Forest Stewardship Council FSC Canada FSC CANADA GUIDANCE ON FREE, PRIOR AND INFORMED CONSENT (FPIC) Working Draft 1

Transcription

1 Forest Stewardship Council FSC Canada FSC CANADA GUIDANCE ON FREE, PRIOR AND INFORMED CONSENT (FPIC) Working Draft 1 Release Date: November 24, 2016

2 This is a working draft of the FPIC Guidance that is currently in development for FSC Canada, and was drafted by a consultant, in collaboration with members of the Principle 3 Technical Expert Panel and FSC Canada staff. It provides an overview of initial thoughts and approaches on the design and implementation of an FPIC process in the new FSC Canada Forest Management Standard. Version 1 of the FPIC Guidance document is shared with FSC members to inform and invite constructive feedback. The intent of all FSC Guidance documents is to help readers understand and conform to normative Standards. FSC members, Indigenous Peoples, and stakeholders play an important role in building this understanding, by providing comments and working with FSC Canada to test aspects of the draft Guidance prior to finalization. FSC Canada welcomes experiences and scenarios to assess the concepts presented herein. Moving forward, the intention is to test this draft FPIC Guidance in various regions of Canada, refine the Guidance further and ensure alignment with FSC International Guidelines. FSC Canada will also continue to expand this Guidance document to include relevant information for Organizations operating under the National Forest Management Standard Scale, Intensity and Risk (SIR) version that is currently under development. For the most current details regarding FSC Canada s planned approach to revising and adopting the FPIC Guidance document, refer to FSC Canada s FPIC webpage. 1 1 See: Page i of 32

3 Table of Contents 1 Introduction Free, Prior, and Informed Consent Explained Respecting Human Rights in Resource Development FSC and FPIC Elements of FPIC FREE PRIOR INFORMED CONSENT FPIC within the National Standard FPIC Framework The RIGHT to FPIC The PRINCIPLE of FPIC The PROCESS of Obtaining FPIC Scope of FPIC Application Sphere of Influence Private Lands Scale, Intensity and Risk (SIR) Implementing an FPIC Process Process Overview Levels of Consent Best Practices: General Process Requirements Outcomes of an FPIC Process Consent to What? FPIC and a Binding Agreement Factors Influencing an FPIC Process Verification of FPIC Process Supporting an FPIC Process APPENDIX A: Indicators in the FSC Canada National Standard (Draft 2) Relevant to FPIC Process APPENDIX B: Applicable UNDRIP and ILO 169 Articles Endnotes Page ii of 32

4 1 Introduction FPIC is a right of indigenous peoples and obligatory methodology for the States and project developers in activities relating to indigenous peoples. (Tamang 2005:13) i The right of Indigenous Peoples to free and informed consent has been part of FSC Standards since However, its implementation and assessment has been inconsistent within Canada and across the international FSC system. In Canada this was due to variations in Principle 3 indicators across four regional Standards and a lack of understanding of the evolving legal framework for Aboriginal and treaty rights. Between 2009 and 2011 FSC International conducted a comprehensive revision of the FSC Principles and Criteria (FSC P&C). In 2012, the membership approved the new version FSC P&C (FSC-STD V5-0 EN) upon which the new FSC Canada National Forest Management Standards are based. The inclusion of free, prior and informed consent (or FPIC), the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and ILO 169 are examples of internationally developed mechanisms included in the FSC P&C to help better articulate the intention of FSC to protect Indigenous Peoples rights. Canada is the first country in the FSC International system to develop a country-specific guideline for the implementation of FPIC in National Standards. The Aboriginal Chamber in Canada, unique to the FSC system, has played a significant role is promoting this work in Canada and internationally. FSC International FPIC Guidance At the time of preparing this FPIC Guidance document for FSC Canada s National Standard (Draft 2), FSC International was also revising Version 1 of its FPIC Guidelines to reflect new knowledge and case study information gathered through FPIC field tests, including one in Canada. ii Canada s significant legal, legislative and regulatory framework pertaining to Aboriginal and treaty rights and the Crown s duty to consult and accommodate necessitated further customization of the international FPIC guidelines to reflect the Canadian context. The legal and normative foundations of FPIC introduced in FSC International guidance on FPIC are valid for Canada, and the details of each policy instrument and agreement are not replicated in this document. Why do we need FPIC Guidance? FSC Guidelines are non-normative but aim to provide technical information to support Organization compliance with the requirements of normative documents. Both the International and Canadian guidance documents on FPIC fall into this category. FSC has over 20 years of experience monitoring the implementation of Principle 3 on Indigenous Peoples Rights. FSC Canada decided that it was in the interest of all Chamber members to develop a common understanding of FPIC and Indigenous rights in Canada. The following observations also support the development of FPIC Guidance: Page 3 of 32

