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Land Use Policy 35 (2013) 406– 416

Contents lists available at SciVerse ScienceDirect

Land Use Policy

jou rn al hom epage : www.elsev ier .com/ locate / landus epol

ow does ‘Free, Prior and Informed Consent’ (FPIC) impact socialquity? Lessons from mining and forestry and their implicationsor REDD+

ango Mahantya,∗, Constance L. McDermottb

Crawford School of Public Policy, College of Asia and the Pacific, HC Coombs Building, Fellows Road, Australian National University, Canberra, ACT, 0200,ustraliaOxford Centre for Tropical Forests, University of Oxford, United Kingdom

r t i c l e i n f o

rticle history:eceived 14 November 2012eceived in revised form 28 June 2013ccepted 30 June 2013

eywords:quityertification

a b s t r a c t

The principle of “Free, Prior and Informed Consent” (FPIC) is promoted through international agreementsand safeguards in order to strengthen social equity in resource management by requiring consent fromindigenous and/or local communities prior to actions that affect their land and resource rights. Based onearly experiences with implementing FPIC standards in mining and forestry, we examine how FPIC hasimpacted social equity and why. In both sectors FPIC was first operationalized through non-governmentalstandards that revealed ambiguities surrounding its definition and implementation. In mining, FPIC wasfirst codified in the standards of financial investors, while in forestry FPIC emerged within competing

iningorestree, prior and informed consentEDD+

market-based certification schemes, resulting in contrasting definitions. In both sectors, contextual fac-tors such as government laws and policies, the socio-political environment and the overall distributionof rights and resources strongly shape the impacts of FPIC on equity particularly for actors without stronglegal rights. These findings are significant for emerging arenas such as REDD+, where there is much debatearound the role of governments, financial institutions and market-based actors in applying FPIC for socialequity outcomes.

ntroduction

Indigenous peoples’ right to free, prior and informed consentFPIC) about activities that impact their lands, territories and cul-ural, intellectual, religious and spiritual property is enshrined inhe UN Declaration on the Rights of Indigenous Peoples (Unitedations, 2008), and in various international standards and social

afeguard policies (Carino and Colchester, 2010; United Nations,008; World Bank, 2005). FPIC is widely viewed as a means for

ndigenous peoples and local communities to shape the directionnd outcomes of resource interventions (Baez, 2011), and to pro-ote social equity through the pro-active defense of property rights

or vulnerable groups. This paper examines to what extent FPICegimes have been able to meet these aspirations and why.

We focus in particular on the mining, oil and gas sector (here-fter referred to collectively as ‘mining’) and forestry as two areas

here FPIC has been operationalized for over a decade. Both sectors

perate in frontier areas where forests are economically and cul-urally important to local populations, and both have been widely

∗ Corresponding author. Tel.: +61 2 61258058.E-mail address: sango.mahanty@anu.edu.au (S. Mahanty).

264-8377/$ – see front matter © 2013 Elsevier Ltd. All rights reserved.ttp://dx.doi.org/10.1016/j.landusepol.2013.06.014

© 2013 Elsevier Ltd. All rights reserved.

criticized for violating indigenous rights and negatively impactinglocal livelihoods (Carino and Colchester, 2010). While FPIC is thusof major relevance to both sectors, mining and forestry differ inthe nature of their impacts, their broad governance structures andthe specific strategies they have adopted to address indigenous andlocal rights.

This paper examines why FPIC governance has evolved differ-ently in these two sectors and the implications of these differentapproaches for the end goal of social equity. In recognition that“equity” is complex and socially contested concept, we have drawnon McDermott et al.’s Equity Framework (2012c) to structure ouranalysis. Rather than adopt an a priori stance on what is “equitable”,the Equity Framework provides a systematic means to compareand contrast core features of FPIC governance systems, includingthe balance of actors that have framed international sector-widestandards, how FPIC is operationalized at national and local levels,who is included or excluded as subjects of FPIC, and what countsas adequate FPIC outcomes.

Lessons from this analysis hold great significance for the broader

application of FPIC in frontier areas where rights to forests and land,critical to livelihoods and culture, are frequently disputed. Of majorcurrent significance, they are relevant to Reducing Emissions fromDeforestation and Degradation and forest enhancement (REDD+),

Land Use Policy 35 (2013) 406– 416 407

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mechanism under the United Nations Framework Convention onlimate Change (UNFCCC) which could potentially leverage inter-ational finance to change forest use across the majority of theeveloping world (Anderson, 2011). Covering a suite of programso arrest forest loss and conserve carbon (Peskett and Brockhaus,009), the sheer potential geographical and financial scale of REDD+as heightened international controversy about the risks posed for

ocal customary property rights and livelihoods. Although FPIC ismbraced as the central social safeguard to mitigate risks and max-mize benefits to these groups, this expectation is founded on veryimited understanding of experience with FPIC to date, making ournalysis both timely and important.

heoretical approach

FPIC emerged from the convergence of international humanights agendas and civil society critiques of involuntary reset-lement for infrastructure projects (Carino and Colchester, 2010;

cGee, 2009; Szablowski, 2010). FPIC ultimately aims for a fairerreatment of indigenous and other affected peoples in developmentnd resource interventions through:

(i) the absence of coercion, intimidation or manipulation (Free);(ii) early consent with adequate time for local decision-making

processes (Prior);iii) access to sufficient, appropriate information for a consid-

ered choice e.g. on the nature of the activity – its size, pace,reversibility, scope, rationale, duration, location – and its likelyimpacts (informed); and

iv) the right to consent, or withhold consent, with due regardto customary institutions, gender and age (United NationsPermanent Forum on Indigenous Peoples, 2010).

FPIC is rooted in Western notions of formally codified prop-rty rights, which affirm the right of persons holding legal rights toroperty to not be alienated from that property without their con-ent. However, FPIC as an explicit policy has focused particularly oneoples governed by traditional or “informal” social systems whorequently lack clear legal identities and rights and/or lack equalccess to legal defense and the information and power needed toefend their informal rights. FPIC thus functions as a tool promotinghe formal recognition of property rights among legally disadvan-aged peoples. This very act of formalizing traditional or informalights impacts the equity of social relations within and betweenocial groups. For example, FPIC inherently disfavors those with-ut property rights to assert, i.e. FPIC policies are not necessarilyesigned to promote equal opportunity for landless and fully dis-nfranchised members of society.

While the impacts of FPIC on equity may vary, equity is a con-ept firmly embedded within the discourse on FPIC and humanights more generally. Both equity and human rights encompassotions of social justice, fairness, due reward, and accountabilitySchroeder and Pisupati, 2010). Similar notions are captured in theN Declaration on the Rights of Indigenous Peoples 2008. The Dec-

aration aims to protect indigenous rights based on principles ofocial justice, fairness and equality (Article 46 (3)), which are to beealized through their free, prior and informed consent about mat-ers relating to their lands and societies (Articles 10, 11, 19, 28 and9).

