Consultation and FPIC Beyond Procedural Checkboxes: Indigenous Voices in Environmental Governance
By Ong Min Yi, Shervyn Eng Kia Ngee and Yvette Loo Zhi Yuan, mentored by Rachel Ooi and Elizabeth Wu
I. Introduction
1. In the 21st century, indigenous communities are finally beginning to gain formal recognition of their longstanding roles as customary owners and custodians of their lands and resources, after decades of historical non-recognition. There has been a growing understanding of the importance of including indigenous communities in decision-making processes that directly affect their land and livelihoods, by not only consulting indigenous people in the utilisation of their lands but also ensuring they receive a fairand tangible share of the benefits from such utilisation. This has manifested in the increasing recognition of two participatory rights for indigenous people in both international law and in the domestic laws of various countries: the right to consultation, and the right to free, prior and informed consent (“FPIC”).1
II. The Right to Consultation and FPIC
2. The right to consultation mandates that affected indigenous communities are entitled to enter into dialogue with states or companies about proposed developments or decisions that affect their land,livelihood or way of life - in other words, involvement in the decision-making process. The right to FPIC goes a step further beyond the general obligation to have consent as the objective of consultations, entitling indigenous communities, in certain circumstances, to give or withhold their consent to such decisions.2 Such consent must be obtained without coercion, intimidation or manipulation (“free”), sought sufficiently in advance of the development (“prior”), and the indigenous community must possess sufficient information, including information regarding the nature, size and impact of the project (“informed”).3 These rights are collective, rather than individual, meaning that indigenous communitiesas a whole must exercise these rights, in line with their own traditional decision-making processes and means of communication.4
3. As such, international and domestic laws often require a process of indigenous consultation and/or consent-gaining before embarking on any project that affects indigenous rights. For instance, the United Nations Declaration on the Rights of Indigenous Peoples requires its signatory states to consult and cooperate in good faith with the indigenous community concerned in order to obtain their FPIC before adopting and implementing legislative or administrative measures that may affect them.5 Additionally, in countries with sizeable indigenous populations such as Canada, Australia and New Zealand, there existdomestic legal regimes in statutory, contract and common law that mandate an obligation to consult indigenous people about decisions that concern their land and livelihood.6
4. The right to consultation and FPIC are rooted in the idea of procedural justice, one of the three pillars of the tripartite environmental justice framework often cited in just transition scholarship. Procedural justice is a conception of “justice as participation”, wherein injustice is theorised to be due to a lack ofsocial power to influence or participate in processes ultimately resulting in environmental harm.7 As such, procedural justice refers to the meaningful involvement of affected people in decision-making. For a decision to be procedurally just, the following two requirements should be satisfied: one, community members voice in decision-making should be treated equal to that of project leaders. Second, communities must have the right to informed consent, including the ability to decline participation.8
5. It has been said that “there is no silver bullet to community engagement; participation in meetings does not always translate into real power in decision-making and outcomes. Though indigenous participatory rights have received de jure acceptance and integration into various legal frameworks, this piece argues that both the right to consultation and FPIC have not been appropriately implemented de facto, resulting in the systemic silencing of indigenous perspectives in decision-making and the lack of attainment of true procedural justice.
III. Current Implementation of Indigenous Participatory Rights
6. Environmental governance has, over the past several decades, progressively recognised the importance of involving indigenous people in decisions affecting their lands, territories and natural resources. Legal obligations are increasingly imposed on governments, corporations and internationalorganisations to consult and engage indigenous communities in determining the viability of theirprojects. These developments reflect a growing recognition that environmental sustainability cannot be achieved without respecting indigenous rights.
7. Despite longstanding international commitments, such as the International Labour Organisation Convention No. 169 on 7 June 19899 and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) on 13 September 2007,10 both of which recognised FPIC,11 protection against forced displacement and redress, implementation has frequently lagged behind legal recognition. As demonstrated by projects that make key project decisions and obtain state permits even before consulting indigenous groups,12 it appears that political will is limited and corporate practices have been reluctant to translate these principles into meaningful decision-making power for indigenous communities.
