“Consultation” as a tool of exclusion: A choreography that hides land grabbing

There is much talk today about the importance of the consultation process with local communities before the arrival of mega projects that could affect their territories, livelihoods and food security. The consultation process is presented as a citizen participation mechanism, by which communities potentially affected by a major plan or project are convened to give their opinions. Increasingly, companies backing mining investments, dams or monoculture plantations, as well as NGOs that implement REDD-style “conservation” projects, emphasize local community participation and the use of consultations. Yet, while at first glance this may seem like a fair process, consultations end up being a tool of the expansive logic of the predatory economic model; a model which uses the State as an intermediary to make the decision to implement the project beforehand.  The decisions on when such consultations take place, who is involved, what is discussed and to what extent, is determined from the top down. This instrument also ignores the right of free determination of communities, that is: their power to make collective decisions about their lives and territories. It is vitally important to call attention to this ruse, which in practice facilitates land grabbing.

It is essential to remember that the logic of large-scale extraction in the global South has its roots in colonialism. This logic of accumulation of wealth through the appropriation and monopolization of “nature” remains intact to this day, since “all institutional agreements that have been adopted through the years end up submitting to this logic” (1). These institutional agreements, in turn, are enshrined in public law, which has also been a powerful tool to justify the expropriation of territories in the colonization project.  Agreements or contracts made or attempted with communities are usually done so with a public law perspective, which assumes that each party defends its own individual interests in a relationship between two free and equal parts.  This view assumes that each party has all the necessary information and in a timely fashion, and that there is no pressure—economic, political or otherwise. It also denies any values alien to the idea of individual freedom, such as self-determination (2). The right to self-determination is the collective right of a people to decide their own forms of government, pursue their own economic, social and cultural organization, and structure themselves freely; all without external interference, and in accordance with the principal of equality. This is tied to the right to Free, Prior and Informed Consent.

Peruvian researcher Roger Merino, with extensive writings on the rights of indigenous peoples vis a vis liberal capitalism, explains that the consultation process is tied to the principle of participation, with an emphasis on taking part in State decision-making processes. Meanwhile, consent is tied to the principle of self-determination, which means respecting collective decisions made based on values different than those of the State. The informative nature of consultation meetings thus reveals the implicit assumption that the transfer of information should be from a government/corporate space to a community space; with the latter only able to add improvements or suggestions on a decision almost always made in advance. It does not include the possibility that community members may propose another kind of “development,” or completely reject the proposal, since only one kind of “development” is assumed possible (3).

A resistance guide developed to support community organizing against the mining industry warns us that “Companies may use meetings as part of obtaining community acceptance of the project - the “social license” that they need. They may describe only the benefits of the project. They might not tell the participants the real objective of the meeting, and then later use it to claim that the community has consented to the project” (4).

In this context, the State as well as international organizations and companies, seeking to appear socially responsible, encourage and promote consultation. As researcher Merino says, “the real trick hidden behind the right to 'consultation without consent' is that by 'including' affected peoples, it actually perpetuates their exclusion” (5). And this doesn't take into account the many communities that do not have official recognition of their territories, and who are therefore not even consulted about projects that would affect them; reinforcing unjust patterns of access to land inherited from the colonial era.

Empty questions: when consultation is on decisions already made

In the Northern Peruvian Amazon, the French company Pur Project created the Martín Sagrado conservation concession as a REDD carbon offset project. Pur Project sells to other companies—such as the multinational energy company GDF Suez—the opportunity to offset their emissions by financing their activities. Pur Project says community inclusion is an added value of their projects. Yet, an investigation by Friends of the Earth France revealed the promoted local “inclusion” to create the conservation concession was actually biased and exclusive (6).

The consultation meetings with villages that ended up inside the concession area took place on the outskirts of these villages, and with only a few people who did not represent the communities. Furthermore, the meeting minutes indicate the information given was partial: no information was given regarding the restrictions involved in creating a conservation concession, nor about the financial means by which the concession would be managed.  Additionally, several communities close to the concession do not have recognized land titles, since they are mostly immigrants who escaped from mining activities. Since the lands in which they have settled are not recognized, they were also not consulted about the Pur Project; which is now directly affecting them by limiting their rights to use the forests on which they depend for their livelihoods. But what is worse is that the first meetings with the villages within the concession occurred between November and December of 2012, yet the technical proposal of the concession was approved on March 27, 2012 and the resolution to transfer rights on April 19, 2012.  So, if the decision had already been made to grant the concession and limit communities’ rights to use the forest, what was the consultation about?

