The Free, Prior and Informed Consent in Indigenous Peoples and Business Activities

In recent months, the independent press of Taiwan has admirably stayed on a story that has largely shied away from a forensic public probe. The construction of Taiwan’s largest solar farm in Taitung on the customary lands of the Katratripulr (卡大地布 or 知本里 after the locality) of the Pinuyumayan (卑南族) indigenous peoples, one of the 16 indigenous groups officially recognised to date by the government.

On the surface, the solar farm project on the Zhiben (知本) wetlands benefits rural community development in a region of Taiwan where economic prosperity has lagged. The project is billed as helping Taiwan’s transition to clean energy and a win for local economic development.

Amidst all the seeming pluses on the environmental front, articles by the New Bloom in  September 2021, July 2021 and May 2021, Public Television Taiwan in September 2021, August 2021, December 2020, The Reporter in February 2020 and The News Lens in June 2019 have persistently called out that the proposed construction is mired in controversy over the issue of consent from the indigenous peoples who have a customary claim to the land.

These reports detail how the project progressed in such a way that sheds an uncomfortable light on President Tsai Ing-wen’s landmark apology in 2016 that acknowledged past wrongs against the indigenous peoples in Taiwan. They highlight how difficult it is to translate words of contrition into sound operational guidance in Zhiben, even with the legal framework of the Indigenous Peoples Basic Law (原住民族基本法) and the 2016 Guidance on Consultations to Obtain the Consent of Indigenous Peoples Consent and Participation (諮商取得原住民族部落同意參與辦法).

UN Declaration on the Rights of Indigenous Peoples

Because of its green veneer, the Zhiben solar farm project can mean different things to different people. Nevertheless, at its core, the project epitomises the importance of protecting the rights of indigenous peoples. These rights are set out in the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Important in UNDRIP is the principle of FPIC, for “Free, Prior and Informed Consent” (自由,事先和知情同意) to safeguard indigenous peoples’ rights, especially in the context of business activities, with the following three criteria:

• For the consent to be meaningful, it must be given freely and voluntarily, without any coercion, intimidation or manipulation.
• To prevent rubberstamping, consent must be sufficiently sought well in advance of any authorization or start of activities, meaning that consultation must be integral to planning. It is too late to seek consent only at the point when approval is necessary.
• An informed consent refers to the nature and quality of the engagement with indigenous communities, including the quality of the information provided as part of the engagement process.

“FPIC is about giving Indigenous Peoples and their communities the autonomy to decide what development means to them and how they want to develop,” elaborates Researcher Wangui Kimotho, PhD candidate at the Institute for Business Ethics, University of St. Gallen in Switzerland and an experienced business and human rights practitioner from Kenya, who has worked with indigenous communities, civil society organisations and the UN.

“FPIC is the full disclosure of project type, scale, impacts. It is a prerequisite; and so is the civic space for the community to make the informed decision.” Kimotho pauses before adding, “Finally, businesses and their supporters must learn to accept and respect these decisions.”

The centrality of FPIC in the protection of indigenous peoples is such that consent resides with them. This means that the principle of FPIC includes the right to give and withhold consent, but also to rescind consent if it was obtained in a way that did not meet the criteria of free, prior and informed.

This is the controversy surrounding the consent reportedly obtained from the Katratripulr in Zhiben, Taitung, in 2019. The final vote tally for the project was close, 187-173 with only 14 votes separating supporters and opposers in the indigenous community. Allegations of irregularity, however, abound with suspicions of vote-buying and manipulation of outcome based on voter eligibility and proxy voting. All these reports are doubts on the integrity of the FPIC process and undermine the legitimacy of the consent given.

Instrumentality of identity

There is a chapter of Taiwan’s history that needs true reconciliation on how indigenous peoples were systematically objectified, maligned, marginalised and dispossessed of their land. A tattered thread in the global tapestry of systemic discrimination faced by indigenous peoples that has resulted in the necessity of UNDRIP as an international legal instrument of “minimum standards for the survival, dignity and well-being of the indigenous peoples of the world [emphasis added in italics]” (article 43).

But perhaps the most disquieting, for one looking in and seeing parallels in the international context, is the instrumentality of indigenous peoples and their Austronesian migratory past when it comes to the narrative of what sets Taiwanese identity apart. It is political utilitarianism based on appearance but overlooks genuine dialogue and respect, a sentiment echoed by one Indigenous Taiwanese abroad as, “We are not puppies, we are who we are.”

While indigenous histories and cultures serve a political purpose, yet all too often business projects go ahead without the procedural steps necessary to guarantee respect for the principle of FPIC. That Taiwan’s Orchid Island, home to the Yami (or Tao; 雅美 or 達悟族) indigenous peoples, became the storage ground for nuclear waste without community’s knowledge in 1982 is a case in point. There simply cannot be another rinse and repeat of the Orchid Island travesty.

However, if global development is anything to go by, this will not be easy. Worldwide, indigenous peoples are targeted for efforts to protect their environment. A Global Witness report recently highlighted that indigenous peoples were the target of five out of the seven mass killings recorded last year, with true figures likely to be higher due to underreporting.

Things that matter

The persistent focus by independent press on the infringement of indigenous people’s rights in the context of business activities provides a glimmer of hope that FPIC eventually can be meaningfully operationalised in Taiwan — a rally cry that can potentially put in corrective actions to a President’s historic words of contrition.

The simple truth is that without the obligation to respect the principle of FPIC in the law and operationalised by all levels of the government and embedded in corporate governance, there is little meaningful protection of the rights of indigenous peoples, who are often sidelined in the decision-making process concerning matters of their land, culture and livelihood.

If indigenous rights matter for their own sake, not for what they serve Taiwan, but for what we believe as truly an integral and unique component of Taiwanese identity – our imaged nation of rights, then FPIC must be meaningfully implemented for the Zhiben solar farm and all similar projects. Courses must be altered. Mistakes owned. And we guard the things that matter.

* The author thanks FPIC and corporate responsibility expert F.P. for useful discussions.

(Feature photo by the Office of the President, Republic of China (Taiwan), CC BY 2.0)