FPIC

Question 1

Saramaka

Answer 1

v Suriname - Consultation and consent for large-scale extractive projects

Question 2

Sarayaku

Answer 2

v Ecuador - FPIC is a “general principle of international law”

Question 3

Ogoni

Answer 3

Nigeria

When the Ogoni people of Nigeria organized in protest of Shell’s oil operations in the Niger Delta, Shell worked with the Nigerian military to crack down on the Ogoni. Nigerian soldiers used deadly force and massive, brutal raids against the Ogoni people throughout the early 1990s to repress a growing movement against the oil company. This crackdown culminated in the torture and execution of acclaimed writer and environmentalist Ken Saro-Wiwa and eight other leaders, known as the “Ogoni Nine,” on November 10, 1995. We took Shell to court in the United States to seek accountability for surviving victims and the families of those killed.

On the eve of trial, on June 8, 2009, Shell agreed to settle the lawsuits filed against it. The settlement provided a total of $15.5 million to compensate the plaintiffs, establish a trust for the benefit of the Ogoni people, and cover some of the legal costs and fees associated with the case.

Question 4

Endorois

Answer 4

Kenya (African Commission on human & peoples rights)

Question 5

Monterrico

Answer 5

Peru (settlement)

In 2009 Leigh Day represented a group of 33 indigenous Peruvians in the High Court in London. The claim was against the British parent company Monterrico Metals plc. Our clients alleged that, following a protest about environmental issues, they were tortured, beaten and sexually abused by the Peruvian police and mine employees at Monterrico’s Rio Blanco mine in August 2005.

In June 2009, Leigh Day obtained freezing injunctions in the UK and Hong Kong High Courts over Monterrico’s assets worldwide. We did this to protect our clients’ interests against the financial impact of Monterrico’s decision to relocate to Hong Kong.

Although the company did not admit liability, in July 2011, three months before the trial was scheduled to take place, it agreed a confidential settlement with our clients to pay costs and compensation.

Question 6

Juurkan Gorge

Answer 6

• The company (Rio Tinto) wanted to deconstruct the gorge that had 46,000 years of history for the aboriginal peoples - they blew it up
  
  • Puutu Kunti Kurrama Pinikura (PKKP)
  • Ended up costing the CEO his job, as well as two of his deputies
    Investor groups joined the aboriginal groups in pressuring the company (first the company was just going to take away their bonuses but they ended up losing their jobs)

Unisuper said it had met with Rio Tinto representatives to emphasise the importance of protecting culturally significant sites. “We will continue to meet, both directly and through collaborative engagements, with the company to better understand what happened in this particular case and await the findings of a company investigation into this event, which will be done with the local traditional owners,” Unisuper said.

Question 7

DAPL

Answer 7

In the Dakota Access Pipeline case in the United States, the US courts and the OECD Swiss National Contact Point highlighted the violations of Indigenous Peoples’ FPIC. The US courts ruled that the project must stop, but oil continues to flow through the pipeline. Importantly, the Swiss NCP facilitated that Credit Suisse (one of the financiers of the DAPL) acceptance of requiring FPIC for project financing, but they listed only a handful of sectors—mining, oil & gas, forestry and agribusiness—noticeably excluding the tech sector from the list of applicable clients.

6 banks ended up withdrawing funding.

Question 8

Anaya

Answer 8

“single most important contribution” to the protection of indigenous peoples
“saguards” other rights

Question 9

Doyle

Answer 9

According to Doyle, it is now “incontestable that right of indigenous people to give or withhold FPIC falls within the universe of rights corporates must respect, independent of State actions”.

Question 10

Poma Poma

Answer 10

Peru - HRC indigenous woman water wells

Question 11

Mejias

Answer 11

Data colonialism and data extractivism
Ex: cheap nature for colonists - it didn’t have a “civilized” owner of the resources
Cheap labor is needed in order to turn cheap nature into labor (Colonialism is a racialized order)
Cheap data - shares some of the same characteristics of cheap nature and cheap labor (abundant, free, no real “owner” especially when it is aggregated and it is only companies with a lot of infrastructure and power to process it and refine it

Question 12

Indigenous Data Sovereignty

Answer 12

Indigenous Data Sovereignty (IDSov) upholds the rights of Indigenous Peoples, communities, and Nations to “govern the collection, ownership, and application” of datasets created with or about Indigenous communities, Indigenous Lands, and Indigenous Knowledge (Caroll). IDSov shifts from Western transactional, extractive approaches to data collection and governance to models that are more rights-based for Indigenous peoples. It is critical that tech companies understand this concept and its relationship to FPIC in order to ensure they are upholding their responsibilities according to the UNGPs.

