Consent Workshop: Realizing Rights Through Informed Action

1. LIVING THE RIGHT OF CONSENTby Georgine Kengne DjeutaneWoMin (AfricaN Gender and Extractive alliance)

2. Goal of the workshop The main goal of the workshop is to explore what we mean by consent on a free, prior, informed and continuous basis and consider how it is provided for in law, protocol, and customary law; discuss HOW this right lives in practice and in struggle through concrete example; and to explore the constraints and opportunities to realising this right

3. 3 Articulations of the workshop The session is composed of 3 articulations: • Presentation on consent/rights to say no – how it is defined and the basis upon which it can be argued for and claimed • Sharing of concrete examples about how this right is being conceptualised and claimed in living practice • Exploring constraints and opportunities – unequal power, political economy, and women’s rights in patrilineal communities – and opportunities – organising for FPIC in law, unifying demands across multiple constituencies, and strengthening alternative concepts of development

4. how it is defined and the basis upon which it can be argued for and claimed In FPIC each word contributes meaning to the other. Freemeaning that there must be no coercion, intimidation or manipulation by companies or governments, and that should a community say ‘no’ there must be no retaliation.  Priormeaning that consent should be sought and received before any activity on community land is commenced and that sufficient time is provided for adequate consideration by any affected communities

5. Informedmeaning that there is full disclosure by project developers of their plans in the language acceptable to the affected communities, and that each community has enough information to have a reasonable understanding of what those plans will likely mean for them, including of the social impacts they will experience.

6. Consentmeaning that communities have a real choice, that they can say yes if there is a good flow of benefits and development opportunities to them, or they can say no if they are not satisfied with the deal, and that there is a workable mechanism for determining whether there is widespread consent in the community as a whole and not just a small elite group within the community. from Oxfam publications

7. An FPIC process should be mutually agreed in advance, respect local customs, and be documented. Community FPIC protocols can clarify expectations in advance • FPIC needs to be maintained through repeated FPIC processes prior to significant changes, and through an effective grievance mechanism in case of any breaches of agreement • Is a collective rights which should involve all members of the communities

8. basis upon which it can be argued for and claimed International hard and soft law, national law, industry standards and individual company policies are increasingly incorporating specific requirements to seek the consent of indigenous peoples prior to undertaking certain activities likely to harm their traditional livelihoods and cultures.

9. FPIC is established as a basic right under international law • It derives primarily from the right to self-determination, which is affirmed in international human rights treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights • FPIC is integral to the exercise of the right to self-determination by indigenous peoples, which includes the right to freely pursue economic, social, and cultural development and to freely dispose of natural wealth and resources. Cf. Emily Greenspan OXFAM America publication

10. The principle of FPIC is enshrined in international hard and soft law, notably the legally binding International Labour Organisation Convention 169 on Indigenous and Tribal Peoples (1989) (ILO 169). establishes indigenous peoples’ right to be consulted when development projects would affect them. Article 6 of Convention No. 169 notes that consultations must be carried out through appropriate procedures using indigenous peoples’ representative institutions • the non-legally binding but influential and universally supported UN Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP). • other international human rights treaties • African Union (Pan African parliament (PAP) – ACHRPS • ECOWAS – African mining vision • Customary law • Agreement with land owner

11. 3. Oher international human right treaties a. One multilateral treaty that has been interpreted as requiring FPIC for communities that are non-indigenous (in addition to those that are indigenous) is the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR). ICESCR calls on States to recognize rights such as the right to health, to education, to participating in cultural life, and to maintaining an adequate standard of living (including housing).

12. problems Despite the existence of many policies and guidelines, the implementation of consent provisions by numerous states is weak and public participation in decision-making remains problematic. Women are almost always excluded from decision-making in their communities, especially when it comes to large mining and infrastructure projects, which affect family and commonly held land rights.

13. How we work with communities to claim consent right • consent is an ongoing and revolutionary act that empowers communities to claim their development sovereignty against States and Corporates, and democratises decision-making about development within communities and beyond. • We work with communities and organisations in Burkina Faso, Madagascar, Senegal and South Africa to research, build and advocate for an African feminist concept and practice of the democratic right of consent, deeply rooted in development alternatives to extractivism, and grounded in a highly democratic and women-inclusive process of research and decision-making.

14. madagascar In Madagascar, WoMin supports the Mikea indigenous group, known to be among the poorest in the world, in their struggle against the Toliara Sands project. The Mikea, who are recognised as ‘indigenous peoples’ by the World Bank, have little access to medical care, education and no voice in regional and national politics. They rely on land and forest resources to sustain themselves. In addition to the Mikea indigenous people, the mining project will affect approximately 130,000 people living around the Mikea Forest, threatening major water sources like the Manombo River. As defined by Operational Directive 4.20 of the World Bank

15. Burkina faso In Burkina Faso gold has supplanted cotton as the country’s major export product. Since 2012, Burkina Faso has been the 4th largest producer of gold in Africa. WoMin supports communities’ organising and awareness-raising in Bomboré, where a major deposit of gold was recently discovered. Canadian company, Orezone will operate the project which covers 162 square kilometres. At least six villages where people subsist on agriculture and livestock production will be affected and approximately 12,000 people will be displaced if the project goes ahead.

16. senegal In Senegal, the Sendou coal project started in 2008 without properly consulting the more than 45 000 members of the fishing community who will be directly impacted by it. The fish-processing activities of about 1 000 women are under threat by physical displacement and the disposal of thousands of litres of cooling water into the sea on a daily basis. WoMin is supporting women and men fishers to protect their livelihoods and way of life. The Sendou project is funded by the African Development Bank (AfDB), the West African Development Bank (BOAD) and the Dutch Development Bank (FMO).

17. Fuleni/south africa In Fuleni, a rural community located in northern KwaZulu-Natal in South Africa, an estimated 16 000 people have been staving off a coal mining project and more recently a mega bridge and expanded road that will traverse a number of villages in Fuleni. Ibutho Coal was granted a prospecting right in April 2009 and completed its drilling in 2012. The company has faced resistance from the outset when farmers refused to allow the equipment onto the land. Women are resisting the mine and demanding safe water and land to sustain themselves and their community.

18. WoMIN’s work with partners in soon impacted communities Our actions are addressing key challenges of securing the right of consent and participation in communitydecision-making for women in regard of the miningproject

19. awareness raising and sensitization activities for supporting women’s participatory rights in regard to community decision • legal empowerment through specific specific training on women's rights, along with support for the protection of their land rights ; Capacity building/training – on consent, constitutional rights, mining code, energy alternatives, AfDB gender policies, advocacy, communications • participatory research with women at the local level to review the legal / customary frameworks and regulations governing land acquisitions and investments, and to document practices on the ground with respect to the land tenure system, women’s land rights and inheritance practices, as well as women’s contributions to livelihoods and well-being at the household and community levels;

20. the advocacy and lobbying activities at the institutional level will also continue in partnership with other ngos and other allies within the civil society to respect community right to consent and accept the other alternative which might be no • Support community processes of Developing an alternative local development counter-proposal from a feminist perspective. Building on the results of the participatoryresearch, the focus willbe on deepeningboth the organising and visibility of women/communityand their perspectives through the development of an alternative local developmentcounter-proposalby the communitythemselves.

21. Thank you very much Merci beaucoup Asante sana Gracias end