The concepts of “equity” and “equality” are integrally connected,ut equity highlights the social choices and trade-offs involved

n determining precisely what must be equal and among whom.or example, societies and individuals may emphasize equalityn terms of opportunity, and/or equality in the distribution ofesources (Nicholson and Chong, 2011). Also significant is the

Fig. 1. Equity framework for analysis of equity in resource interventions.Source: McDermott et al. (2012c).

question of who is involved in defining the priorities of equity.These complexities are recognized in the Equity Framework byMcDermott et al. (2012c), which allows for a comprehensive andsystematic analysis of equity.

The Equity Framework is structured around four broad parame-ters. The outermost parameter concerns the process by which equityis defined, and who is included and excluded in governing decisionsabout equity. The second parameter addresses the goal of equity(e.g. are the stated goals to do no harm or to improve equity?) and towhat extent equity is a goal. The third parameter highlights the tar-get or who counts as a subject of equity. The ‘content’ or what countsin evaluating equity may involve three distinct dimensions. McDer-mott et al. (ibid) identify these dimensions as “procedural”, focusedon equal access to decision-making, “distributive”, concerning fairdistribution of resources and “contextual”, in the sense of over-all capacity or empowerment (Sen, 2004). Fig. 1 summarizes thesevarious parameters and dimensions.

This paper’s analysis is organized around the application of theEquity Framework to the case study sectors of mining and forests.

Methodology

Our analysis of FPIC in the mining and forest sectors is orga-nized into two main parts. Section “FPIC in mining and forestry:how are the parameters set, why and for whom?” addresses theouter three layers of the Equity Framework (Fig. 1). We identify theprimary actors and institutions responsible for introducing explicitFPIC policies into each sector and setting its overall parameters, andhow this has shaped the goals of equity and its target populations.

Section “Operationalizing FPIC: what counts?” then draws ona series of country case studies to address the inner layer of theframework. It provides a sector-by-sector examination of the dif-ferent case study contexts in which FPIC has been operationalized,as well as the procedural and distributive outcomes.

The primary cases selected for the mining sector are Canada andPapua New Guinea (PNG), with Indonesia included for additionalanalysis. Both mining and forestry are key industries for Canada,

and often require negotiations with indigenous communities,which has led to a relatively large body of literature on indige-nous rights in both mining and forestry. The selection of Canada asa case study also permits comparison of FPIC experiences between

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an opportunity to promote indigenous rights in such contexts(Colchester and Ferrari, 2007).

08 S. Mahanty, C.L. McDermott /

ectors in at least one country. PNG represents a contrasting devel-ping country case that is also relatively well represented in theiterature due to PNG’s strong economic reliance on mining.

Both Canada and PNG are countries where indigenous tenurend political rights are relatively strong, and thus represent sce-arios where international FPIC standards might be expected tohow some synergy with national frameworks. PNG has a majorityndigenous population with constitutionally and legally recognizedustomary land rights and consultation requirements (Colchesternd Ferrari, 2007). Canadian First Nations have a range of legalights in relation to consultation for extractive industry projects,lthough their power in practice has been variable and limitedSimons and Collins, 2010). To add depth to the analysis, additionalase material is included from Indonesia, to consider a contrastingnvironment where indigenous tenure rights are relatively weak.owever, the Indonesian analysis is limited by the relatively smallolume of literature on mining and FPIC there.

In the forest sector, the primary case studies are Britisholumbia, Canada and Brazil. International standards for FPIC inorestry were pioneered by forest certification schemes, and bothanada and Brazil have the largest certified forest area in theirespective regions (FSC-AC, 2012). In particular, British Columbiand the Brazilian Amazon are of major significance for FPIC givenhe presence of relatively large areas of intact forests occupied byndigenous peoples (Bryant et al., 1997). As with mining, this caseelection permitted comparison of developed and developing coun-ry experiences. Despite the differences in economic development,ights to forest resources remain unresolved for many indigenousroups in both jurisdictions, increasing both the importance, andhallenges, of applying FPIC.

The main data sources for both the mining and forest sectorre academic and grey literature, policy documents and standards.iven the relative absence of academic literature on FPIC in forestertification, our analysis of the forest sector was supplemented by

review of FSC’s certificate database.1 Specifically, we classifiedll FSC certificates by certifier, land ownership, forest type (plan-ation, semi-natural or natural forest), and certified area. We theneviewed the current and historical public summary reports of cer-ification decisions, identifying and recording “Corrective Actionequests” (CARs) relating to FPIC. CARs are requirements that certi-ed companies must address within specified time frames in ordero maintain their certification. The CARs thus represent the publiclyvailable record of the changes certified operators were requiredo make to address indigenous rights, including FPIC.

esults

PIC in mining and forestry: how are the parameters set, why andor whom?

Table 1 summarizes the development of FPIC in the mining andorest sectors and situates them within the overall development ofnternational indigenous rights law.

The impetus for FPIC in mining came from damaging pub-icity about its negative environmental and social impacts, andhe associated risks to company reputations and mine oper-tions (MacIntyre, 2007; see Table 1). These impacts rangerom the environmental issues associated with major landscape

odification, pollution from mining operations, including toxicollutants in soils and waterways, and significant social displace-ent and change due, for instance, to the need for resettlement and

1 The focus on FSC versus PEFC was due to a longer record of public summariesor the former, as well as the fact that only the FSC has currently valid certificatesor natural forest management in Brazil.

se Policy 35 (2013) 406– 416

the influx of external workers (Crowson, 2009). Mining thus hasa relatively large environmental and social footprint. The capitalintensive nature of mining operations (Crowson, 2009), and theirreliance on international finance also opened the door to height-ened international scrutiny and criticism. These factors mean thatFPIC requirements in mining are centered on the mining indus-try’s own voluntary guidelines and safeguards applied by financinginstitutions, although the latter apply more broadly than to miningalone.

In the finance sector, a key early development was the WorldBank’s Extractive Industries Review (World Bank, 2004). Colchesterand Caruso (2005: p. vii) find that the EIR “. . . opened up politicalspace for indigenous peoples and civil society to enter into similar,so far informal, dialogues with other international developmentagencies and industry bodies”. The resulting safeguards apply toproject financing. In order to obtain financing from Equator Prin-ciple Financial Institutions,2 large mining projects need to complywith the Equator Principles (MacKay, 2004). These principles call forsocial and environmental assessment (Principle 1) and consultationand disclosure with affected groups (Principle 5); non-compliantprojects may have finance withheld (Correa et al., 2004; Herbertsonet al., 2009). Similarly, the International Finance Corporation (IFC)3

has developed guidelines specifying performance standards in rela-tion to the assessment of environmental and social risks (PS1),particularly those related to land acquisition and involuntary reset-tlement (PS5) and Indigenous peoples (PS7).

While financial institutions were developing safeguards, themining industry, buoyed by investor and shareholder concerns,launched its own International Council on Mining and Metals’Global Mining Initiative, which commissioned research andenabled consultations with civil society and private sector orga-nizations. As a result, FPIC is widely incorporated in voluntarycorporate social responsibility guidelines, which operate in parallelto financial safeguards.

By adopting FPIC as part of their safeguards for the mining sec-tor, and through voluntary industry standards, these processes andthe lead actors have established the “parameters” of equity – thestandards by which social assessments and outcomes will be judged(the outer ring of the Equity Framework).

