level of recognition of the Indigenous Peoples if you are recognized as a subject of international outside the jurisdiction of the State that is where you sit. Leave all semantics and polemics aside. The buck stops there. In this regard, the level of historical relationship with the State must be considered carefully, including whether or not Indigenous Peoples have ceded their territory lawfully. This includes an examination of the process of domestication of subjects of international law by a State that utilizes only its own domestic law, in total disregard for its international obligations in an attempt to unilaterally erase the international legal status of certain Indigenous People. An examination of this question will also assist in determining whether domestic law applies to indigenous subjects of international law. I support the International Indian Treaty Council that Treaties must be addressed on the consent issue. This includes the analysis of treaties that were historically signed to determine the application or non-application of whether or not a State can apply its own law unilaterally.

The question of who consented for territorial encroachment and what process was utilized are important factors in determining if consent actually occurred. This is vitally important when the question arises as to who consented to the cessation of territory that belongs to Indigenous Peoples.

The international standards that have been set must be examined to determine how we can apply the factors and principles in cases where Indigenous Peoples are clearly subjects of international law. Indigenous Peoples and Nations Coalition and Indigenous World Association will make contributions in the future on this subject constructively to add to the debate.

Contact: INDIGENOUS PEOPLES AND NATIONS COALITION Nutemlarkun Yuulriit Calistait Teinaa Gey Tlingit Nation P. 0. Box 111 Dillingham, Alaska 99576 E-mail rfbipnc@hotmail. corn

Maria Eugenia Choque, Viceministra de politicas indigenas y tierras altas, Government of Bolivia

Antes que nada quiero excusar el retraso con el que procedere a mi intervencion ya que debido a motivos ajenos a mi voluntad tuve que retrasar mi llegada a Ginebra y mi participacion en este Grupo de Trabajo Quiero expresar mi total apoyo a la continuacion del excelente trabajo que viene realizando el Gmpo de Trabajo sobre Poblaciones Indigenas, que en los hechos, es el unico Foro que permite que las reivindicaciones, demandas y los testimonios de los Pueblos Indigenas del mundo entero sean escuchados. A continuacion solicito la indulgencia del Presidente para poder tratar conjuntamente los temas 5a y 5b de la Agenda, ya que durante las reuniones de coordinacion con las diferentes instancias de gobiemo de mi pais se trataron ambos como un solo tema. Deseo senalar que para mi delegacion es importante la continuacion de los esmerzos sobre principios y directrices para la proteccion del patrimonio de los Pueblos Indigenas, en particular en lo que se refiere a la defensa y preservacion de la biodiversidad, los conocimientos tradicionales, los recursos geneticos y la cultura. Temas a los cuales mi pals concede la mas mayor importancia. En este marco, Bolivia ha sancionado varios instrumentos legales para la proteccion y defensa del patrimonio de los Pueblos Indigenas. Asi, por ejempio, el Nuevo Codigo de Procedimiento Penal que me promulgado mediante Ley ?1970 de 25 de marzo de 1999, en sus articulos 10, 29, 111, 113, 115 y 391 se refleren, respectivamente a cuestiones de Interpretacion; Justicia Comunitaria; Idioma; Audiencia; Interrogatorio y Diversidad Cultural. Otro mecanismo es el Consejo Consultivo de los Pueblos Indigenas, que me creado a traves del Decreto Supremo N° 25203 del 21 de octubre de 1998. El mismo, se encarga de concertar politicas referidas a los derechos sociales, economicos, y culturales de los Pueblos Indigenas; recomendar medidas encaminadas a superar la discriminacion y promover acetones estrategicas para la proteccion y conservacion del patrimonio historico, cultural y natural de los Pueblos Indigenas. El ultimo, instrumento legal que citare sera el Decreto Supremo N° 26151 de 12 de abril de 2001, por el cual se crea el Servicio de Asistencia Juridica a los Pueblos Indigenas y Originarios (SAJPIO), cuyo principal objetivo es el de prestar asistencia juridica y tecnica durante el proceso de vigilancia de los derechos colectivos de los pueblos indigenas. Sin embargo y a pesar de estos esmerzos, mi pais al igual que otros paises presentes se enfrentan ami a graves peligros de biopirateria y apropiacion indebida de conocimientos tradicionales y del patrimonio intangible de los pueblos indigenas presentes en nuestro territorio. Es por esto, que mi delegacion considera de la mas alta prioridad que se llegue a un acuerdo, a la brevedad posible, para el establecimiento de un instrumento multilateral, juridicamente vinculante que asegure la proteccion y la defensa de los derechos colectivos de estos recursos, para establecer las bases de una seguridad juridica a nivel intemacional, tanto para los pueblos indigenas afectados como para los Estados en los que residen. Quiero reiterar en esta ocasion, el mas firme compromiso de mi pais, para lograr este resultado y apelo a la comunidad intemacional presente a sumarse a este esmerzo de la mas alta importancia para los Pueblos Indigenas y para Bolivia. En este sentido el Convenio sobre Diversidad Biologica nos parece como uno de los Foros mas apropiados para consensuar una solucion justa y equitativa a los temas mencionados que son de preocupacion para mi delegacion. En cualquier caso, los temas de divulgacion de la mente y del pais de origen asi como el acceso y la distribucion de beneficios y, en particular, el consentimiento libre, previo y mndamentado de los Pueblos Indigenas, debe figurar como temas prioritarios del mturo instrumento vinculante a nivel intemacional. Por ultimo Seiior Presidente, permitame felicitar a este Gmpo de Trabajo, por la iniciativa que ha mostrado en estos temas y solicitarle continuar con esta labor desde un enfoque de derechos humanos y en particular los derechos de los pueblos indigenas.