8. Recognising the continuing global deterioration of biodiversity and the urgency for more inclusive environmental governance, at the fifteenth meeting of the Conference of the Parties, the Kunming-Montreal Global Biodiversity Framework (“KMGBF”) was adopted on 19 December 2022.13 Beginning by expressly recognising the role of indigenous communities as “custodians ofbiodiversity and partners in its conservation, restoration and sustainable use”14 and emphasising FPIC and full and effective participation in decision-making in its implementation considerations, the KMGBF went on to set goals involving indigenous communities in various aspects, like having a share of themonetary and non-monetary benefits from the utilisation of genetic resources,15 respecting indigenous rights in wildlife and spatial planning, conservation and management.16 As the KMGBF embeds indigenous participatory rights throughout its provisions rather than treating them as peripheral considerations, collectively, these provisions signal a clear international consensus that indigenous people should be recognised not merely as passive consultees, but as active partners in environmental governance.
9. Nevertheless, a substantial implementation gap remains. Although contemporary international frameworks increasingly embrace FPIC and meaningful participation, domestic environmental governance often continues to reduce indigenous participation to procedural compliance rather than substantive authority.
10. Ironically, such a gap is observed in Australia, a nation that has endorsed the UNDRIP and adopted the KMGBF. Australia’s legal system often prioritises state-led economic development over the authority of indigenous people, therefore allowing for formal endorsements to be overridden.17 Notably, the Juukan Gorge, home to the Puutu Kunit Kurrama and Pinikura/Binigura (“PKKP”) for over 46,000 years, was reduced to a commodity and simply as a means to access iron ore worth $135 million and subsequently destroyed by Rio Tinto.18
11. This event represented a major failure of procedural participation under Western Australia’s heritage laws, which were outdated and allowed Rio Tinto to obtain necessary permits years prior. While PKKP had technically been consulted, they did not possess legitimate legal power to withdraw their consent or veto the destruction. Indigenous participation remained stuck at the stage of simply being informed, without genuine power to influence decisions.
12. Following the destruction, indigenous leaders throughout Australia formed the First Nations Protection Alliance, demanding national legislative reform. However, the subsequent failure of the 2023 Indigenous Voice to Parliament Referendum further demonstrates reluctance to grant the necessary authority to indigenous communities, and the endorsements remain unfulfilled.19
IV. Moving Forward: Real Power Arises from Meaningful and Not Merely Symbolic Consultation
13. At its core, consultation is meant to ensure that decisions affecting indigenous lands and livelihoods are made with due consideration for indigenous communities, and that the projected impacts are moderated to a level that stakeholders are agreeable to. Consultation therefore derives its legitimacy not simply from the act itself, but from the power it confers on indigenous communities to influence projectoutcomes, which is the very issue that continues to arise in contemporary environmental governanceeven after implementation of international and legal frameworks that impose consultation obligations – the reluctance to distribute power has resulted in consultations being merely symbolic participation.
14. To move beyond symbolic participation, we need to go beyond expanding opportunities for consultation and fundamentally restructure environmental decision-making, such that indigenous communitiescan exercise meaningful authority over projects affecting their territories. To carry this out, the following three key components can be explored and modified:
A. The Baseline: Free, Prior and Informed Consent
15. FPIC has become the internationally accepted baseline for indigenous participation in environmental governance. It plays a foundational role in meaningfully including indigenous voices in project decisions that affect their territories. In its full effect, FPIC helps center indigenous communities in such project decisions.
16. Regrettably, in practice, FPIC is often reduced to a procedural exercise. Governments and project proponents frequently focus on obtaining documentary evidence that consultation has taken placerather than ensuring that consent has been obtained through genuine dialogue with real influence onproject outcomes. Consultation therefore ends up diluted, becoming nothing more than a means to legitimise predetermined decisions, instead of truly giving indigenous communities space to shape them.
17. Indonesia illustrates simultaneously the progress that has been made and the limitations that remain. On paper, Indonesia has made significant progress in recognising indigenous rights. The Indonesian Constitution recognises Masyarakat Hukum Adat (customary law communities), while ConstitutionalCourt Decision No. 35/PUU-X/2012 affirmed that Hutan Adat (customary forests) are no longer classified as state forests but belong to recognised indigenous communities.20 More recently, the Indonesian Government has established initiatives such as the Customary Forest Task Force under the Ministry of Forestry to accelerate the recognition of 1.4 million hectares of Hutan Adat by 2029. Government Regulation No. 23 of 2021 further recognises Wilayah Adat (customary territories),21providing a legal basis for indigenous communities to manage ancestral lands and natural resources sustainably.