In spite of FPIC becoming a ‘norm’ in the mining sector, theparameters or ‘scope’ of FPIC has been contentious. Debate existsover whether FPIC rightly culminates in consent (or withholdingof it) by target communities, or whether the scope of FPIC shouldbe limited to consultation in order to elicit local concerns and bet-ter address them in project design (Barstow-Magraw and Baker,2007; Colchester and Ferrari, 2007; Satterthwaite and Hurwitz,2005). The language in the IFC requirements and the EquatorPrinciples emphasize consultation, rejecting the EIR’s original rec-ommended wording of consent. Industry and government interestsprevailed, based on the argument that, where indigenous groupsheld very weak political and property rights, international frame-works premised on ‘consent’ could have exceeded national lawsand threatened sovereignty (Satterthwaite and Hurwitz, 2005),while indigenous advocacy groups saw strong FPIC provisions as

2 Equator Principle Financial institutions (78 at the time of writing) commit toimplementing the EP in their internal environmental and social policies, proce-dures and standards for financing projects and will not provide Project Finance orProject-Related Corporate Loans to projects where the client will not, or is unableto, comply with the EP. These institutions cover an estimated 70% of internationalProject Finance debt in emerging markets (Equator Principles Association, 2013).

3 The International Finance Corporation, a member of the World Bank Group,focuses exclusively on private sector lending in developing countries (IFC, 2013).

S. Mahanty, C.L. McDermott / Land Use Policy 35 (2013) 406– 416 409

Table 1The development of international FPIC safeguards.

Timing International human rights agreements Mining Forest certification

<1950s UN Declaration on Human Rights 19481950–2000 ILO C107 on Indigenous and Tribal

Populations (1959)ILO C169 Indigenous and Tribal PeoplesConvention (1989)Draft UN Declaration on the Rights ofIndigenous Peoples (1993)

FSC Principles and Criteria requiring freeand informed consent: Principle 2 Tenureand use rights and responsibilitiesPrinciple 3 Indigenous Peoples’ Rights(1993)

2001–2005 World Bank’s Extractive Industries Review(2003) and Management Response (2004)International Council on Mining and Metals(ICMM) Voluntary Principles Principle 10on stakeholder engagement (2003)

2005–present UN Declaration on the Rights of IndigenousPeoples 2008

World Bank Operational PoliciesOP4.10 Indigenous Peoples (2005)International Finance CorporationPerformance StandardsPS7 Indigenous Peoples (2006, updated2012)Equator Principles

e 5 Co

FSC Principles and Criteria (2012) requiringfree, prior and informed consent: Principle3 Indigenous Peoples’ Rights; Principle 4Community Relations (2012) Reference toILO 169 and UNDRIPPEFC International Standards (2010)addressing free, prior and informed

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In regards to “who counts” (the second layer of the Equityramework), FPIC provisions in the IFC standards apply to indige-ous communities and those groups targeted for resettlement,hile the Equator Principles address ‘project affected communities’ore broadly. A criteria-based approach to defining indigeneity

s used,4 with attendant challenges in delineating social, spatialnd temporal boundaries (Laplante and Spears, 2008; MacIntyre,007). The IFC safeguards recognize the complexity in defining tar-et groups for FPIC, specifying that “The client may be required toeek inputs from competent professionals to ascertain whether aarticular group is considered as Indigenous Peoples for the pur-ose of this Performance Standard” (Paragraph 7).

Overall, the heavy involvement of financial lending institutionsn the development of FPIC standards seems to be consistent with asafeguards” or “risk-based” approach to FPIC, whereby indigenousights are framed as risks or constraints to be placed on front-endnvestment decisions (McDermott et al., 2012a). From this risk-ased perspective the target or goal of equity (the third layer ofhe Equity Framework) is to “do no harm” rather than to proac-ively pursue the strengthening of indigenous rights. This approachs also consistent with a relatively narrow focus on groups withstablished legal land and resource rights.

The development of FPIC in the forest sector has important simi-arities as well as differences to mining. Like industrial scale mining,he impact of the forest industry on indigenous rights has drawnncreasing international scrutiny, particularly as it relates to indus-rial timber concessions in natural forests (e.g. Colchester, 2010)nd the expansion of large-scale timber plantations (e.g. Gerber,011). However in the case of forests this scrutiny occurred in par-llel with the development of an extensive international ‘complex’

f intergovernmental and non-governmental institutions focusedn arresting global forest loss and the promotion of a “sustain-ble” tropical timber trade (McDermott et al., 2012b). It was in

4 For example, IFC Performance Standard 7 defines indigenous peoples as “a dis-inct social and cultural groupp̈ossessing the following characteristics in varyingegrees: self-identification as members of a distinct indigenous cultural group andecognition of this identity by others; collective attachment to geographically dis-inct habitats or ancestral territories in the project area and to the natural resourcesn these habitats and territories; customary cultural, economic, social, or politicalnstitutions that are separate from those of the mainstream society or culture; or aistinct language or dialect, often different from the official language or languagesf the country or region in which they reside. (IFC PS7, Para 5)

nsultation and Disclosure consent: Indicator 5.6.4 Reference to ILO169 and UNDRIP

the context of growing frustration with the slow pace of inter-governmental negotiations that a coalition of non-governmentalactors led by the World Wildlife Fund (WWF) decided to launchthe Forest Stewardship Council (FSC) (Elliott, 2000) as a new formof “non-state market-driven governance” (Cashore et al., 2004).

The FSC was established as an international forest certifica-tion scheme engaged in setting standards for environmentally andsocially responsible forestry and overseeing a system of third-party assessment and certification. The FSC aimed to incentivizeimproved forest practices through market recognition of produc-ers who met high standards of responsible management. It wasthrough this NGO-driven system of environmental labeling andthird-party monitoring that international standards for FPIC werefirst systematically introduced into the forest sector, roughly 10years ahead of the World Bank’s EIR. In other words, interna-tional NGO’s played a core role in setting the initial parametersof international standards for FPIC (i.e. the outer layer of the EquityFramework) in the forest sector.

NGOs also elicited the involvement of indigenous leaders earlyin the process of parameter-setting. While forest loss, rather thanindigenous rights, were arguably the central focus of the FSC,the FSC placed significant priority on indigenous participation.This was due in part to the active engagement of organizationsworking on indigenous issues, but also to the perceived con-vergence between indigenous and conservation interests (Elliott,2000: p. 91). Indigenous groups were thus consulted ahead ofthe launch of the FSC in 1993, and significantly influenced theinitial formulation of FSC standards (Synnott, 2005). The FSCwas then structured as a membership-based certification system,leaving scope for indigenous groups to join and vote as mem-bers or to run for its governing board (ibid). The resulting FSCinternational standards, known as the Ten Principles and Crite-ria (P&C), referenced ILO 169 and included a Principle 3 (P3)on Indigenous Rights and criteria requiring “free and informedconsent” on matters affecting indigenous legal and/or customaryrights.