Geoff Nettleton, Philippine Indigenous Peoples Links

Philippine Indigenous Peoples Links warmly welcomes the working paper on Free Prior and Informed Consent (FPIC). Through it the working group is providing timely leadership in this important area, and welcome innovation in methods of working. • We urge that the working group continue in similar ways to draft a full legal commentary on FPIC • We recommend that the Working Group, and others, actively promote the current paper, especially within the UN system. • We further recommend to the Working Group and to indigenous organizations, NGOs, UN agencies, that coordinated and innovative approaches are necessary to actively monitor the implementation of FPIC and consultative processes that are too often in practice vehicles for abuse of the very principles they seem to promote. • We recommend that a proposed workshop on the relationship between Indigenous Peoples and the Private Sector on Extractive Industries note this paper and consider indigenous and industry views on experience and standards of FPIC. This paper of Mrs. Motoc responds to a strong demand for elucidation of the principle of FPIC and can assist in dispelling some ignorance fuelled by willful misrepresentation on the issue. A recent effort to examine FPIC practice within the UN system, prepared by UNDP for the Permanent Forum on Indigenous Affairs, revealed that while several UN agencies were open to respect for indigenous peoples right to FPIC and thought they were already applying it, in fact they did not share a definition of FPIC nor an understanding of its difference from consultation. The World Bank in its management response to the call of the Extractive Industries Review (EIR) for the application of FPIC by the creates the consciously misleading formulation of Free Prior and Informed Consultation. This play on words is an unhelpful and irresponsible action. The paper makes clear the principles and the specific elements of an FPIC regime. However it is our experience that even in the Philippines - where FPIC is already a legal requirement - that most indigenous peoples cannot in practice exercise their right to FPIC. A recent legal workshop, organized by concerned groups, revealed that Indigenous Peoples are frequently victims of a pattern of tricks, mis-reporting, misrepresentations, resort to bribery, coercion and force by corporations with vested interests often supported by government officials, foreign embassy pressures, and certainly supported by the liberalized pattern of freedom for corporations promoted by the World Bank and others. In the mining sector in the Philippines companies like TVI Pacific, Crew Minerals both from Canada and others claim they have gained FPIC when the legitimate representatives of the affected communities firmly deny that it was given. In the case of TVI, where there is strong opposition to the company from indigenous Subanon organizations, local government and others, the company assisted by government officials of the National Commission on Indigenous Peoples has recognized and promoted a schism in the community organization and pushed ahead with its project despite strong opposition. Other examples of such abuses will be examined in a forthcoming report to be published by Philippine Indigenous Peoples Links and Christian Aid on mining in the Philippines. A table listing some types of abuses in the Philippines is submitted with this report.

