Part 1 of two articles that summarize presentations from the IIPWG investor roundtable Indigenous-Defined FPIC: Best Practices for Investment and Corporate Governance. Watch the full video or jump to Part 2: How Investors can Forward Indigenous Priorities for FPIC + Questions from Companies.
Since the right of free, prior and informed consent (FPIC) was enshrined in the UN Declaration on the Rights of Indigenous Peoples in 2007, Indigenous Peoples the world over have defined FPIC protocols for themselves and expanded processes to express their self-determination and create opportunity for their communities. Companies across sectors, however, still lag on operationalizing basic FPIC principles where they identify impacts on Indigenous Peoples’ communities, rights, and territories.
To discuss how to accelerate operationalization of Indigenous-led FPIC protocols, the Investors & Indigenous Peoples Working Group held the roundtable Indigenous-Defined FPIC: Best Practices for Investment and Corporate Governance on June 15.
The working session provided better understanding of Indigenous-defined FPIC and how investors can forward Indigenous Peoples’ priorities through investment and shareholder advocacy. Presented with support from First Peoples Worldwide, a range of Indigenous and investment expertise parsed common questions about FPIC and its integration into corporate practice, such as:
- What are the core values and protocols Indigenous Peoples require in FPIC policy?
- How can shareholders help move the extractive industry and financial institutions to fully integrate Indigenous Rights Risk screening and FPIC due diligence?
- How do companies navigate situations where two or more Indigenous communities don’t align on one course of action?
- How can we create iterative FPIC processes, especially for projects that span generations?
Following a brief presentation about the fundamentals of FPIC (related read: Indigenous Peoples’ Free, Prior and Informed Consent: A Priority for Human Rights Due Diligence), the roundtable led with a discussion on FPIC as both a right, a framework for processes that protect all Indigenous rights, and an expression of Indigenous Peoples’ sovereignty and self-determination.
Karlin Itchoak, Senior Regional Director in Alaska for The Wilderness Society and co-founder of the Imago Initiative, saw many sides of FPIC as a former president of his federally recognized tribal government and discussed how FPIC flows from “the inherent and inalienable right of sovereignty that Indigenous Peoples have had since time immemorial.”
Tracing the recognition of Indigenous Peoples’ sovereignty and self-determination in U.S. law from the Marshall Trilogy in the early 1800s to the Meriam Report and subsequent Indian Reorganization Act of 1934, he noted how the UN Declaration on the Rights of Indigenous Peoples took things much further when it enshrined FPIC as a right applicable to an entire community. While the U.S. endorsed the Declaration in 2010, FPIC itself was specifically omitted in favor of prioritizing consultation, which is often limited to federally recognized tribes and does not hold the higher standards of a consent-based processes.
“It's very complex in terms of operational continuity and putting it into operation, but really it's fairly clear in its mandate that Indigenous Peoples are not only consulted, but they have consent,” Itchoak said.
He shared his experiences with FPIC as chief administrative and legal officer for an Alaska Native Corporation, noting “a lot of synchronicity with shareholder, investment, corporations, entities or donor groups.”
“Native communities are well-versed in corporations. Many of us are shareholders and tribal members. We wear two hats. When corporations are making decisions, we often go through a due diligence process… And it's the same for Indigenous people, except instead of basing [decisions] on corporate values, we're basing it on Indigenous values.”
Kate Finn, Executive Director of First Peoples Worldwide, who moderated the roundtable, emphasized that while there is a process to FPIC, including engagement and dialogue, FPIC is first and foremost a right.
“One of the talking points that I find needs to come through in our conversations with businesses is that tribal nations are governments,” she said. “Indigenous leaders represent governments, they represent communities, and thus have the perspective of the entire community.”
It is here where operationalization of FPIC begins.
A Model for Long-term, Relational Corporate Engagement
For Mark Sevestre, Founding Member and Senior Advisor of National Aboriginal Trust Officers Association, and Joseph Bastien, Inclusive Economy Associate Director for SHARE Canada and the Reconciliation and Responsible Investment Initiative, FPIC is part of the overall equation in engagement with companies that impact or share benefits with Indigenous Peoples.
Sevestre and Bastien work with companies to embed education, understanding, and values from impacted communities to build out a plan for FPIC operationalization. “Our goal with companies is to move towards FPIC operationalization as the next logical step for the company,” Bastien said.
In Canada, companies are aware of the priority to respect Indigenous Peoples’ rights and many are working towards FPIC policy specifically through economic factors that are embedded in action #92 of the 92 calls to action towards reconciliation.
Sevestre pointed to recent success in passing a Reconciliation Action Plan (RAP) inclusive of FPIC with two companies through shareholder proposals. RAPs help companies develop policy that both benefits Indigenous Peoples and the companies themselves and “provide a formal public living document for company commitments, their expectations of relationship development, a pathway that we're going to take action on, clear expectations, and accountability.” They also open companies to the inclusion of Indigenous communities partnerships.
“The consent that we develop with these companies leads to economic opportunity [and] we can fully participate in what's going on in our traditional territories and our lands, instead of being paid off and pushed aside,” Sevestre said. “We really think it's a competitive advantage if these companies engage with [RAPs] and incorporate it into their business plans moving forward.”
Bastien noted what's often missing from the conversation is the role of Indigenous Peoples in implementing FPIC. Because corporations cannot define FPIC for themselves, companies are asked to commit to a co-development process with Indigenous communities to ensure “the community has a role, they have agency, and they're able to dictate what works for them and how they understand it.”
Part of the RAP process involves commitment to enhanced disclosures that are regular, transparent, public, and that demonstrate accountability. Viewed as a leveraging tool rather than an end goal, these disclosures help to understand company impacts on the rights of Indigenous Peoples. They also give investors, asset managers, shareholders, and the impacted Indigenous communities the data needed to make very clear demands for change.
“This is an approach that we feel aligns with our Indigenous values. It's a long-term, relational approach,” Bastien said. “That resilient embedding of Indigenous values and rights and title interest in a company helps us when we're communicating our expectations of a movement towards FPIC operationalization. FPIC operationalization as the goal. We're just in there for the long term alongside the company to get us to that place.”