The third session of the Forum explored the nature of FPIC (Free, Prior and Informed Consent) and how it fits into the Mekong landscape, using case studies from a Vietnamese coffee project, and a company seeking land for eucalyptus plantations in Lao PDR.
 

Presentation 1

Free, Prior and informed Consent (FPIC): Concept, Approaches, and Recommendations

Lay Khim (Regional Extractive Industries Program Coordinator, Oxfam)

Lay Khim laid out an understanding of FPIC as a frame for the session. FPIC applies to 260 million indigenous peoples living in Asia, the majority of whom reside in the Lower Mekong Countries. These peoples have distinctive relationships with land, water, and other resources. But there is a risk that investment projects will undermine their traditional livelihoods.

Most countries in the Mekong region have adopted international conventions such as UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples), and CBD (Convention on Biological Diversity). Together with FPIC, these can operate to the benefit of local communities and investment projects.

The process implies four components:

By its nature, the process should be led by the community. Where FPIC does not take place, there is a risk of conflict, which has costs for all sides. Conflict can emerge from a lack of respect to the rights of communities, loss of land and resources, and damage to these resources. Cases of conflict call for appropriate redress mechanisms, such as compensation. According to Lay Khim, FPIC is possible and does not have to be complicated, so as a process it should not be approached with trepidation.

A series of recommendations were put forward on behalf of Oxfam:

• There should be a policy commitment to implement FPIC by all actors.

• In applying FPIC, there is a key series of steps and processes. This includes not only the reaching of agreements, but also subsequent monitoring and evaluation.

• There should be a code of conduct for company staff working with and around local communities. This can include showing respect to build trust, cultural sensitivity, and the maintenance of safety and security.

• There can be more investment into social development to obtain FPIC, reflecting the need to demonstrate commitment and a will for success.

• A broader partnership between government, the private sector, and civil society can create a policy environment to assist the implementation of FPIC.

Presentation 2

CAFÉ-REDD Project @ Mekong Regional Land Forum 2021

Nam Pham (Project Manager, SNV)

Nam Pham presented the case of a coffee project in Vietnam to demonstrate the use of FPIC. The aim of the project was to reduce carbon emissions through deforestation and forest degradation, where coffee agro-forestry could help enhance forests. The project was implemented by the Dutch NGO SNV, together with the Department of Agriculture and Rural Development. It took place in Lam Dong Province in the Central Highlands of Vietnam, not far from Dalat City. The local district comprises 85% forest (including a National Park and Protection Forest), with the rest of the land used for agriculture and settlement areas. 10 villages were involved, who are members of the K’ho ethnic group.

FPIC is not new to Vietnam. It has been piloted for 11 years already. What we see here in this case is a public-private-producer partnership, looking towards sustainable forest management and land use. FPIC acts as a practical means to address potential points of conflict and ensure the continued customary use of land in state forest areas. It acts as a social safeguard and can be used to achieve effective forest conservation and landscape restoration.

For this case, there are four project phases which include FPIC:

• Project design, building in environmental and social safeguards.

• Early implementation, conducting an assessment and creating management plans.

• Initial FPIC, conducting participatory land use planning with the community, and creating conservation agreements.

• Ongoing FPIC, developing forest co-management mechanisms, and working with forest authorities to understand the social safeguards in place.

The project helps build an improved landscape of governance between the different actors, with an increased awareness of rights, and also an increased motivation to support and participate in forest preservation efforts. The process took place at low cost, creating accountability, transparency, and building trust. Supporting technology, such as land mapping using drones, was also extremely useful.

Presentation 3

Establishing Plantations in Production Forest Areas (PFAs): Learnings from Community Consultations in Phou Yeuy PFA

Francois Guegan (Land Manager - Burapha Agro-Forestry)

Guegan introduced the approach of the Burapha Agro-Forestry company. This is a Lao-Swedish company based for several years in Vientiane. They are involved in tree plantations in order to feed pulp mills. The presentation looks at the consultation processes used by the company with local communities.