The FSC’s chamber-based membership structure provided aplatform to further strengthen the parameter-setting role of indige-nous peoples at the national level as well. In Canada, for instance,

the FSC-Canada National Working Group chose to add a FourthChamber, the Indigenous Peoples Chamber, to its governancestructure. This gave Indigenous Peoples independent voting andveto power. In addition, sub-national working groups formed in

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scope and extent of FPIC. Even countries with relatively strongindigenous tenure, for instance, do not allow indigenous groups toveto mining. Thus, the absence of supportive national frameworks

10 S. Mahanty, C.L. McDermott /

everal regions of Canada, including British Columbia, each with anndigenous Peoples Chamber (FSC-Canada, 2012).

In regards to the second ring of the Equity Framework, “whyquity”, the requirements for “consent” under the FSC standardsxceed the “do no harm”, “consultation” approach of finance-ased mining standards. In addition, FSC-accredited certificationequires third-party assessment and includes the option of on-roduct labeling. In this way certification is intended to signaladditionality”, i.e. performance that is above and beyond industryelf regulation and business as usual. This additionality is sup-orted, but also limited by, the level of market demand for certifiedroducts.

On the third ring of the Equity Framework, “who counts”, the FSC&C extend the application of free and informed consent beyondndigenous communities to all local communities who hold cus-omary rights (Principle 4, Criterion 2.2). This inclusive approach,oupled with the FSC’s global scope, opened the door to applyingfree and informed consent” to all certified forest managementctivities affecting local rights in all countries, whether or notountries were signatory to ILO 169, and for all peoples with cus-omary rights, whether or not they are legally recognized. As willecome clear in our analysis of FSC implementation, this very

nclusive conceptualization of FPIC has not translated easily inton-the-ground practice.

The relatively strong influence of NGOs in FSC parameter- andoal-setting spurred the forest industry to create alternative stan-ards to compete with the FSC. Forest producer associations, first inorth America and Europe, then in other countries, formed nationalertification schemes with less stringent and all-inclusive require-ents regarding indigenous rights as well as other controversial

ssues (Cashore et al., 2004). FSC competitor schemes have sinceoined under the umbrella of the Programme for the Endorsementf Forest Certification Schemes (PEFC).

In sum, the mining and forest sectors have followed differentpproaches to setting the parameters, goals and target populationsf FPIC, which have contributed to weaker FPIC provisions for min-ng (‘consultation’) than for forest certification (‘consent’), althoughhere is significant variation among certification schemes. Whetherhese different standards lead to substantively different processesnd equity outcomes in the two sectors is examined next.

perationalizing FPIC: what counts?

The above Section outlined how the parameters of FPIC were setnd the implications for FPIC goals and target populations. We nowove to a sector-by-sector analysis of our case study countries,

xamining evidence on the intersection of international standardsith national and local contexts and resulting FPIC outcomes.

ining sector outcomeshat counts: contextual equity. Mining is a central facet of both

anada’s and PNG’s economies, accounting for almost 10% ofanada’s GDP in 2011 (Government of Canada, 2011) and around0% of PNG’s GDP (Globaledge, 2012). While Canada’s indige-ous peoples have faced historical injustices, legal space exists

or indigenous engagement in mining negotiations under thendian Act, which delineates aboriginal reserve lands and requiresompensation for its use/modification, and under the nationalegislation for environmental assessment (Fidler, 2010). PNG’s con-titution recognizes customary tenure, and creates negotiatingpace for landowning bodies that are registered under the Landroups Incorporation Act. In both countries, customary rights are

empered by the state’s retention of rights to sub-surface resources.ndonesia, of the case study countries, arguably faces the most com-lex challenges in defining indigeneity and its relationship to landights, due to its enormous cultural diversity and complex history

se Policy 35 (2013) 406– 416

of colonial occupations and government sponsored transmigrationpolicies.

Our analysis of mining in Canada, PNG and Indonesia highlightsthat FPIC practice is strongly shaped by national legal and pol-icy frameworks for project approval, tenure, and indigenous rights(Baez, 2011; Colchester and Ferrari, 2007; Hiraldo and Tanner,2011). These usually have no direct link to international agreementsand guidelines, instead arising from specific historical and contex-tual factors. Canada originally voted against the Declaration (UnitedNations, 2007), in spite of Canada’s pre-existing national system ofindigenous rights and representation, while Papua New Guinea’sconstitutional recognition of the diverse institutions and culturesof the majority ‘indigenous’ population significantly pre-dates theUN Declaration. Although Indonesia did vote for UNDRIP, it has noformal legal space for indigenous peoples.

Aside from laws and policies on indigenous peoples, nationalframeworks to manage land and extractive industries shape thescope of FPIC processes in mining. In PNG and Canada, althoughthe State owns sub-surface minerals,5 the formal property rights oflandowners (PNG) and First Nations (Canada) to the land containingthese resources has enabled them to negotiate royalties, compensa-tion or other benefits from mining operations, although they lackthe right to veto them. In this sense, the frameworks emphasizedistributive more than procedural equity.

Governance at the sub-national level, and its role in miningapprovals and implementation, also influence FPIC negotiations.For instance, Canadian provincial mining laws tend to favorresource extraction, while it is primarily the Federal EIA processesand constitutional rights that provide an impetus for FPIC (Simonsand Collins, 2010: p. 8). The option of judicial recourse has also beenactively used by indigenous groups to secure greater influence thancould be achieved under the mining and impact assessment lawsalone. In the PNG context, provinces and local government havemuch more limited political authority and capacity (May, 2003).

The question of ‘who counts’ is further complicated by uncer-tainty over which groups have legitimate claims to particularterritories. In PNG, for instance, the target ‘community’ can bedelineated according to descent group, according to residence,according to customary claims, and/or legally recognized rights.The status of non-resident individuals or families who claim tiesto the area, returnees and new migrants is often unclear. Althoughthe current generation of adults is consulted, it is subsequent gen-erations who bear many impacts. Given these complexities andthe high stakes involved in delineating land claims for extractiveindustries in PNG (Filer, 2007; MacIntyre, 2007), a process of cus-tomary landowner identification is a legal requirement in orderfor appropriate compensation and benefit-sharing agreements tobe negotiated. However, this process is often conflict-ridden (Filer,2008).

In Canada, environmental assessment legislation rather thanmining laws or land rights govern the consultation regime, as themining legislation aims to facilitate mineral extraction (Simons andCollins, 2010). However, nationally recognized rights to indigenousconsultation have been significant in several cases, underpinningsuccessful court challenges by groups that are unsatisfied about thescope and nature of mining negotiations (Fidler, 2010: p. 135).

These cases illustrate that national frameworks may createenabling conditions for indigenous groups to gain a ‘seat at thetable’ in mining negotiations, while simultaneously limiting the

5 Certain forms of indigenous title in Canada include both surface and sub-surfacerights (Sosa and Keenan, 2001: p. 6).

S. Mahanty, C.L. McDermott / Land U

Table 2Comparison of mining and forestry against the three ‘outer’ criteria of the EquityFramework.

