Free, Prior and Informed Consent and the Round Table on Sustainable Palm Oil: are the companies keeping their promises?
The right to Free, Prior and Informed Consent (FPIC) in the Round Table on Sustainable Palm Oil (RSPO) Principles and Criteria establishes how equitable agreements between local communities and companies (and governments) can be developed in ways that ensure the legal and customary rights of indigenous peoples and other local rights-holders are respected. From March to October 2012, timed to coincide with the RSPO Principles and Criteria Review, Forest Peoples Programme and its local partners undertook a series of independent studies of oil palm plantations across Southeast Asia and Africa. The purpose of these studies is to provide detailed field information on how and whether rights to land and to FPIC are being adequately respected by companies, to expose any malpractice of palm oil companies, and to argue for a strengthening of the RSPO procedures and standards where necessary.
The findings of the case studies show that insufficient information is being provided to local communities regarding the social and environmental impacts of oil palm development on their livelihoods and their access and use of land. In many cases, information that the companies shared with local communities is partial and biased, with promised benefits and advantages of the development overriding potential negative aspects on local communities’ livelihoods, environment and land rights.
Effective participation in decision-making for local communities is hampered by lack of adequate information shared sufficiently in advance of developments on their lands. Companies and governments sometimes claim that respect for the right to FPIC is not applicable until the net land area is identified and before final permissions for land use have been obtained. This can be well after the initial concession agreement is concluded, thereby placing local communities in a position of considerable disadvantage. In such cases, communities’ leverage in any subsequent negotiations is substantially weakened.
In many cases, the right to FPIC is equated by companies with ‘socialisation’, or consultation with local communities, which tends to be limited to companies informing the communities of the developments that will take place on their land, rather than seeking their consent to these developments. Where carried out, consultations by the companies with local communities tend to be one-off meetings rather than an iterative process of dialogue, discussion and negotiation, meaning that communities are not given sufficient time to take in, reflect upon, and make decisions collectively regarding the companies’ operations.
Lack of clarity over the role, jurisdiction and responsibilities of various governmental bodies leads to confusion over who is responsible for the supervision, monitoring and sanctioning of company activities. In some cases, this results in a situation where different State bodies and companies tend to ‘throw the ball back’ to each other in terms of their respective responsibilities, and a reluctance on the part of companies to challenge the authority of the State over land tenure and land rights under national laws. Where legal contradictions exist between and within national and international laws, companies and the government lack initiatives to identify and remedy these through legal reform or other means.
Interaction between companies and communities is often restricted to village representatives, such as village heads, without wider consultation with the broader community, or with all the affected communities. Elite co-optation is leading to decisions being made over the heads of communities, whereby they find themselves faced with a fait accompli. Land conflicts of varying degrees of gravity are ongoing, and while certain companies have developed mechanisms to resolve these conflicts, the focus on the establishment of conflict resolution processes, rather than on the actual practical efficiency and outcomes of conflict resolution, is resented by local communities, who want change on the ground not paper policies.
The findings reveal that the RSPO procedures are being flouted by companies that are not taking the requisite steps to recognise customary rights and are instead resorting to highly abbreviated processes to secure consents, which are far from being ‘free’, ‘prior’ and ‘informed’. The proliferation of, sometimes violent, conflicts over land in numerous oil palm plantations across the globe is a vivid manifestation and outcome of the violations of local communities’ rights. The ongoing expansion of oil palm across the Global South only strengthens the need for robust standards and ground-level monitoring, to ensure that the rights of indigenous peoples and local communities are respected and their needs met.
Even where companies seek to acquire lands in fair ways, current statutory laws and administrative procedures with respect to land rights, land acquisition, legal personality and representation, make it hard or even impossible for companies to comply. Widespread, effective and equitable compliance with the RSPO standard depends on good governance, transparency, accountability, rule of law and access to justice. If land allocations are made in ways contrary to these principles, there are bound to be serious obstacles to the RSPO approach.
• The case studies will be published as an edited volume during the course of 2012 (Colchester M & Chao S (eds) Conflict or Consent? The Palm Oil Sector at a Crossroads. FPP & SawitWatch, Bogor, Indonesia.)
• Key findings and recommendations will be published as a brochure in October 2012 for the 10th Annual Meeting of the RSPO.
 Colchester M 2010 Free, Prior and Informed Consent: Making FPIC work for forests and people. The Forests Dialogue, School of Forestry and Environmental Studies, Yale University. http://environment.yale.edu/tfd/uploads/TFD_FPIC_ResearchPaper_Colchester_lo-res.pdf
 The partner organisations are: SawitWatch, HuMa, Gemawan Institute, Yayasan SETARA Jambi, Walhi Kalteng, Walhi Kaltim, Walhi Kalbar, Pusaka, Jaringan Orang Asal SeMalaysia (JOAS), Green Advocates, Centre pour l’Environnement et le Développement (CED), Association OKANI and Actions pour les Droits, l’Environnement et la Vie (ADEV).