In the last six months, two key milestones have been reached in India around the protection of Adivasi
rights. The first milestone was a ruling by Supreme Court in April which gave Adivasi communities in the Niyamgiri hills of Orissa the final say on plans by a subsidiary of Vedanta
Resources and the Orissa state mining company to mine for bauxite on their traditional lands. The judgement was a landmark victory in recognizing indigenous people’s rights in India.
The second, not so well-known, milestone, was a set of amendments proposed by the National Advisory Council (NAC) in December last year to the Panchayat (Extension to Scheduled Areas) Act, 1996 (known as PESA). The NAC recommended that the free prior and informed consent (FPIC) of affected Adivasi communities be mandatorily obtained before the government acquires any land for development projects, or decides on rehabilitation packages. Not “consultation”, or “recommendation”, as the PESA currently says, but “prior informed consent”.
These events mark a basic shift in the way India has regarded the rights of Adivasis over their land. For years, communities and rights groups have demanded that FPIC, be made a reality to protect Adivasi rights. The Forest Rights Act
mandates the obtaining of consent, but only in the context of protected forest lands. Amnesty International’s work in India has demonstrated that in several contexts where mining projects have been proposed or implemented on Adivasi lands, their voices are rarely heeded. The absence of a consent requirement has contributed to severe human rights abuses, as well as negative social, economic, cultural and ecological consequences for Adivasi communities.
India is also a party to ILO Convention 107
on Indigenous and Tribal Populations, which guarantees Adivasi communities the right to participate in decision-making on projects affecting their community and traditional lands. (Yet ILO Convention
169, a more progressive instrument which was drafted to replace Convention 107, and widens the protections given to indigenous communities, has not been signed by India.)
Obtaining FPIC is also being increasingly accepted as a requirement by industry. It was included in the 2012 performance standards of the World Bank’s International Finance Corporation, and by extension the Equator Banks. The UN Guiding Principles on Business and Human Rights
require companies to take steps to become aware of, prevent and address adverse human rights impacts, and the UN Experts Mechanism on the Rights of Indigenous People has recommended that companies consider FPIC in their human rights “due diligence” processes. The UN special rapporteur on Indigenous Peoples has also underscored FPIC’s importance for indigenous people who face the risk of potential impact of mining projects’ on their traditional lands.
So what exactly does “consent” involve? The commitment to FPIC is an explicit acceptance that indigenous people are not just stakeholders for engagement, but holders of rights, which requires that such consent be:
• Free, that is, freely given without manipulation, coercion, threat, fear of reprisal, corruption, or inequality of bargaining power;
• Prior: Indigenous people must be given sufficient time to give their free consent to a proposed activity according to their values, tradition and circumstances.
• Informed: There must be full, clear, objective, and culturally appropriate disclosure of a proposed activity; indigenous people must be informed of their rights (including lands, resources and traditional knowledge) and have the right to obtain independent advice. The greater the impact on the indigenous people—such as, development on traditional lands, relocation, storage of hazardous materials—the greater the onus on those proposing the activity to show that the process was robust.
• Consent means the right to say no; and free, prior and informed consent may be required at different stages of a proposed activity.
And, decision-making must be inclusive and consent should be obtained through the people’s chosen representative structures and decision-making processes. Particular attention needs to be paid towards the effective participation of women in decisions affecting them.
The most critical aspects of FPIC will include the processes leading to consent, especially the need for robust mechanisms of consultation to facilitate mutually acceptable agreements; and monitoring, enforcement and grievance mechanisms.
The process by which local Adivasi communities are deciding the fate of the Niyamgiri mine are being keenly watched the world over. Indeed, Niyamgiri is now a test case. And so are the NAC recommendations to make prior, informed consent part of India’s existing legislation. How these two events play out in the next few months could well impact the lives of India’s Adivasis for decades to come.
Ramesh Gopalakrishnan is a researcher with Amnesty International. Comments are welcome at firstname.lastname@example.org