5 Indigenous Peoples may not be aware that they have a right to FPIC; Organizations and Indigenous Peoples may not be aware of the differences between Crown consultation requirements and consent; There is uncertainty about existing Indigenous community engagement processes and whether they adequately respect the right to FPIC; and The forest management planning environment is complex with the presence of overlapping resource development tenures. Organizations, Indigenous Peoples, local stakeholders and others require clarification on the scope of an FSC FPIC process. Who is this FPIC Guidance for? The intended audience of this FPIC Guidance is an Organization with a medium to large forest management unit (FMU). The social and cultural complexities of these FMUs already require significant investment in time and resources to meet both provincial regulations and current FSC Standard requirements. The FPIC process outlined in this Guidance document aims to enhance these existing relationships to increase their effectiveness for complying with Principle 3 indicators. The more practical and explicit the definition of FPIC, the more likely Organizations and other stakeholders will succeed in meeting the Standard requirements. The FPIC Guidance document that will be released with the final version of FSC Canada s National Forest Management Standard will include details for small holders and community forests. Limitation of this Guidance Document FSC Guidance documents are not binding for the Organization. The information contained in this Guidance document reflects FSC s commitment to human rights and corporate social responsibility in the context of sustainable forest management. Indigenous Peoples, Certifying Bodies, governments and other stakeholders may have a different interpretation of the right to FPIC. This document is released as a working draft to facilitate early discussions and collaborative dialogue. Page 4 of 32

6 2 Free, Prior, and Informed Consent Explained 2.1 Respecting Human Rights in Resource Development The understanding of FPIC is evolving as the pressure to develop globally significant natural resources located in the traditional homelands and territories of Indigenous Peoples increases. Several international agreements and instruments recognize the rights of Indigenous Peoples, including the right to FPIC, namely: The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); International Labour Organization (ILO) Convention No. 169; The Convention on Biological Diversity; and The United Nations Framework Convention on Climate Change (UNFCCC) Does Canadian legislation, law or forestry regulations require FPIC? The right to FPIC is not granted through the Canadian Constitution Act, 1982, which recognizes existing Aboriginal and treaty rights (Section 35(1)), nor is it explicitly mentioned as a complete principle in Canadian case law. However, the concept of consent is not foreign to the Canadian legal system or forestry regulations. It has long been established in case law that the potential infringement of Aboriginal and treaty rights triggers the duty to consult and in some cases accommodate infringement. The Canadian courts have determined that resource extraction activities, such as forestry, requires at a minimum good faith consultation and in some cases even consent. This was clearly stated in Delgamuukw v. BC 1997 Paragraph 168: even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. iii FSC Canada is not aware of any Canadian forestry regulations that specifically required Organizations to obtain FPIC from affected Indigenous Peoples, however jurisprudence around the duty to consult and accommodate Indigenous Peoples has significantly impacted the implementation of forestry regulations across the country. In fact, many of the legal challenges related to the duty to consult and accommodate originate in the forest sector with the Crown and/or companies. The most recognizable outcome of the evolving jurisprudence around Aboriginal and treaty rights has been the development of provincial consultation and accommodation guidelines. Since the Delgamuukw decision, each province has developed and updated their policy and procedural guidelines (to varying degrees) to incorporate new guidance arising from legal decisions on the duty to consult. Principle 1 of the FSC Canada National Forest Standard ensures that Organizations comply with all applicable laws and regulations, including regulations that delegate certain procedural aspects of consultation activities to an Organization. Page 5 of 32