The company is looking to expand eucalyptus plantations to cover 60,000 hectares. This would be on state land (as is the case of Lao PDR), particularly with the aim to restore degraded forest areas in Production Forest Areas (PFAs). Current practices in the land area of interest involve rotational rice and cash crops, with some permanent areas of paddy and rubber cultivation.

To acquire land is a complex process. Burapha undertakes two forms of assessment, with the aid of drone imagery. Firstly, they assess land cover, only selecting degraded and barren lands that are not on steep slopes. This process is FSC-compliant. Secondly, they look at land use, and will not develop areas that are used for permanent agriculture, are under practices of agroforestry, or have cultural significance.

Community consent is sought. It is seen as essential to have community support, as this will limit the risk of conflict in the venture that could impact upon its success. The FPIC process takes place through extensive consultations on a multi-stakeholder basis. This can last one to three months, involving multiple visits to the site, open feedback and hopefully resulting in a community-wide approval. However, it is also important to acknowledge that each household is different, and so individual views must be balanced against community consensus.

“strong community support = safe investment”
 

Panel discussion

The moderator for the discussion was Marianna Bicchieri (Land Tenure Officer, Food and Agriculture Organization of the United Nations - Regional Office for Asia and the Pacific). Bicchieri asked the panellists for their reflections on the presentations, and some perspectives on FPIC from their respective countries.

Uy Kamal (Deputy Director General of General Directorate of Environmental Knowledge and Information, Ministry of Environment, Cambodia) noted how Cambodia has recently completed their test run for a REDD+ program. He sees the value in aligning FPIC with REDD+, representing an opportunity to support small-scale agricultural systems.

Mr. Khitlaxay Kokmila (Deputy Director General, Department of Land, Lao PDR) compared FPIC with the process of land registration in Lao PDR. He agreed that village meetings are needed for informing villagers about project objectives, with the need for different meetings to engage with different interest groups (e.g. village heads, women).

Nguyen Dzung (National Project Coordinator, Sustainable Forest Trade – FAO) agreed with the three presenters on the importance of FPIC as a mechanism to protect the rights of communities and avoid conflicts once a project is implemented. In Vietnam, FPIC is aligned with the policy and legislative framework. He experienced it directly during the implementation of a REDD program ten years ago. For him, it should be a process that is concise, easy to understand, relevant to the local context, and without high expectations. If not carefully planned, it may become a lengthy and costly process. FPIC can now contribute to the implementation of REDD+ plans. 

During a series of questions, Lay Khim was asked about the appropriate entry point to deal with investors. He spoke about the experience of adopting different approaches. Some companies apply to work with international standards and embrace the concept of FPIC. Others are more reticent in their practices. Some companies want a fast approach. Yet the key remains gaining consent, and this involves true negotiation.

There were also questions about whether communities refuse to give their consent. Nam Pham emphasized the fact that FPIC is an ongoing process, in their case involving a two-year process, and so will operate in stages to address several issues. Francois Guergon acknowledged that if a community says no, Burapha does not walk away. They continue consultations and try to understand the issue in greater depth. However, if at the end of the day, the community still says no, they will walk away. Although it is possible that by implementing a project in neighbouring villages, the community might once again become approachable.

Key Takeaways

Femy Pinto (Executive Director at NTFP-EP Asia: Non-Timber Forest Products-Exchange Programme Asia)

1. FPIC can be perceived as a challenging process, and a lack of clarity in its presentation and policy integration may contribute to this. However, the use of FPIC can be vital to avoid conflicts.

2. Consultations must take place in good faith and need time to work. There are good cases upon which we can build.

3. Meaningful engagement is needed instead of FPIC being used as a box-ticking exercise.

4. An enabling policy and business environment can facilitate the application of FPIC. There are various existing entry points to achieve this, whether at national or ASEAN levels, or those organizations such as MRLG.

5. Civil society and communities need to increase their capacity and knowledge on FPIC so that they can lobby for effective implementation. Other organizations and platforms can help them in this process.

Check further details on the 3rd Mekong Land Forum.