The Mai N'dombe REDD project in the Democratic Republic of the Congo (DRC), created by Canadian company ERA – Ecosystem Restoration Associates Inc. and now run by the California-based organization Wildlife Works Carbon (WWC), sells carbon credits.  Here also, the benefits to local communities are a central part of the project's promotional materials. Nonetheless, WRM's analysis of the case revealed that the communities were only contacted after the important decisions had already been made (7).

ERA persuaded the government of the DRC to approve a forest conservation concession on lands previously part of industrial logging concessions. However, these logging concessions had already been cancelled. The communities living in the REDD project area did not participate in negotiations to grant ERA the forest conservation concession, now in the hands of WWC. Nor is there evidence that ERA consulted the communities to try to sound out their opinions about the proposal before entering into negotiations with the government. Only after ERA and the government of the DRC signed the Carbon Rights Agreement and the forest conservation contracts, in March and August of 2011 respectively, and after having announced they would seek certification of the projects, does it appear that ERA came into contact with the communities. When ERA arrived in the communities, the major decision had already been made to grant the conservation concession. This would restrict communities’ use of the forest, which is the source of livelihood for a large part of the local population.

The short video “Manufacturing Consent” shows how representatives from the oil palm company PT Borneo, a subsidiary of the multinational First Resources, arrived on August 2011 to the Muara Tae village, Indonesia, asking for permission to enter the community’s territory (8). According to traditional leader Ignacius Igoqu, in a meeting that day “the community including me and the village head refused the presence of PT Borneo who wanted to partner with us”. However, the company returned on September. During that visit the company representatives stated “we will not be detrimental to the community” and claimed that partnering with the company would be “very profitable” for the community. The community again refused to partner with the company, but First Resources’ subsidiary kept entering in their territory, destroying forests, lands and water sources.

A year later, by September 2012, while bulldozers from PT Borneo were still destroying Muara Tae communal forests, First Resources posted documents on the “Roundtable for Sustainable Palm Oil” (RSPO) website stating that it had started the 30 days consultation period for new plantings of PT Borneo. Other documents were posted on the same website, which included PT Borneo’s claim of compliance with RSPO principle 7, which states, among others, that “no new plantings are established on local peoples’ land without their free, prior and informed consent”. In the video, a village leader explains that “they did not enter with the consent of the community. They forced entry, demolishing the community territory forcibly. (…) they ignored the rejection by the villagers of Muara Tae”. Another villager complements that the company brought in “BRIMOB [riot police] to intimidate people so they don’t defend their land.”

Communities’ requests to the RSPO that the company remain outside of their traditional territory, were ultimately converted—by both the company and the RSPO—into requests for “dialogue” and “communication” with the invader (9). The community had already responded clearly to these attempts for “dialogue” and “communication” on various occasions: they did not want to accept the company’s offer. However, the RSPO asked the company to “improve” its standards on Free, Prior and Informed Consent (FPIC). But if FPIC includes the option to say “no”, why not consider the clear refusal of community members as a serious and definitive answer? Again, this example shows us how the fundamental decision had already been made before the consultation process. In spite of the fact that the community rejected the company, by not giving their consent or approval, their position was not respected.

In this context, it is absurd to claim that consultation is a mechanism that seeks “intercultural dialogue” and “social inclusion.”  Even when the State or allied entities talk about self-determination or FPIC, this almost always ends up with a consultation, linking this to the principal of participation. Also, what happens when an indigenous community has not been able to secure rights to their land? What happens when the initial impact of a project affects one community, but due to its magnitude could also affect neighbouring communities? What happens when communities affected by companies—that can continue to pollute by buying carbon or biodiversity credits—are not even considered?

And finally, should not the principle of FPIC be called GNG FPIC?  In which case, the acronym would stand for to “Give or Not Give Free, Prior and Informed Consent.” The fact that the option to say “No” is not explicit in FPIC means that companies, states and other actors often use this process as a trap to obtain “consent” from the community, one way or another.

Joanna Cabello, joanna@wrm.org.uy
Member of the International Secretariat, World Rainforest Movement