7 If FPIC is not law in Canada, why is it required by FSC Canada? As an international organization, FSC has committed to recognize and uphold well-established and protected human rights standards, including the rights of Indigenous Peoples, as part of its framework for supporting the practice of sustainable forest management. The role and responsibilities of Indigenous Peoples in achieving global sustainable development standards was recognized in 1987 with the publication of the UN World Commission on Environment and Development (WCED) report titled Our Common Future (or the Brundtland Report) and later in Article 8(j) of the Convention on Biological Diversity (1993). The founding members of FSC upheld these same principles and entrenched Principle 3: Indigenous Rights in the first FSC Standard published in Internationally, the principle of FPIC is linked to treaty norms iv, the right to develop and maintain cultures v and the right to self-determination in international law and non-binding international agreements. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) includes the right to FPIC in six articles (10, 11(2), 19, 28, 29(2) and 32(2)). Article 32(2) regarding resource development projects is particularly significant. It asserts: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. In addition to the international normative framework, there are practical reasons for including FPIC in forest management planning. First, Indigenous Peoples will play a significant role in the implementation of the National Standard. There are currently 20 indicators outside of Principle 3 in Draft 2 of the National Standard that require some level of engagement with Indigenous Peoples. A well-designed FPIC process will assist Organizations in complying with more than Principle 3. Second, reconciliation is a constitutional value that supports the recognition of Aboriginal rights (and Indigenous rights). The health and wellbeing of Indigenous Peoples in Canada has been the subject of numerous Royal Commissions and Human Rights investigations. Benefactors of FSC cannot ignore either the negative impacts from management activities or the potential for shared benefits. Indigenous Peoples have cultivated and protected the rich and biologically diverse territories upon which many FSC certified Organizations now operate. 2.2 FSC and FPIC Free, prior and informed consent (FPIC) conveys a combination of time-bound processes and outcomes in relation to a proposed activity. This creates challenges for developing a common understanding of FPIC and its application to management activities. One strategy is to first describe what FPIC is not: FPIC is not participatory engagement; it is not negotiation; and it is not consultation and accommodation. All of these processes are however means through which FPIC can be achieved (Anderson (2011: 15). After a comprehensive review of international literature on FPIC, Anderson (2011) describes FPIC as the establishment of conditions under which people exercise their fundamental right to Page 6 of 32

8 negotiate terms of externally imposed policies, programs, and activities that directly affect their livelihoods or wellbeing, and to give or withhold their consent to them (15). This description of FPIC explains it as a process and inherent right to exercise decision-making authority over lands and territory. It does not describe how this is to be achieved. The scope of rights addressed in an FPIC process is unique to the nature of the relationship between the Indigenous Peoples and Organization. Therefore, most authors have limited their discussions to specific programs and socio-economic contexts. FSC has taken a similar approach in defining FPIC as per National Standards requirements, but offers the information in this guidance document as a means to further operationalize the indicator requirements. This is appropriate in the context of certification as the purpose of the definition is to provide guidance to Standards developers, Certifying Bodies and Organizations on the meaning and intent of the concept. FPIC is defined in the Glossary of the National Standard as: A legal condition whereby a person or community can be said to have given consent to an action prior to its commencement, based upon a clear appreciation and understanding of the facts, implications and future consequences of that action, and the possession of all relevant facts at the time when consent is given. Free, prior and informed consent includes the right to grant, modify, withhold or withdraw approval. (FSC-STD V1-0 EN) The definition provides clear normative direction on the expected outcome of an FPIC process that Indigenous Peoples have given consent to an action. International research on FPIC has tended to focus on clarifying the elements of FPIC free, prior, informed and consent. This is helpful in that it promotes the first step of developing a shared understanding of what FPIC is at its very basic level. The same approach is adopted in this Guidance document. Each element of FPIC is described to build a common understanding of the nature and scope of FPIC before introducing its application in the National Standard. 2.3 Elements of FPIC The elements free, prior and informed consent describe the necessary conditions for granting consent. Each element is described in more detail below along with a limited list of considerations for Organizations when designing an FPIC process or assessing their own performance under each element FREE Free implies that the consent was arrived at through a community-driven process that was unencumbered by coercion, intimidation or manipulation. An Organization may consider the following factors when assessing their engagement processes with Indigenous Peoples: All FPIC process-related meetings ought to be held at a location that is determined by the Indigenous Peoples to make sure the venue and meeting format is conducive to the Indigenous Peoples decision-making protocols; The Organization ought to be able to demonstrate understanding of the community decision-making protocols and determine if they reflect the requirements of the Standard, including the relevant articles of UNDRIP and ILO 169; and Page 7 of 32