We have to ensure that the meaning and usefulness of FPIC is not eroded and captured by those who have no commitment to indigenous peoples rights. The paper of Mrs. Motoc can contribute much in this regard.

Chair it is clear that if indigenous peoples are to make informed decisions on proposed interventions in their lands they need access to at least some information that is independent of corporate propaganda. Mr. Chairman, in order for such consent to be given it must be informed, and how can it be so if the only source of information is from the proposing company itself. We see in the Philippines that FPIC without minimum standards becomes another vehicle for company propaganda. It is therefore a legitimate demand that corporations that wish to operate on indigenous lands should contribute funds to facilitate FPIC processes. However it is unacceptable that corporations and agencies with vested interests in promoting mining and other interventions should control and define the information process, as is the current practice in the Philippines where mining companies sometimes organize 'all expenses paid' trips to selected mines. This is unacceptable practice. Currently access to adequate independent information can only be achieved if respected independent agencies are prepared to commit resources and funds. They should note this is much needed.

*El-Hadji Guissé, WGIP Expert

I take the floor in order to briefly give support to the work of my colleague for this very important initiative. I’d like to say that it is quite a sensitive measure as it deals with the consent of the Indigenous Peoples of matters that concern them. We are also dealing with other matters when we realize this issue. It is important to see how far consent goes and this consent cannot be of a general nature, because general consent means that it is open to all activities of society. This consent I believe cannot be given for the entire life of a issue. It should be given for a specific given time. It is a permanent and definitive transfer to Indigenous Peoples. It should be limited in time and in scope. It will lead us to another very specific problem of sovereignty of states. We need to find a balance between the will and sovereignty of states and will of Indigenous Peoples. This balance requires that it is carried out. It should be a study of not only our working group, but should be able to debate at all areas of the UN system. Every time we face the issue of sovereignty, we face the sovereignty of Indigenous Peoples. I’d like to thank my colleagues in order to make analysis on basis of principles of what I am studying. I believe the document will receive full support especially of the working group and NGOs. It is a difficult matter, but must be done for Indigenous Peoples and states.

I am a tribal leader. I am hear as a representative of our organization. I wish to speak on a serious matter on prior consent on examined on Mrs. Motoc’s paper. Mr. Chairman, if Indigenous Peoples right to ethic it is vital that 20 % of our people are violated. It is with sadness that I have many examples of violations of ethic. We have been concerned to see outside process dividing our community. Therefore, met at the tribal court. We conceded our testimony. From outside to serve outside interest. We rule that many of those are not of the area, and therefore have no legal rights to be representatives. We therefore rule that any and all arguments by the council of members were ruled null and void. Finally, we are concerned that the vision of these one people has brought grief and destruction so we have required a cleansing ceremony to be formed. We can restore harmony by the community.

Noval Lambo, Gokum nog pitu kobogolalan sog pitu Kodolungan

I wish to speak on a serious matter related to free prior informed consent (FPIC) as examined in Mrs. Motoc's paper. We believe this matter gives important lessons on the danger of misrepresentation of FPIC, which can make a mockery of our indigenous processes and rights.

Chairperson, if indigenous peoples right to FPIC is to be genuinely respected it is vital that those who claim to represent our peoples are validated and legitimate in the eyes of their co-tribes people and especially in the eyes of the elders who guard our traditions. It is with sadness that I report in the Philippines we have jwonri many examples of the undermining and misapplication of FPIC. I will report on one important case of grave concern to us that reveal many general issues.