Question 13

Copper Mesa & ISDS

Answer 13

This is partly due to a proliferation of international, regional and bilateral investment agreements that protect the interests and rights of investor

Question 14

Joan Carling

Answer 14

This is also due to the unjust energy transition’s disregard for Indigenous peoples and trends of ‘green colonialism’

Question 15

Tech sector extractivism

Answer 15

The tech sector, too, has been extracting Indigenous peoples’ biometric information, Indigenous Knowledge, and other forms of data without their involvement or consent, leading to the mislabeling of maps, cultural expropriation and appropriation, and diluted control over their rights to land, privacy, and autonomy over cultural preservation.

Question 16

Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

Answer 16

FPIC is a manifestation of indigenous peoples’ right to self-determine their political, social, economic and cultural priorities

Question 17

UNDRIP

Answer 17

Peoples have the right to “maintain, protect, and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies and technologies.”

Question 18

Aadhaar biometric identification system

Answer 18

In India, the government worked in partnership with the Bill & Melinda Gates Foundation and the World Bank to develop the Aadhaar biometric identification system for citizens. Citizens are required to use the system to receive welfare payments and social services. The technology behind Aadhaar mandates the collection and processing of biometric data for identification purposes, namely by taking fingerprints, iris scans and facial scans, and there have been multiple data leaks to date. No public consultations were recorded in discussing the design or requirements of such a solution, and the Adivasis indigenous communities have raised concerns about the collection of their biometric data without proper consent and the implications for their privacy and autonomy.

Question 19

IDEMIA case

Answer 19

A similar case is that of French company IDEMIA’s deployment of biometric ID systems in Kenya. NGOs filed a complaint under the French Duty of Vigilance law. This case ended in a settlement, and the company adapting its policies, but there was no specific mention of FPIC for Indigenous Peoples in Kenya. Without FPIC, it is impossible to design systems that are beneficial and accessible to all, nor is it possible to design solutions with respect to IDSOV.

Question 20

OCAP

Answer 20

In 2010, Indigenous legal scholars developed ownership, control, access, and possession (OCAP) standards for data collection about Indigenous peoples, with the aim of changing the way researchers study Indigenous peoples. For example, ‘ownership’ refers to the relationship of First Nations to their cultural knowledge, data, and information. This principle states that a community or group owns information collectively in the same way that an individual owns his or her personal information.

Question 21

Te Mana Rauranga Charter

Answer 21

. The Te Mana Rauranga Charter was developed by the Maori in New Zealand and Australia, and has a similar aim.

Question 22

States should

Answer 22

• First fundamentally accept, and legislate, enforce Indigenous Peoples’ position as rights holders with sovereignty over their land, bodies, data and culture (including the tech sector as an extractive sector). It is critical to involve indigenous peoples in the development of any policy that affects them, particularly indigenous digital rights groups.
• Adopt the LBI, ensuring that there are no reservations to Article 6 which recognizes Indigenous Peoples FPIC.
• Strengthen OECD NCPs to ensure that they are independent and trained in Indigenous Peoples rights and how to respect their sovereignty
• Create a separate agency to manage the oversight of effective FPIC (Rohr) and ensure they are trained in digital rights
• Ensure that they are engaging (in partnership with Indigenous representatives) with tech companies to have more leverage/influence over tech company policy and practice

Question 23

Tech companies must:

Answer 23

• Create policies and protocols that ensure Indigenous peoples are involved from the design phase of tech solutions, for all projects that will impact them
• Create Indigenous Councils at the board level to help guide the practices of the company, and ensure FPIC is respected
• Ensure continuous “meaningful stakeholder engagement” (Ruggie), which is rights-respecting but also beneficial for the company’s social license to operate
• Develop and begin to offer co-ownership and co-equity models when utilizing Indigenous Peoples data and negotiate more equitable benefit-sharing mechanisms

Question 24

Why FPIC?

Answer 24

The lack of legal recognition or enforcement of Indigenous groups’ rights, especially land rights, enables the expropriation of Indigenous land and data. The modern nation state only exists because of the objectification of Indigenous Peoples in the drawing of state boundaries in international law, as many colonizers declared Indigenous lands as ‘terra nullius’ (meaning land belonging to no one). Leaders and citizens within modern nation-states continue to confuse self-governing Indigenous Peoples for minority populations within state borders. This legacy of dispossession and disregard for Indigenous sovereignty necessitated the development of protective mechanisms within international human rights law, notably the concept of Free, Prior, and Informed Consent (FPIC).

Question 25

Jurana case

Answer 25

The Juruna and Belo Sun case in Brazil, however, exemplifies the power of FPIC when properly respected, given that the court found a violation of the Indigenous community’s ‘autonomous FPIC protocol’, which resulted in the invalidation of the environmental approval for the mining project and the suspension of the mining operation (IWGIA).

Question 26

IFC

Answer 26

With regard to international development banks, the International Finance Corporation Performance Standards include the requirement to consider FPIC, but it is not strictly upheld.