9 Conditions for funding related to the analysis of forest management information are not based on the Indigenous community granting consent to the forest management plan PRIOR This is a new element of the consent requirement within Principle 3. Previous FSC Standards included the other elements of consent (free and informed) but did not specify when Organizations ought to seek consent and when Indigenous Peoples ought to grant it. The addition of this element brings FSC s consent-based principle into line with international legal and human rights instruments. Prior implies that consent is to be sought sufficiently in advance of any authorization or commencement of forest management activities (Indicator 3.2.1) at the strategic and operational level. In doing so, the Organization should respect the time requirements of the Indigenous consultation/consensus-building processes. In Canada, the following circumstances are most relevant: Prior to tenure allocation: Indigenous communities (e.g. First Nations or Indian Bands under the Indian Act, Métis communities) are not typically given the opportunity to grant their prior consent before the Crown allocates land for development unless the courts have required the Crown to seek consent (e.g. in the cases where Aboriginal title has been recognized, i.e. in the Tsilhqot in decision vi ). However, Indigenous communities will expect to have influence over how forestry is conducted on their traditional/ancestral territories at the strategic and operational levels. For example, at the strategic level there are sufficient opportunities in the project lifecycle of a forest management plan and within the FSC certification process for Organizations to ensure Indigenous People are involved in decision-making processes. Prior to commencement of activities: FSC is a voluntary system and an Organization may enter into the system either before or after forest management activities have commenced on the FMU. While the preferred condition of granting consent prior to the allocation of forest tenure is not an option because it is outside the Organization s sphere of influence, the Organization should seek FPIC prior to the implementation of forest management activities INFORMED Informed implies that information is provided to the appropriate decision-makers in the Indigenous community and that information covers a range of aspects related to the forest management project and activities. An Organization may consider the following factors when assessing their information sharing processes with Indigenous Peoples: Information includes statements of purpose and duration of the project; The locality and areas affected by the proposed management activities are clearly defined; Proposals for conducting preliminary assessments of the likely economic, social, cultural and environmental impact, including potential risks is provided; All personnel likely to be involved in the execution of the project are identified; Procedures involved in the execution of the forest management plan are described; Information indicates how Indigenous Peoples may be involved in management activities and invites further discussion. Page 8 of 32

10 The Organization is responsible for confirming that the Indigenous community understands the nature and impact of the proposed management activities on their rights. This element of FPIC is critical in complex processes such a forest management planning. The challenge for the Organization is to ensure that the Indigenous community is considers a decision of granting or withholding consent for specific management activities when other development and socioeconomic issues may also be impacting the FPIC process CONSENT Consent is a critical element of FPIC, but once granted it does not entitle an Organization to limitless social license to operate on their FMU. Rather, it means Indigenous Peoples were free and capable of making a collective decision on proposed management activities. A consent agreement is obtained through an iteration of successive FPIC processes over a long period of time (more details provided in Section 4). Consent may be granted or withheld at different phases of a forest management plan for specific periods of time. There are a number of factors to consider when determining if this element of the FPIC process has been met: Consent may be granted or withheld in phases, over specific periods of time for distinct phases of a forest management plan/operation; Collaboratively designed FPIC processes may still result in withholding or withdrawal of consent, but there ought to be provisions built into the process to address disputes; A binding agreement, once ratified by both parties, cannot be broken arbitrarily. The terms of the agreement should explicitly state how disputes and terminations are addressed; Organizations should be able to provide evidence that communities have gained sufficient understanding of the information provided; and Consent was granted without pressure or coercion, and the timeframes and support of community dialogue were sufficient to the circumstances of each Indigenous community. Important topics such as who gives consent, how consent is given, and what Indigenous Peoples may consent to are addressed in Section 4 of this Guidance document. Page 9 of 32