We as Subanon elders have been concerned to see outside forces dividing the Subanon community of Canatuan to serve the interests of a foreign Canadian mining company, TVI.

Therefore between 2 and 6 February 2004 we elders from different communities met as the Gokum (or tribal court) to consider the conflicting claims for leadership in Canatuan, which is one of our communities and is also rich in minerals. The Indigenous Peoples Rights Act in the Philippines promises us we have the right to adjudicate such matters.

We considered over 4 days testimony and genealogy of the different claimants. Our main topic was to decide the legitimacy of a so called Council of Elders of Canatuan created in 2002 by the National Commission for Indigenous Peoples (NCIP) which is claimed has given free prior informed consent to mining on Mount Canatuan.

After deliberation we ruled that the Council of Elders of Canatuan was not a legitimate traditional structure and that it was imposed from outside to serve outside vested interests.

We ruled that many of those included in the so-called council of elders are not of the clan and blood of our ancestor Manglang, and not even originating from the Canatuan area. And therefore had no claim to be representatives of the Canatuan people.

We confirmed that the traditional council headed by Timuay Jose Anoy are legitimate representatives of their people contrary to much propaganda from the mining company. We therefore ruled that any and all agreements entered into by the council of elders or some members of that Council were ruled null and void. We imposed a fine of 1 bulos on each of those involved in the creation of a false body and misrepresentation of local structures of leadership.

Mr. Chairman we will submit to you a copy of our names and judgement. Finally we are concerned that the division in Canatuan has brought grief and a destruction of harmony which we call 'topu'. Local People have been killed and injured over some years so we have required a cleansing ceremony to be performed. We hope in this way to restore harmony in the community and protect our sacred area from destruction by mining.

Les Malezer, FAIRA

The 1993 Vienna World Conference on Human Rights recommended that States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization;

In doing so, the World Conference urged States to ensure the full and free participation of Indigenous Peoples in all aspects of society, in particular in matters of concern to them. This call was repeated at the World Conference on Racism in Year 2000, when the Durban Declaration urged States to guarantee Indigenous Peoples the exercise of their human rights and fundamental freedoms on the basis of equality, non-discrimination and full and free participation in all areas of society, in particular in matters affecting or concerning their interests;

The General Assembly has affirmed this principle in establishing that an objective of the Decade is the promotion and protection of the rights of Indigenous Peoples and their empowerment to make choices which enable them to retain their cultural identity while participating in political, economic and social life, with full respect for their cultural values, languages, traditions and forms of social organization;

The General Assembly called upon the States to seek means, in consultation with Indigenous Peoples, of giving Indigenous Peoples greater responsibility for their own affairs and an effective voice in decisions on matters that affect them:

The meaning of 'participation' and 'responsibility' was clearly articulated by the Committee on the Elimination of All Forms of Racial Discrimination (CERD) in 1997. In considering the rights of Indigenous Peoples under the International Convention on the Elimination of All Forms of Racial Discrimination, CERD has called upon State parties to ensure that members of Indigenous Peoples have equal rights in respect of effective participation in public life and to ensure that no decisions directly relating to Indigenous Peoples' rights and interests are taken without their informed consent;

In formulating that recommendation the Committee took account of the continued discrimination against the Indigenous Peoples: The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized. [CERD General Recommendation XXIII, 1997.

In 1973 the Government of Australia appointed Justice Woodward to hold a Commission of Inquiry into appropriate ways to recognize Aboriginal land rights. Justice Woodward reported that the aims of land rights were the doing of simple justice to a people who have been deprived of their land without their consent and without compensation. He recommended that these aims could be best achieved by preserving and strengthening all Aboriginal interests in land and rights over land, and ensuring that none of these interests or rights are further whittled away without consent. In reaching these conclusions he had taken full account of the arguments put forward by vested interests who opposed the granting of land rights, prominently the mining and resources industry. He said 'I believe that to deny Aborigines the right to prevent mining on their land is to deny the reality of their land rights.'