Mining Forestry

Parameter-setting Finance-driveninvestmentstandards. Banksspearheadstandard-setting,along withvoluntaryguidelines andself-monitoring

NGO-driven,market-basedcertification. NGOsspearheadstandard-setting,third-partymonitoring

Goal Safeguards. Do noharm, legalcomplianceapproach

Additionality.Social benefit,beyond the lawapproach

Who counts? Narrower focus.Indigenous and/oraffected groups,defined in law

Broader focus.Self-identifiedindigenous andlocal communities

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obligatory. In the case of forest certification, as long as there aremarkets for uncertified wood, companies may avoid stringent FPIC

and/or expertopinion

an weaken indigenous claims, but their presence does not guar-ntee the integrity of FPIC either.

hat counts: procedural equity. Companies’ interest in gainingommunity consent invariably biases the information they providen FPIC processes, with important consequences (Colchester andaruso, 2005; MacIntyre, 2007; Whitmore, 2006; Wiriosudarmo,001). If local actors do not fully understand the future envi-onmental and social changes that mining might bring, they areess able to negotiate for appropriate levels of compensationMacIntyre, 2007). These knowledge gaps result not only from

isinformation, but also culturally disparate knowledge systems.xceptions can be found; at the Misima mine in PNG, for instance,ommunity relations staff worked with anthropologists to findppropriate methods to demonstrate to landowners the full extentf the land to be mined, the impacts of run-off from the mine, andffected reef areas (MacIntyre and Foale, 2004). The EIA regime inanada also facilitates a degree of transparency and attempts toridge traditional and scientific knowledge to explain mine impactsO’Faireallaigh, 2007).

Representation systems are common to FPIC processes as com-anies need to have identified points of contact that connect themo community leadership, and so that representatives can accu-

ulate knowledge and expertise about the project (O’Faireallaigh,995). These may be institutionalized, for example in the form ofncorporated Land Groups in PNG; and national, provincial and localndigenous representative organizations in Canada (see Table 2;allard and Banks, 2003).

A sole reliance on such bodies, however, is problematichere their accountability and transparency is weak (Filer, 2008;acIntyre, 2007; Martin, 2009). MacIntyre shows that even inatrilineal societies such as Lihir and Bougainville in PNG, men

ave commanded greater political authority and used “theirositions as clan spokesperson or representative to effectivelyisenfranchise their wives, sisters and their sisters’ children”MacIntyre, 2007: p. 56). Marginalization on the basis of ethnicitynd age are also common in PNG extractive industry negotiationsBallard and Banks, 2003: p. 301). Thus, the local systems of rep-esentation used in FPIC processes are not benign, but can harbornd perpetuate intra-community disparities.

The timing of consultations shapes both the scope and extentf local engagement in EI consultations (MacIntyre, 2007). It is notften that projects follow the path of Voisey Bay in Canada, whereroject plans were debated for around a decade (Gibson, 2006: p.

se Policy 35 (2013) 406– 416 411

338). More often, consultation occurs after project momentum hasalready mounted, which then limits the scope of negotiations todesign elements such as the location of infrastructure (Simons andCollins, 2010).

The sole focus on FPIC at the front end of mining projects hasbeen problematic, given that many significant issues can comeup during mine operation and closure (MacIntyre, 2007: p. 51).In Canada, O’Faircheallaigh finds that FPIC occurs during projectapprovals and to comply with approval conditions, but compa-nies and governments do not provide for ongoing negotiationsand consultation (O’Faireallaigh, 2007). The generation that reachesadulthood during the 20–30 years of a mine’s operation may expecttheir own benefit distributions, or question agreements made bytheir parents. Without ongoing consultations, as Ballard and Bankssuggest, compensation agreements may ossify social relations andbecome “time bombs that explode after about 20 years, with thepassing of decision-making power from one generation to another”(Ballard and Banks, 2003: pp. 301–302). Although there have beencalls to provide for ongoing consultation throughout the projectcycle (MacIntyre, 2007: p. 63), a major disincentive to longer termFPIC approaches lies in the limited external influence over miningcompanies once financial and state approvals have been granted(O’Faireallaigh, 2008).

What counts: distributive equity. Distributions from mining opera-tions address costs, like the loss of lands, environmental damage(affecting livelihoods and well-being) and social disruption due toresettlement and mine operations, as well as benefits in terms ofeconomic opportunities and income (Ballard and Banks, 2003: p.303).

Formal benefit distribution agreements are unique to countriessuch as PNG, Australia and Canada, where property rights areformally recognized (O’Faireallaigh, 2008). In these contexts, thenegotiation of a benefit package becomes another purpose for FPIC.In PNG, FPIC is realized under mining and oil/gas laws through“Development Forums”. These must be convened by the Ministerbefore granting a lease, and bring together landowners, local andprovincial government to determine benefit distributions. At theLihir and Porgera mines, Development Forums negotiated packagesthat included royalty redistribution, equity in the venture, specialsupport to the host provincial government, infrastructure fund-ing through special grants, training and business development, andseed capital for new landowner companies; these same categoriesare now reflected in the Oil and Gas Act (Filer, 2008).

Canadian evidence suggests, however, that the power of Aborig-inal groups to influence the terms of mining agreements dependsupon the specific influence and capacity of particular indigenousgroups (arising from relationships to government as well as sub-national regulatory and procedural differences) (Fidler, 2010: p.238). In this way, local capabilities can to some extent determinewhether the theoretical potential of FPIC to enhance indigenousaccess to the benefits of mining is realized in practice.

Forest certification outcomesThe context of certification in the forest sector is distinct in a

number of ways to mining, which in turn has shaped our analy-sis. To the extent that mining companies require external finance,meeting the FPIC or other requirements of financiers is effectively

requirements by continuing to operate without certification. Ourdiscussion on FPIC experience therefore focuses on the distributionof certificates as well as the application of FPIC within individualcertificates.

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ontextual equity. The Brazilian Amazon contains the largestxpanse of tropical forest worldwide, covering roughly 4 millionquare kilometers (Pereira et al., 2010), and is home to the majorityf Brazil’s indigenous population of around 410,000 (Stocks, 2005).o date a large proportion of both indigenous and non-indigenousopulations in the Amazon lack secure tenure. While recent offi-ial estimates suggest about 27% of the total forest area is underispute (Pereira et al., 2010), the remoteness of the region coupledith large populations of landless farmers and the complexities ofrazilian tenure laws contribute to more widespread tenure con-icts. The Amazon also has the highest rates of poverty, and a largeercentage of logging occurs in the “informal” or technically ille-al sector, particularly in the more remote areas (ibid). All of theseactors serve as barriers to certification, let alone FPIC. As a result,ertification has been very slow to grow in the Amazon (Pinto andcDermott, 2013).Within this geographic and socio-economic context, indigenous

ights have received relatively strong protection in the letter ofrazilian law. Brazil’s 1988 Constitution asserts the pre-eminencef indigenous claims to their traditional territories, as well as theights of its ethnically diverse peoples to maintain their culturaleritage (Stocks, 2005). Once indigenous rights are fully regis-ered, in principal no timber harvest can occur on indigenous landsithout tribal consent. However, while Brazil is a signatory toNDRIP, it currently lacks legislation that defines how such con-

ent should be obtained. Furthermore, while official registrationf indigenous territories proceeded rapidly following the enact-ent of the Constitution, it has since dramatically slowed due to

onflicting legislation, lack of funding and other political and eco-omic obstacles. As the population of indigenous peoples claimingights has risen, so has the number of competing interests includingandless farmers, cattle ranchers, miners, etc. (ibid).