11 3 FPIC within the National Standard 3.1 FPIC Framework This section of the Guidance document provides a framework for discussion and implementation of FPIC requirements in the National Standard. The objective of the framework is to clarify the language used when referencing FPIC. The FPIC framework utilizes three distinct, but related concepts: 1) a right; 2) a principle; and 3) a process The RIGHT to FPIC The right to FPIC in Principle 3 is held by Indigenous Peoples with legal and/or customary rights of ownership, use and management of land, territories and resources affected by management activities (FSC NFS V ). FSC has adopted international legal standards on human rights, including those of Indigenous Peoples with customary rights. FSC defines customary rights as: Rights which result from a long series of habitual or customary actions, constantly repeated, which have, by such repetition and by uninterrupted acquiescence, acquired the force of law within a geographical or sociological unit. (FSC 1994) Recognition as Indigenous Peoples is not dependent on government or on Aboriginal or treaty rights being proven in Canadian courts. It is grounded in the principle of self-identification. For the purposes of determining to whom Principle 3 applies, FSC s approach is to follow the terms of the ILO Convention 169 (see Appendix B), which states that self- identification is one fundamental criterion, among other criteria, for defining indigenous peoples. Non-recognition (by a government) does not of itself mean that Principle 3 is not applicable (FSC-GUI : 11). FSC Canada (FSC NFS V ) identifies or characterizes Indigenous Peoples as bearing the following criteria: Historical continuity with pre-colonial and/or pre-settler societies; Strong link to territories and surrounding natural resources; Distinct social, economic or political systems; Distinct language, culture and beliefs; Form non-dominant groups of society; and Resolve to maintain and reproduce their ancestral environment and systems as distinctive peoples and communities. Indigenous communities recognized by the Government of Canada may have geographical and administrative information publicly available on the Indigenous and Northern Affairs (INAC) website, Aboriginal and Treaty Rights Information System (ATRIS) vii. Possible exceptions are Métis individuals (status and non-status) and communities not recognized by governments. However, this does not imply that the community does not exist or that the right to FPIC does not apply. The FPIC Guidance document that will be released with the final version of the FSC National Forest Management Standard will include information regarding disputes of substantial magnitude, overlapping territorial claims and Métis communities. Page 10 of 32

12 3.1.2 The PRINCIPLE of FPIC How does FSC Canada include FPIC in the National Standard? The right to FPIC is explicitly addressed in Principle 3 (Indicator 3.2.6), however the elements of FPIC are consistently applied throughout the standard. For example, there are a number of indicators in the standard outside of Principle 3 that require culturally appropriate engagement and/or mutually agreed to processes with Indigenous Peoples. These processes may not require FPIC, but add valuable information and engagement opportunities necessary to obtaining FPIC for management activities. The principle of FPIC is not meant to define, replace or abrogate the right of governments and Indigenous Peoples to develop and implement their own FPIC processes. The FSC Canada National Standard to which Organizations must conform to gain and maintain FSC certification is voluntarily applied in the broader institutional context of Canadian forest management i.e. the governance mechanisms that determine the decision-making structures such as regional regulatory frameworks. As a voluntary, market-driven third party system, FSC forest certification occupies a space limited to soft policy and is therefore limited in its ability to implement FPIC beyond forest management activities undertaken within an FMU The PROCESS of Obtaining FPIC A process is a series of actions or steps taken in order to achieve a particular end. In the context of FSC, the process of obtaining FPIC is therefore the series of actions taken by the Organization to achieve a series of consents from the affected Indigenous communities. The intent is to support a number of decision-making processes that result in an ongoing relationship that builds mutual trust (Section 4 provides more detail). The process of obtaining FPIC is not the same as consultation as defined by Canadian law or provincial regulation where consent is not the explicit objective. However, consultation and broader community engagement is necessary to obtain FPIC. Two distinguishing characteristics of an FPIC process are 1) consent is clearly stated as the objective of the consultation process, and 2) there is mutual agreement on the design and implementation of the process. 3.2 Scope of FPIC Application Organizations operate in a complex social and economic environment. Overlapping property and resource development tenures, policy changes and an uncertain global market are only a few examples of what complicates the practice of forest management in Canada. It is important for the Organization and affected Indigenous communities to establish a shared understanding of the scope of rights to which FPIC processes are applied. (Details on how this might be determined are provided in Section 4). An FPIC process implemented to comply with the FSC Canada National Forest Management Standard has several distinguishing characteristics: FPIC applies to private and Crown land; FPIC is subject to considerations of scale, intensity and risk (SIR); FPIC is limited to forest management activities, both at the operational and strategic level of the Organization, with some exceptions; FPIC is influenced by the sphere of influence of the Organization; Page 11 of 32