Woodward insisted that mining and other development on Aboriginal land should proceed only with the consent of the Aboriginal landowners. Woodward considered that the right to withhold consent might be over-ridden by the government if the national interest required it, but he specifically said that such an issue 'would not be determined on a mere balance of convenience or desirability but only a matter of necessity'.

Under government legislation the responsibility for protection of the land rights of traditional owners in the Northern Territory is vested in three regional land councils. Under law the Land Councils must ensure that the right of traditional owners to control access to Aboriginal land is maintained and that native title rights and interests are enhanced and protected:

The Land Councils must ensure that Aboriginal people are fully informed and empowered to take control of decisions regarding exploration and mining on their lands or waters.

The overriding statutory obligation on the land councils to consult traditional owners, and act on their instructions, on the basis of group consent, ensures absolute validity of traditional landowners' prior and informed consent.

Further evidence of the consciousness of the government of Australia of the human rights standards applying to the freedoms of the Aboriginal Peoples and Torres Strait Islander Peoples in Australia lies in the legislation enacted in 1999 for a national Indigenous commission. The first objective of the Aboriginal and Torres Strait Islander Commission Act is (in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society) to ensure MAXIMUM PARTICIPATION of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them.

Mr. Chairman, we call upon the Working Group, the Sub-Commission on the Promotion and Protection of Human Rights and the Commission on Human Rights to affirm the right of Indigenous Peoples to free, prior and informed consent, and call upon States to ensure that this right is embodied in national constitutions and statutory law.

Contact: FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION PO Box 8402. Woolloongabba. Old. 4102. AUSTRALIA Telephone: +61 7 33914677; Facsimile: +61 7 33914551 [email protected]

Joan Carling, Cordillera Peoples Alliance

The provision for the Free, Informed and Prior Consent is part of the Indigenous Peoples Rights Act (IPRA), which was passed in 1997. We have then gained experiences as to how this guideline is being implemented in the Philippines. I would like to present some constructive suggestions and recommendations as further elaboration to free prior and informed consent (FPIC) based from our own experience.

1. The scope of FPIC: In principle, all IP communities to be affected by any project are entitled to FPIC. However, impacts of certain projects can only be felt after several years. For example, the impact of large dams to upstream communities and of mining operations to downstream communities of mine tailings disposal system. This has been the case in the Cordillera, yet the implementation of FPIC to these affected communities has been problematic. Thus, it is very important to have a thorough independent evaluation of the potential impacts of projects, both at the short term and long term, in order to also define the scope of FPIC. There should be no discrimination between directly and indirectly affected communities, but all should be considered as legitimate stakeholders, entitled to FPIC.

2. On the principle of "FREE" The mechanism for the operationalization of this principle should allow an independent process as defined by the affected indigenous communities to include their own methods of decision making, both traditional and modern. There should be no interference from the project proponent in the conduct of the affected communities decision-making processes.

3. On the principle of "INFORMED": The operationalization of this principle should include a process of verification or use of independent studies if there are controversial issues on the potential impacts of projects and a process to resolve these controversial issues. It should be not that while information on a project should come from the project proponent, it usually does not elaborate on potential adverse impacts and gives emphasis to so-called economic gains but not on socio-cultural and strategic implications. It is therefore important for affected communities to be given access to information, not only from the project proponent, but also from other sources. Unless all necessary and relevant information requested by affected communities is provided, and at the level of their understanding, the process for giving CONSENT should be deferred if communities so desire.

4. On the Principle of CONSENT: The operationalization of this principle under the Indigenous Peoples Rights Act (IPRA) states that any disagreement from within the affected community, even a minority, will not qualify the project to have the consent of affected communities. Thus, consent is thereby a matter of consensus and if there are unresolved issues to certain members of the community in relation to any project, then these need to be addressed and resolve before a certification for CONSENT is issued. Finally I wish to underscore that the FPIC process should not be reduced to technical and prescriptive terms. For example, a definitive period of two months for the FPIC process, such as in the Philippines is deplorable. Likewise, while the cost for acquiring FPIC should be the obligation of the project proponent, this should be based on the actual need for consultations, information and independent process of decision-making.