Market factors have also shaped certification’s spread in Brazil.he vast majority of Brazilian wood produced for export origi-ates outside of the Amazon from privately owned plantations

ocated in the central and southern regions of the countryMcDermott et al., 2008). Likewise, the majority of certified for-st area is located on private lands (91% of FSC certificates) andlantations and semi-natural rather than natural forests (75%f FSC certificates, 100% of PEFC-endorsed certificates). Further-ore all certificates awarded on public or community-owned

ands involved a non-profit Brazilian-based certifier (Pinto andcDermott, 2013). This would indicate that certification has

xerted limited leverage on the application of FPIC in the Amazon,nd that NGOs have played a key role in exerting what leveraget has.

While the Amazon contains the largest areas of unregisteredand tenure, FPIC is relevant in other areas of Brazil as well. There are

any peoples in central and southern Brazil who claim unresolvedand rights, including distinct groups of African descent known asQuilombolas” and Amerindians as well as non-indigenous peoplesho identify with Brazil’s landless farmers movement. The juxta-osition of severe rural poverty with the rapid expansion of large

ndustrial monocultures of eucalyptus and pine on former pas-ure and farmland, has been associated with considerable socialonflict over land rights (Gerber, 2011; McDermott, 2012a). Thereave been many cases, involving thousands of indigenous andon-indigenous settlers, occupying land or “stealing” wood in treelantations (Overbeek et al., 2012). Forest certification’s instru-ental approach to FPIC, focused on negotiating with claimants

n a case-by-case basis, is unlikely to resolve the broader socialnequities driving these conflicts. Furthermore, as we discuss on

rocedural equity, companies and certifiers may attempt to con-ain these conflicts through a relatively narrow interpretation ofPIC as applying only to indigenous communities with recognizedegal rights.

se Policy 35 (2013) 406– 416

British Columbia, Canada provides critical lessons on the appli-cation of FPIC in a developed country where aboriginal land claimsare still unresolved over the vast majority of BC’s 58 millionhectares of forestlands. Ninety seven percent of British Columbia’sforestlands are considered publicly owned (CCFM, 2008), but veryfew treaties were signed with BC’s aboriginal inhabitants. In the1997 resolution of a pivotal court case, Delgamuukw versus BritishColumbia, it was decided that all aboriginal land claims in areaswithout treaties remained unextinguished (Coates, 1992). Overtime, an increasing number of legal decisions have strengthenedaboriginal rights, but very few new treaties and agreements havebeen signed, partly due to conflicting federal and provincial author-ity (Wood and Rossiter, 2011). Meanwhile, BC maintains a majorindustrial logging sector with many logging concessions overlap-ping areas under disputed tenure.

Indeed this lack of clarity over tenure is likely a significant fac-tor in the relatively slow growth of the FSC in British Columbiarelative to the rest of Canada. PEFC-endorsed schemes, in contrast,cover the majority of BC forestlands illustrating how flexible certi-fication standards have allowed extensive certification in areas ofongoing tenure dispute (McDermott, 2012b). There are currentlysix valid FSC certificates in BC and all of them are awarded for nat-ural forest management on public lands by non-profit certifiers. Inother words in BC, as in Brazil, non-profit certifiers dominate theimplementation of relatively stringent standards for FPIC in naturalforests. At the same time, a stringent interpretation of FPIC appearsto serve as a barrier to certification in regions of disputed tenure.

What counts: procedural equity. As noted above, the FSC standardsare clear on the need for FPIC but vague on procedures for identify-ing who in the affected community holds authority to give consentand how such consent should be obtained and verified. Our analysisof Corrective Action Requests (CARs) in our two case study juris-dictions sheds some light on how FPIC requirements have beeninterpreted in the field.

In total, 67% of the certified operations in BC and 20% of the cer-tified operations in Brazil were issued P3 CARs of relevance to FPIC,indicating that the remaining operations were considered to notrequire FPIC or to have followed an adequate FPIC process. Of theP3 CARs issued, the strongest requirements for additional actionwere applied to operations in natural forests. For industrial opera-tions and some community-based operations, emphasis was placedon formal, written protocols or legal agreements with indigenouspeoples.

P3 CARs for plantations, in contrast, were less common andfocused on the identification and mapping of indigenous peoples inthe surrounding area, to ensure that the operations did not impingeupon their territories. Some public summary reports listed con-cerns about indigenous rights but did not include any CARs toaddress them.

The ongoing requirements to audit and renew certificates, how-ever, means that observing FPIC is not merely a “front end” process,as it is in the mining cases discussed earlier. For example, disputesemerged when the pulp and paper company Aracruz purchased analready FSC certified plantation and attempted to renew the certifi-cate. This sparked controversy over the company’s other holdingswhere there were ongoing disputes over indigenous rights, leadingAracruz to voluntarily withdraw its certification (Donovan et al.,2006).

The Aracruz case provides some evidence that certification com-bined with public scrutiny puts ongoing pressure on companies

to resolve indigenous claims. At the same time, it is impossible todetermine from public summary reports alone how companies orcertifiers not subject to such scrutiny determine who is a legitimateclaimant for FPIC and what constitutes adequate FPIC process.

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The reputational risks for forestry firms and certifiers, and thembiguities surrounding the boundaries of affected communities,ay explain why CARs have focused on identifying and addressing

he rights of indigenous groups with recognized legal standing.one of the CARs issued in either BC or Brazil addressed the pro-edural equity of FPIC processes within indigenous communities,uch as the balance of hereditary or elected council involvement,r inclusion of women. In the case of Brazil, no evidence was foundhat FPIC processes had been applied to communities not legallyecognized as indigenous.

hat counts: distributive equity. There is very limited researchn how FPIC has impacted distributive equity in certification.owever, anecdotal evidence suggests that indigenous peoplesave at times used forest certification standards as tools to

everage benefits, including increased control over the pace andind of forestry, improved relations with industry, protection ofon-timber resources, capacity building, and direct and indirectconomic profit (Collier et al., 2002).

In regards to the relative importance of such benefits, a study ofntario aboriginal communities (Kant and Brubacher, 2008) found

hat access to decision-making and treaty rights (procedural andontextual issues) ranked as the most important forest manage-ent issue for these communities. The authors also found low

evels of understanding and awareness of certification. This high-ights that meaningful indigenous participation in certification mayequire substantial investments of time and money in capacityuilding. These investments, while necessary to meet the full intentf FSC standards, add to the already substantial costs of certifica-ion. The high costs of certification, in turn, have been identified ashe greatest barrier to the certification of aboriginal forestry ven-ures, many of which are small-scale and under-capitalized (Colliert al., 2002).

Whatever the benefit/cost ratio of forest certification in a givenontext, its role as a vehicle for FPIC is clearly not sufficient to over-ome major social challenges such as entrenched rural povertyoupled with highly unequal land distribution. Perhaps certifica-ion’s greatest potential for impact in these cases, is as a catalystor broader, cross-sectoral change.

iscussion: lessons and implications for new FPICrameworks

The mining and forest certification experience points to under-ying commonalities in the operation of FPIC systems in mining andorestry, as well as distinctive conditions that have shaped FPIC pol-cy and practice. Table 2 compared and constrasted the two sectorsn terms of parameter-setting, goals and target populations.