18. Despite these developments, implementation remains uneven. Constitutional recognition remainsconditional on the process across Indonesian provinces on the recognition of Hukum Adats and Hutan Adats.22 As scholars have observed, there remains no uniform national procedure for identifying, verifying and formalising indigenous communities across different sectors.23 Consequently, recognition is inconsistent and depends on the locality and licensing regime, creating legal uncertainty and allowing leeway for state-approved concessions for logging, mining and agribusiness to intrude into customary territories.24 Although Indonesia formally recognises indigenous rights, FPIC-focused procedures remain underdeveloped within licensing, monitoring and spatial planning processes, leaving little room for express indigenous rights to manifest in real-world outcomes.
19. Whereas the Dayak Hutan Adat system in Borneo has been labelled by academics as a “model for sustainable forest governance”25 and demonstrates that the obstacle is not the absence of workableindigenous governance models. Through Hukum Adat (customary law), Dayak communities manage customary forests by integrating indigenous ecological knowledge, customary legal institutions, community participation, conservation of biodiversity and social justice.26 This model has proven effective in sustainable forest governance. Yet, customary governance continues to be marginalised within national legal and policy frameworks. State-sanctioned concessions for plantations, mining and logging frequently overlap with customary forests,27 undermining customary authority and contributing to deforestation, habitat fragmentation, cultural erosion and land conflicts.
20. Taken together, these examples illustrate that the challenge is no longer one of legal recognition alone. While Indonesia has established an increasingly sophisticated legal framework recognising indigenous rights, and the Dayak Hutan Adat model demonstrates that indigenous-led governance cansuccessfully conserve forests, implementation continues to fall short where governments retain ultimate decision-making authority. The focus on FPIC therefore should shift from the longstanding question of whether consultation occurs, to whether indigenous communities possess genuine authority to approve, reject or contribute suggestions to such projects. Without embedding FPIC into licensing, spatial planning and environmental approval processes, indigenous participation risks being reduced to a procedural checkbox, rather than serving as a meaningful mechanism for protecting foundational indigenous rights.
B. Providing Co-governance to Indigenous Leaders
21. Indigenous communities are rights-holders to their own set of laws and governance systems and have longstanding commitments to their territories. Implementing systems of co-governance allows bothindigenous and non-indigenous communities to manage a project in a synergistic, collaborative andrespectful process; it is also procedurally just: the basic idea behind co-governance is that people whose livelihoods are affected by management decisions should have a say in how those decisions are made.28
22. Moreover, indigenous communities are most familiar with their territories and can contribute meaningful insights to decisions about their land: scholarship suggests that local and traditional knowledge can support better-informed and “more sustainable decisions”.29 This provides a potentially mutually beneficial arrangement for stakeholders, as proper advice, representation and de-escalation of environmental disputes are likely outcomes. Local and indigenous communities possess particularly extensive knowledge of local confidence. Indigenous knowledge can thus beincorporated with that of non-indigenous communities, who have a “regional and national vantage point” and tools and techniques like remote sensing not usually available to conventional institutions. More diverse partners can bring to the discussion table knowledge acquired at different scales, each with their own scale-specific comparative advantages.30
23. In the process of co-governance, effort must be taken to ensure that indigenous collaboration does not remain restricted to decisions on the operational level (“co-management”); indigenous communities should also be involved in decisions regarding the political and legislative paradigms in which operational decisions take place (“co-governance”).31 Co-management on the operational level, unaccompanied by any change in the existing structures of resource management to better incorporate indigenous perspectives, often distorts indigenous perspectives into forms that are “more compatible with bureaucratic resource management”32 than with indigenous lives without truly making space for indigenous voices. This can lead to the co-opting of community-based management and the consequent reinforcement of the dominance of state or local elite power over indigenous communities.33
24. An example of the above would be that of the Ruby Range Sheep Steering Committee (“RRSSC”), a co-management body created in 1995 to address the population decline of Dall sheep in Yukon, Canada. The body was composed of representatives from various stakeholders: local First Nations, big game outfitters and officials and biologists from the territorial and federal government. The RRSSC was to collaboratively make management recommendations regarding the Ruby Range sheep, a key part of the process being the integration of indigenous perspectives with the perspectives and processes of the other stakeholders.34
25. Yet, there was virtually no successful case of knowledge-integration involving indigenous perspectives throughout the RRSSC process. In the end, the RRSSC agreed on the objective of restoring the sheep population to its 1980 level, a figure reached taking into account aerial surveys conducted by state biologists starting in 1974. This figure, however, did not incorporate indigenous Kluane knowledge that the sheep population had been much larger before the government had started their surveys. Theobjective of restoring the population to the 1980 figure was far beneath the indigenous community’s aspirations; yet the other stakeholders in the RRSSC community remained unwilling to act on the Kluane’s perspective. The recommendations made by the RRSSC at the end of the process were ultimately more consistent with and accommodating of the views of biologists and outfitters than with those of First Nation people: outfitters were to agree to limit their kill to 2% of the sheep population, while First Nation hunters (to whom sheep hunting was of longstanding cultural significance) were expected not to resume hunting in the area.