To conclude, the operationalization of the FPIC should ensure the substance of these principles in accordance with the right of indigenous peoples to self determination and participation in any decision making processes, and not on mere technical and mechanical procedures.

Willie Littlechild, International Organization of Indigenous Resource Development (IOIRD)

First, we are very encouraged by the references to the important contribution of the U.N. Workshop on Indigenous Peoples, Private Sector, Natural Resources, Energy and Milling Companies and Human Rights (E/CN,4/Sub.2/AC.4/2002/3) that was held in Geneva from 5 to 7 December 2001. We believe that consent mutual consent is a very fundamental element of Treaty making according to our Elders' oral testimony. We also note that this is supported by domestic and international law. Therefore our delegation respectfully urges the addition of a specific reference in the, elaboration of a legal commentary, the element of mutual consent in Treaty making. As we understand it, for example, one party to Treaty cannot unilaterally change the terms of Treaty, that amendment requires the mutual consent of both partners. Where one breaches or unilaterally violates Treaty terms, then we have conflict as illustrated under agenda item 4(b).

Secondly, we note document E/C19/2004/11 generally distributed to the Third Session of the U.N. Permanent Forum on Indigenous Issues titled:" Inter-Agency Support Group on Indigenous Issues; report on free, prior and informed consent". We suggest its consideration as well in drafting a legal commentary. Finally, it would also be important, in our view, to consider the Indigenous Peoples definition in our languages when considering the elements for the elaboration of a legal commentary.

Contact: Council Energy Resources Tribes (US Office) 695 South Colorado Blvd.—Suite 10 Denver, Colorado 80246 Tel (303) 282-7576 Fax (303) 282-7584

Four Nations of Hobberma (Canada Office) Box 370 Hobbema, Alberta TOC1NO Tel (780) 585-3038 Fax (780) 585-2025

Mattias Ahrem, Inuit Circumpolar Conference-Saami Council

Our organizations have been very concerned with institutions such as the World Bank Group trying to dilute the concept of free, prior and informed consent in recent processes such as the Extractive Industry Review and the review of the Indigenous Peoples Policy, e.g. wanting to transform the right of free, prior and informed consent to free, prior and informed consultations. The World Bank Group and others often motivates such lowering of the standard on the right to free, prior and informed consent with suggestions that the concept of PIC is unclear. We agree that there is a need to further examine what is more exactly the content of the right of free, prior and informed consent, as also elaborated upon by Ms. Motoc and the Tebtebba Foundation in their Working Paper.

However, the Inuit Circumpolar Conference and the Saami Council think that the authors in a very good way have essentially captured the meaning of PIC in paragraph, 13 in the Working Paper, stating that substantially, PIC recognizes indigenous peoples right to require that third parties entering into indigenous land do so only after having established respectful relationship with those peoples based on their free will and that procedurally, PIC requires the establishment of processes that support the real possibility for indigenous peoples to decide their development path. We believe that a more concrete definition of PIC can be arrived on if starting from this basic meaning, and there is no need to rewrite or otherwise dilute the right of free, prior and informed consent. Moreover, as the authors have clearly proven in their Working Paper, the right to free, prior and informed consent is truly a right, and any attempt to deviate from such standards constitutes a violation of international, and, as additionally shown, often also of domestic law.

We concur with the comments made in paragraph 21 of the Working Paper, stressing the relevance of indigenous customary law with regard to consent. It is imperative that any third party seeking consensus from an indigenous people, do so only from the body etc. authorized to give consent under the relevant customary legal system of that people. We believe that a thorough understanding of the relevance of customary law is important not only for the safe-guarding of indigenous rights. Such an understanding can also mitigate fears sometimes raised that a right to free, prior and informed consent implies a right for any indigenous person to stop every development project etc.