FPIC’s different trajectories in mining and forestry explain thestensible differences in its scope and governance, with ‘consulta-ion’ in mining and ‘consent’ in forest certification. One importantactor is the influence of different actors in the two sectors. In min-ng, the core role of international finance, and relatively strongnfluence of industry and government have significantly influ-nced the scope and wording of FPIC safeguards. In forestry, theore role of NGOs in launching forest certification has grantedndigenous bodies and human rights advocates a relatively strongoice. However the reliance of certification on market uptake hasncentivized the creation of competing industry-led certificationchemes, which differ in the degree to which their FPIC provisionsxceed legal norms.

While much is made of the distinction between ‘consent’ andconsultation’, the wording of international safeguards or standards

ay not be the ultimate arbiter of FPIC’s impacts on social equity.oth the mining and forestry cases highlight that the relationship

se Policy 35 (2013) 406– 416 413

between international processes and local FPIC practice is complex,and the national context is very influential. Table 3 highlights somemajor dimensions of influence, in relation to indigenous recogni-tion and political rights, tenure, and sectoral laws.

Our findings are consistent with prior evidence that the scopeof FPIC is strongly shaped by the prevailing national political econ-omy, and the framing of indigenous identity and political rightswithin it (O’Faireallaigh, 2008; Szablowski, 2010). All three of ourcore case study countries provide formal legal recognition for‘indigenous’ or customary entities. This would appear to create areceptive context for FPIC for indigenous peoples as a recognizablesocial category. However, as previously discussed, land laws setthe terms for FPIC more explicitly by dictating the power of indige-nous peoples to grant consent. The mining experience adds thatland rights may excise certain resources, such as sub-surface min-erals, from customary control. Similarly, property rights over storedforest carbon, the targeted resource in REDD+, are yet to be deter-mined. Although closely linked to land and forests, the possibilityof distinct property rights to forest carbon has been contemplated(Mahanty et al., 2013). The PNG and Canadian cases show that,where indigenous groups lack rights to the specific resources tar-geted in an intervention, FPIC may culminate in negotiations overbenefit distribution and impact management rather than consentper se (O’Faireallaigh, 1995).

The question of ‘who counts’ is typically neglected in FPIC dis-course, with important implications. Land laws can play a crucialrole in determining who participates in FPIC processes, since cus-tomary or indigenous custodianship of land is often predicatedon the existence of a recognized representative body. These rep-resentative bodies are then targeted in FPIC processes for miningand forest certification, and the same is contemplated for REDD+(Anderson, 2011; UNREDD, 2013). Yet the political and social com-plexity of customary representative bodies needs to be recognized.The more valuable a resource, the more fraught the delineation ofspatial and social boundaries becomes, from relatively high stakesin mining to lower stakes in forest certification. Loose social andtenure boundaries suddenly gain great meaning and can be a flash-point for conflict. Thus, attention is needed to the most appropriatebasis for delineating social and spatial boundaries in given contexts,and the inevitable ambiguities that such boundaries may hold. Interms of the Equity Framework, ‘who counts’ may arguably havemore significant implications for benefit distribution than prescrip-tive FPIC procedures. At the most fundamental level, FPIC as a tool toreinforce property rights is of little use to stakeholders who lack tra-ditional and historical claims, and in fact may serve to marginalizethem further.

Conversely, the time consuming process of formalizing custom-ary land claims can result in many unresolved land claims, as seenin Brazil and PNG, which also affect FPIC. Uncertain tenure compli-cates the delineation of target groups for FPIC. In the case of forestcertification, certifiers have tended to avoid areas of conflict such aspublic lands in favor of private lands and plantations, reinforcinginequities in market access. National frameworks, including dis-tribution of tenure rights, in this way determine the impetus (orlack of impetus) for FPIC. This is likely to be even more pertinentin REDD+, given the UNFCCC’s emphasis on national-level REDD+governance and accounting and the channeling of results-basedpayments through national governments.

The table shows that sectoral and environmental laws also shapeFPIC by setting out requirements for consultation prior to the grant-ing of government approvals for mining projects or certified loggingconcessions. As yet there are no examples of parallel national legal

frameworks for REDD+, but two challenges emerge for nationalREDD+ architecture. First, as a long-term intervention, REDD+, likemining, will need to address the need for more flexible and ongo-ing processes of review. Second, the ability for disaffected parties

414 S. Mahanty, C.L. McDermott / Land Use Policy 35 (2013) 406– 416

Table 3National laws and policies on indigenous peoples, land, mining and forestry that influence FPIC.

Country Indigenous peoples Land Mining Forestry

Papua New Guinea Majority indigenouspopulation; constitutionsupports cultural,commercial and ethnicdiversity and traditionalvillages and communitiesas viable units of society(Articles 3 and 5)

Land Groups IncorporationAct (LGIA) 1974 (amended2012) guides creation andoperation of customarylandowning groupsLand Registration(Customary land)(Amendment) Act 2007enables registration ofcustomary title by ILGs

Sub-surface mineralsowned by the state, butcustomary land owners’have a right to consultationon extractive industriesthrough “DevelopmentForums”, used to developbenefit distributionagreements; Legislatedrequirement for ‘socialmapping’; no right of veto

Not included as case study

Canada Indian Act recognisesindigenous peoples bydescent

Under Treaty No. 6 andIndian Act, indigenouspeoples relinquish landrights to the Crown, inexchange for reserves andvarious forms ofcompensation for use andmodification of reservelandsIndian Act guidesimplementation of this1982 CanadianConstitution Act recognizesand affirms aboriginalrights

Mining legislation isprovincial, but socialassessment operates undernational EIA regime, whichrelegates consultation toprovincesFrequent controversy overappropriate level/form ofconsultation, resolvedthrough case lawNo right of vetoVoluntarycompany-communityImpact and BenefitAgreements

British Columbia: 97% offorests are publicly owned,with most under disputedindigenous claimsThe case of Delgamuukwversus British Columbia(1997) and other courtcases have strengthenedindigenous land andresource rights, includingtimber, although resolutionof indigenous claims hasbeen slow

Brazil 1988 BrazilianConstitution: Article 231states that Brazil’sindigenous peoples have aright to their culturalidentity

1988 BrazilianConstitution: Article 231states that Brazil’sindigenous peoples landrights have precedenceover others. Article 67

cationitorieslfilled

Not included as case study Proof of ownership and/orconcession rights requiredfor timber harvest

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o pursue justice through the court system will be important,iven inevitable imperfections in the design and implementationf sectoral laws. Our case study of mining in particular highlightsow the mere existence of indigenous rights and tenure far fromuarantees the integrity of FPIC processes. The pervasive power dif-erentials between indigenous peoples and companies and stateshat are eager for mining royalties has produced many examplesf tokenistic FPIC processes. In such contexts, judicial recourseas proven important in both developed (Canada) and developingPNG) countries.