26. In essence, First Nation perspectives were systematically excluded from consideration in the whole process of co-governance; in addition, the process of co-governance had instead consolidated the power of Yukon government biologists over the management of the Ruby Range sheep: the government had retained de-facto control over Ruby Range sheep management, and the First Nation collaboration had in fact enabled them to “forestall indigenous critique on the grounds that they are now engaging in collaborative management”.
27. In a separate study on co-management in South Australia, it was likewise observed that co-management not only obstructs the “realisation and realisability of Aboriginal group aspirations”, it also renders such obstruction invisible by entrenching the dominance of “Western sovereignty and knowledge” over indigenous perspectives.35
28. As such, the way forward involves integrating indigenous representation and collaboration at every level of decision-making - operational and administrative. In implementing systems of co-governance,rather than merely inserting co-management regimes into existing systems of bureaucracy, administrators and collaborators should embrace ontological pluralism: challenging and restructuring existing non-indigenous institutions, practices and underlying assumptions that govern ecological projects and developments.36
C. Early Involvement of Indigenous Communities
29. It is crucial and only logical that engagement of all affected stakeholders, like indigenous communities, is carried out before projects are substantively kickstarted. Early involvement ensures sufficient time forinternal deliberation and response to feedback.
30. Currently, consultation of indigenous communities mostly occurs only after key decisions have already been made, and even when they are involved early on, their input rarely has real influence on decisions. The Philippines’ Kaliwa Dam Project is one of many such cases – a dam being constructed on the very river and mountain range that thousands of Dumagat-Remontados have been relying on for food, water and medicine, as part of their ancestral domain where they even carry out healing rituals for thousandsof years.37 While the intention was to supply water to Metro Manila communities that had been facingwater shortages, displacement of indigenous communities from their ancestral lands on such a justification, without attempting to reach a middle ground, demonstrates flagrant disregard or at leastsome form of minimisation of indigenous communities’ voices.38
31. The decision to construct the dam had been finalised years before FPIC was obtained from the Dumagat-Remontados, and funding had already been secured by the time they were consulted. One of their leaders, Clara Dulluas, recalled its members being pressured by the government administration into providing “consent” without receiving sufficient information and far after the plan had been finalised and deemed ready to proceed.39 Here, all basic requirements of consent being “free”, “prior” and “informed” were not met, and this had implications beyond failure to fulfil an obligation. It led to internal tribal feuds, allegations of bribery, and a nine-day protest that eventually delayed the project and raised further controversy around it. Reflecting on this, it is crucial to involve indigenous communities early on in the project. This allows for fairer power distribution in decision-making, as stakeholders are more adequately informed. By engaging necessary stakeholders in the early stages of planning, mishaps and disagreements can be resolved before deals are made, allowing for meaningful and trustworthy partnerships while respecting the traditional communities.40
D. Improved Gender Representation in Consultation
32. Historically and to the present day, as they bear most of the household and caregiving responsibilities, indigenous women have borne the brunt of the impacts of climate change and environmental degradation. These burdens are compounded by persistent barriers to healthcare, formal education, employment and, as a result, participation in social protection systems, healthcare,41 and access to their ancestral lands and territories.42
33. Yet, male-dominated leadership structures continue to leave out indigenous women, despite theirextensive first-hand knowledge of how environmental projects and degradation affect their communities, and thus may even be primary custodians in effect. Such systemic inequality manifests in indigenous women being overlooked in environmental decision-making, their perspectives neither sought nor heard. As a result of such myopia in environmental governance, the marginalisation of indigenous women extends beyond the disproportionate impacts they experience to the limited scope and depth of indigenous perspectives considered in environmentaldecision-making. The lack of legitimate authority for indigenous women to influence final decisions in most consultation and FPIC processes therefore fundamentally undermines the purpose of imposing legal obligations to recognise indigenous participatory rights, both in consultation and FPIC, which are intended to reflect a collectivism of indigenous voices.