The Inuit Circumpolar Conference and the Saami Council support the recommendations made in paragraphs 30 and 32 of the Working Paper; that the Working Group elaborates upon a legal commentary on free, prior and informed consent, which contains a comprehensive overview of the topic in international human rights law, jurisprudence, national legislation and practices and that the Working Group harmonize efforts to interpret and promote the implementation of free, prior and informed consent in close cooperation with the Permanent Forum and Special Rapporteur.

Catalino Corpuz, Tebtebba Foundation

The indigenous peoples throughout the world continuously aspire for instruments that would advance their recognition and further strengthen their rights as indigenous peoples.

In the Philippines, a law was passed in 1997 that recognizes indigenous peoples rights. This was a clear result of the indigenous peoples' struggles in the country to have their rights recognized. A key provision of the law is on Free, Prior and Informed Consent. This is, undoubtedly, one of the best features of the law. We, in Tebtebba, held a national consultation, which was held in February of this year, to look at the experiences of indigenous peoples in terms of how FPIC is operationalized by the government. Some observations which arose from the consultation are the following;

1. The National Commission on Indigenous Peoples, the government agency tasked to implement the law, has not been very effective in ensuring that free, prior and informed consent is implemented properly. In some cases it even became part of the problem because some commissioners or regional directors have colluded with proponents of development projects to obtain FPIC in a fraudulent manner. There were key NCIP personnel involved in the creation of fake tribal councils from whom certifications of FPIC were obtained. 2. There is still a gap between the indigenous peoples' concept of FPIC and the guidelines made by the NCIP.. For example, on decision making, the law prescribes 10 days for consultation and decision-making which is unacceptable to indigenous peoples. Having such a short-timetable favors corporate interests because substantial information dissemination and consultations cannot be undertaken. This is contrary to the customary and traditional practices of indigenous peoples in terms of consensual decision-making. Most indigenous peoples' communities are very isolated and remote and to have substantial discussions and consultations a month is not even enough. 3. Securing FPIC through fraudulent means come in various forms. One is through misrepresentation such as the creation of fake tribal councils or getting FPIC from those who are not directly affected by the projects. Another way is through the conduct of social and environmental impact analysis in a haphazard manner. The results of such studies are then used to deceive people into thinking that there are no negative impacts. 4. Some government representatives and the proponents of so-called development projects see FPIC just as a requirement and if this is applied to indigenous peoples it is not appreciated as a recognition of indigenous peoples rights. Crucial to FPIC is the community's right to veto development projects when they see that these would destroy them as indigenous peoples and would not benefit at all from these projects.

So while the law is there and guidelines were prepared there is still a long way to go to make this right and principle implemented in a way that truly respects indigenous peoples' rights and integrates indigenous peoples customary laws and practices.

Recommendations:

1. The international community should strengthen further FPIC as a tool by further clarifying its concept. It is very important that indigenous peoples themselves should make a closer look at its concept and make recommendations for its operationalization. 2. That multi-lateral agencies such as the World Bank should enhance, and not to weaken, indigenous peoples rights. 3. That there should be sanctions for the proponents of development projects if they are involved in obtaining FPIC through fraudulent means and if they do follow the right process of obtaining. 4. If there is an FPIC that was already issued, the indigenous peoples have the right to withdraw from an agreement if the conditions agreed upon are not adhered to by other parties. 5. More effective consultations should be done by the Philippine government with indigenous peoples to improve further the guidelines that they have on FPIC so that this will be made more sensitive to indigenous peoples customs, values and norms.

Narin Rai, World Bank

I would like to take this opportunity to make a brief statement on behalf of the World Bank regarding the principle of free, prior and informed consent. This morning Mrs. Antoanella-Iulia Motoc, Independent Expert of the Working Group on Indigenous Populations, together with the Tebtebba Foundation, presented a preliminary working paper on the principle of free, prior and informed consent in relation to development affecting Indigenous Peoples' lands and natural resources. This presentation provided an excellent analysis of the concept of free, prior and informed consent. In the interest of time, please allow me to delve directly into the same theme.