Overall, our analysis of national level influences on FPIC high-ights an important conundrum. Effective FPIC is arguably mosteeded in areas where communities lack full legal rights and capac-

ty, yet these are the contexts where FPIC is most difficult tomplement. This has sparked debate and controversy within the for-st certification community about whether certifiers should engageith these difficult cases to produce improved but less than full

PIC, or whether they should exclude all cases where the achieve-ent of FPIC is equivocal (e.g. Colchester and Ferrari, 2007).Different forest certification schemes have approached this

onundrum in contrasting ways. Firstly, the PEFC-endorsed schemen Brazil has focused only on privately owned plantations in regions

ith high poverty and highly unequal, but relatively undisputed,and tenure. In this way requirements for FPIC are largely by-passed,hough arguably at the expense of landscape-level equity. In BC, rel-tively flexible certification standards have enabled PEFC-endorsedchemes to certify publicly owned forests with disputed tenure. Inoth Brazil and BC, non-profit certifiers have played a central role

n applying the more stringent FSC standards for FPIC in naturalorests. Thus assessing the role of certification in shaping FPIC andocial equity requires careful consideration of its multi-level gov-rnance, from the global dynamics driving competing schemes, to

of all by

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national-level standard-setting processes, to the selection of certi-fiers and their role in interpreting and implementing FPIC in specificcontexts.

In terms of the procedural equity of FPIC, our research high-lights how the timing of FPIC and monitoring of agreements canplay a critical role in equity outcomes. While certification involvesongoing audits and re-assessments, FPIC occurs only at the start ofmining projects without the same incentives for ongoing attentionto FPIC. The certification approach of ongoing audits to maintainaccreditation allows more scope for FPIC to support ongoing nego-tiation in long-term interventions, and is therefore relevant to along-term intervention such as REDD+. However, the role of FPICat the planning and financing stage of interventions may also be sig-nificant as it is often here that the scope and design of interventionsis established.

On distributive equity, where local actors hold property rights,FPIC policies are being actively used to provide a forum to negotiatebenefits, compensation and the management of impacts, creating apotentially strong nexus between FPIC and distributive outcomes.This was observed in several PNG and Canadian mining cases.Where tenure rests with the state and/or local claims are unrecog-nized, FPIC has played a smaller to negligible role in shaping benefitdistribution.

In the forest sector, the distribution of benefits from certificationdepends in part on whether or not the forest operation is indige-nous or community-owned. If not, the limited available researchsuggests that the most important perceived benefits of certifica-tion for indigenous peoples are access to forestry decision-making

processes and assistance with land and resource claims. On theother hand, for indigenous and community-owned operations thecosts and capacity demands of certification can serve as barriers tomarket entry.

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These early lessons from international FPIC standardizationn both the mining and forest sectors are of clear relevance toewer institutional arrangements for FPIC. With REDD+ spurringidespread concerns over the dispossession of the lands and

ivelihoods of indigenous peoples and other vulnerable local popu-ations by more powerful actors seeking financial profit, FPIC isften embraced as a panacea. UNDRIP, and by implication FPIC, isow explicitly incorporated among the “safeguards” included inNFCCC REDD+ text (UNFCCC, 2011). Furthermore, a wide rangef funding institutions and forest carbon certification schemes arelready applying their own safeguards and standards for FPIC toEDD+ interventions at national to local levels (McDermott et al.,012a).

In sum, our analysis highlights the need for a realistic approacho FPIC’s potential and challenges in these new FPIC regimes. Miningnd forestry experience support the importance of “good practice”articipatory approaches to FPIC, but also show that even the best

mplementation cannot address many contextual factors at theacro (legal and political rights) and micro (socio-political dispar-

ties) level. It is relatively easy for those making and implementingolicy to focus on FPIC as an instrumental process and similarlyuch of the FPIC in REDD+ discussion tends to revolve around

rocedural questions (e.g. Anderson, 2011). However, if contextualactors that influence meaningful participation are ignored, such aocus can serve simply to legitimize inequitable power dynamicsnd outcomes.

Meanwhile, many UNFCCC decisions regarding the governancend finance of REDD+ remain unresolved. Our case studies in theining and forest sectors have allowed us to contrast a ‘safeguards’

pproach (mining) with a market-oriented or “additionality”pproach (forest certification), both of which are pertinent forEDD+ where international investment safeguards are as relevants emerging social and environmental standards for saleable car-on credits. This comparison affords more nuanced insights on howritical choices about FPIC governance, scope and implementationan shape social equity. Overall, it suggests that both finance-drivensafeguards) and market-oriented (additionality) approaches mayontinue to play an active role, but neither are substitutes for ongo-ng national and local efforts to define and secure an equitableistribution of forest rights and benefits.

onclusions

The Equity Framework informing this research (McDermottt al., 2012c) has exposed dimensions of FPIC that are not oftenonsidered. Previous studies have focused relatively selectively onegal frameworks, procedural issues and/or benefit distribution. Inontrast, systematic analysis with the Equity Framework has pro-ided a more comprehensive assessment of FPIC as a tool for socialquity. In particular, it highlights the importance of understandingow the parameters for particular FPIC policies have been set, ‘whoounts’ in these policies and why, i.e. whether FPIC policies shouldequire a fundamental restructuring and resolution of rights to landnd resources or be used more as instrumental tools to facilitateegotiated agreements on a project-by-project basis.

In general, the complex social, economic, political and cul-ural contexts in which FPIC is undertaken strongly influences itsroximate goals, processes and distributive outcomes. Hence FPICannot be panacea for the social risks inherent in land use inter-entions, be they commercial resource extraction or conservationctivities such as REDD+, given the many intervening factors that

etermine its scope, procedures and outcomes.

A key challenge for future FPIC remains the architecturef FPIC policies in terms of key decision points and monitor-ng/enforcement systems. Such provisions may vary depending

se Policy 35 (2013) 406– 416 415

on whether private, public or international actors are involved.Regardless, experience with FPIC to date highlights the value ofongoing monitoring processes, which were much stronger in for-est certification compared with the front-end approach to FPIC inmining.

Applying FPIC to new global initiatives such as REDD+ presentsa new challenge at an unprecedented scale. It is critical that actorscontinue to learn from previous efforts, even if the internationaland national frameworks differ across sectors, and between extrac-tive and conservation activities. In particular, the mining and forestcertification cases demonstrate the significance of wider contex-tual issues that shape equity outcomes at project levels, as wellas the importance of which institutional actors are responsible forits implementation (e.g. multi-lateral funding agencies, nationalgovernments, NGOs and/or certifying bodies). Addressing FPIC at anational scale, as envisioned in REDD+, will require a much longertime frame, flexible methodologies and participatory learning thatrecognizes multiple ways of understanding and governing change.

Acknowledgements

Initial work for this paper was undertaken with the project ‘Safe-guarding local equity as global values of ecosystem services rise’(NE/I00341X/1), funded with support from the Ecosystem Servicesfor Poverty Alleviation Programme (ESPA). The ESPA programme isfunded by the Department for International Development (DFID),the Economic and Social Research Council (ESRC) and the NaturalEnvironment Research Council (NERC), as part of the UK’s Liv-ing with Environmental Change Programme (LWEC). The viewsexpressed here are those of the authors and do not necessarilyrepresent those of the funders, the ESPA Programme, the ESPADirectorate, or LWEC. We thank two anonymous reviewers for theircomments.

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