34. The experiences of the Awyu indigenous women in South Papua, Indonesia illustrate the importance of having gender-inclusive consultation. Since 2007, the Awyu have sought to guard their customary rainforest against the Indonesian government’s development plans for large-scale oil palm plantations.The forests not only homed the Awyu tribe, but were also forged with the Awyu’s cultural identity, spiritual traditions and livelihoods, whereby women held significant roles and theoretically had equal land rights to the men.43
35. For decades, the Awyu women have played important roles in their communities, from gathering forest products to engaging in crop cultivation and ensuring food security for the tribe. However, consultations about future land developments neglected the Awyu women, as traditional patriarchal structures ensured that those who held leadership roles were predominantly (or only) men. One of these Awyuwomen was Laurensia Yame, who found out that the men in her village had signed away their rights only by word of mouth – she lost her familial assets comprising land, huts, farms and forages that were inherited and painstakingly built, without even being informed.
36. Therefore, to ensure meaningful consultation and genuine consent, the processes in place ought to adopt gender-responsive frameworks, such that views representative of the indigenous community as a collective are taken into consideration for project decisions - indigenous women should not be left out of such discussions simply on the basis of gender precisely because they are equally entitled to theland as indigenous men. Ensuring representative indigenous participation rights across the breadth of indigenous society, men and women, would strengthen the legitimacy of the consultation process by building institutional trust among indigenous communities and enhancing collaborative efforts.
V. Conclusion
37. In the past few decades, as the international community has undeniably evolved and taken strides to recognise indigenous participatory rights, our discussion above highlights UNDRIP, KMGBF and otherlegal frameworks that have affirmed that indigenous communities are not merely stakeholders who require consultation, but also rightful owners who should be given the authority to influence decisions over their territories. However, as we analyse the effect of these frameworks, it is evident thatindigenous recognition remains symbolic and still lacks adequate influence. These implementation gaps reveal a troubling truth: legal frameworks alone cannot secure justice if underlying structures of communities remain unchanged.
38. The issue has moved past the absence of procedures in place to mandate indigenous consultation and FPIC. It instead focuses on the lacklustre nature of consultations and obtaining FPIC in practice, often treated merely as a formality without due regard for their indigenous rights. This is demonstrated in case studies across the world such as the destruction of Juukan Gorge and the Kaliwa Dam Project, where indigenous communities were pressured into consenting only after key and irreversible decisions had been made. This consistent pattern further affirms that even with legal frameworks, indigenouscommunities continue to be deprived of genuine impact and rights over their very own land.
39. Ultimately, legal frameworks are only as meaningful as far as the effectiveness of their implementation. Moving forward, it is crucial to ensure that indigenous participatory rights convey meaningful authority in the following manner:
(a) To embed FPIC as a key requirement in the planning stage to minimise instances of it being reduced to a mere checkbox during (or even after) the approval stage;
(b) For co-governance structures to go beyond day-to-day management to include indigenous communities in substantive political and legislative decision-making and genuinely give due consideration to their input; and
(c) To ensure demographic representation, in particular, gender representation in the decision-making process,
in pursuit of procedural justice, one of the pillars of environmental justice, which not only strengthens the other pillars (distributive, recognitional and restorative justice) of environmental justice but also drives it overall.
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