I need not repeat here that for the last 10 years the World Bank has been engaged by the international Indigenous community who have demanded that we recognize the rights of Indigenous Peoples to free, prior and informed consent. In particular, we heard this demand during the preparation of the World Commission on Dams report (completed in 2002), throughout the Extractive Industries Review process (from 2001 to 2003), and in the comments provided during the revision of the draft World Bank Indigenous Peoples policy (2001 - 2004).

We have listened to these demands and I am happy to report that at the same time that the UN Working Group on Indigenous Populations is discussing the principle of free, prior and informed consent, the World Bank is also closely examining the principle as part of its review of the extractive industries sector. As many of you are aware, we have recently undergone an extensive review of our involvement in projects involving oil, gas and mining production, which resulted in the completion of the Extractive Industries Review, or EIR. Led by the honorable Dr. Emil Salim, the EIR was initiated in response to the NGOs' call made during the 2000 Fall Meeting of the World Bank in Prague. The EIR report and the accompanying World Bank Draft Management Response were made available to the public for comments on June 21, 2004. On July 19, 2004, forty-four Indigenous Peoples' organizations from around the world sent a letter to the World Bank's Board of Executive Directors articulating their concerns regarding the EIR and Draft Management Response. We have also received comments from the Equator Banks and the ASEAN ministers of mining among others.

The EIR makes a number of recommendations, including the recommendation to respect the principle of free, prior and informed consent in development projects that affect Indigenous Peoples. As part of their response, World Bank Management has endorsed a fundamental message from the EIR that extractive industries can contribute to sustainable development, but only if projects are implemented well, preserve the rights of affected people, and the benefits they generate are well used. The Draft Management Response specifically recommends the provision of "free, prior, and informed consultation leading to broad community support of any proposed project." The Draft Bank Management Response reads, "The Bank Group will only support extractive industry projects that have the broad support of affected communities. This does not mean a veto power for individuals or any group, but means that the Bank Group requires a process of free, prior and informed consultation with affected communities that leads to broad acceptance by the affected community of the project' Simply stated, the World Bank will not proceed with project financing without the clear demonstration of broad community support. In an effort to provide additional information to Indigenous leaders, the World Bank organized a side event during this working Group session, which was held yesterday, on the "Review of World Bank Role in Extractive Industries."

It should be noted that the number of World Bank projects in the extractive industries sector declined coinciding with the establishment of the first World Bank policy on Indigenous Peoples in 1982. The project reviews, which were completed in conjunction with the EIR process, confirm this. In fact, at the Oxford Workshop organized by the Forest Peoples Programme and the Tebtebba Foundation in 2003, the case studies presented clearly concluded that the World Bank is financing very few projects in the extractive industries sector that affect Indigenous Peoples.

These data are helpful to inform Indigenous leaders that today the World Bank does not finance many extractive industry projects, which directly affect Indigenous Peoples. The World Bank's Board of Executive Directors is scheduled to discuss the EIR report, the Draft Management Response, and the comments received at their upcoming meeting on August 3, 2004. World Bank Management has made a commitment to be guided by the Board of Executive Directors' discussion on the issues surrounding the free, prior and informed consultation in finalizing the revision of the draft Indigenous Peoples policy.

Mr. Chair, in concluding, I would like to thank you for allowing me the opportunity to summarize the World Bank's current position on these important issues. I believe the Bank is moving clearly in the right direction in its quest to promote culturally appropriate development for Indigenous Peoples.

Luzmila Amaya Curvelo, Akuaipa Waimakat

The association of the Akuaipa WAIMAKAT proposes to the Working Group on Indigenous Populations, to the United Nations Special Rapporteur on the Fundamental Rights and to the members of ILO, to carefully observe the implementation of Convention 169 in Colombia. Although there exists a law in this country, which ratified the Convention, the institutions of the National Government do not recognize its content and act