13 FPIC does not address the allocation of forest tenure Sphere of Influence Further guidance will be provided on FPIC and sphere of influence as public consultation on Draft 2 of the National Standard reveal the level of support and understanding for the concept. All relevant sections of the FPIC Guidance document will be updated to reflect the final version of FSC Canada s National Standard Private Lands Principle 3 and FPIC apply to forest management activities on both publicly owned (i.e., forests on Crown lands) and private forests. The regulatory responsibilities of the private landowner usually differ significantly from that of forest managers of public lands. In Canada s social environment, it is expected that greater public consultation will occur for forest management on Crown lands than for management of private lands. There are few legal cases that have addressed the applicability of Aboriginal and treaty rights to private lands (e.g. Hupacasath v. BC 2005 viii ). What is clear is that the Canadian courts continue to uphold and enforce the Crown s duty to consult with First Nations on activities that may infringe on Aboriginal or treaty rights on all lands, public and private. In the Hupacasath case, that duty may also be extended to an Organization to ensure forest management activities do not further infringe on Aboriginal rights. In the context of forest management and certification in Canada, there are real and perceived differences between the extent of public (Crown) and private land interests that have impacted the application of Principle 3. These rights and interest vary significantly in application and can overlap to form a complex system of tenure. The courts provide the public service of balancing the rights of use (e.g. forest tenure), the rights of exclusive use (e.g. private property) and Aboriginal rights. It is beyond the scope of this Guidance to provide legal advice on the application of Aboriginal rights to private property Scale, Intensity and Risk (SIR) Further guidance will be provided for SIR at the release of Draft 2 of SIR indicators. All relevant sections of the FPIC Guidance document will be updated to reflect the SIR requirements. Page 12 of 32

14 4 Implementing an FPIC Process Respecting the right to FPIC cannot be a process with boxes that can be ticked as they are completed. The right of indigenous peoples to give or withhold their consent to development that affects their territory is part of their collective right to self-determination, which includes the right to determine what type of process of consultation and decision-making is appropriate for them. (Anderson 2011: 11) The process of obtaining FPIC involves a series of actions taken by the Organization to achieve a binding agreement with affected Indigenous Peoples. There are numerous factors that will influence the design and implementation of an FPIC process. A key component of a successful process is the willingness and ability of the Organization and Indigenous community to respect and support each other s decision-making structures. This is to ensure that each party has an equal understanding of their rights and responsibilities and the capacity to engage in an FPIC process. An FPIC process developed in collaboration with the affected Indigenous community will more likely reveal challenges and contentious issues in advance of significant investment in management planning. Respecting the right to FPIC is, by definition, a locally and culturally specific process in which the affected communities themselves determine the steps involved. It is therefore not possible to produce a universally applicable how to do it guideline. ix This Guidance document attempts to identify a set of principles and engagement activities that could be adapted to the circumstances of the local Indigenous community, Organization and FMU. This section introduces a seven-step generic FPIC process that is applicable in all international FSC contexts (details of this process can be found in the FSC International FPIC Guidance, in progress). However, Organizations in Canada have been required to engage with Indigenous People during forest development for some time, so it is possible that Organizations and Indigenous communities have developed their own engagement processes based on agreed past practices. This Guidance ensures that whether you are working within an existing process or developing one from scratch, each FPIC process meets the minimum general requirements. 4.1 Process Overview Table 1 presents a seven-step FPIC process that has been adapted from FSC International guidance on the implementation of FPIC (in progress). Each step is associated with relevant FSC Canada s Principle 3 indicators (Draft 2 of the National Standard). The indicators listed are provided as reference points for each step, however their application will be dependent on the design of each unique process. The FSC International Guidance document includes detailed information on the intent, considerations and suggested questions for all people involved in the FSC certification system. They are not reproduced in this Guidance document to avoid unnecessary repetition. Readers are encouraged to access the valuable information (including supplemental reading and references) contained in the International Guidance on FPIC. A link to this document will be provided when available. Page 13 of 32

15 Table 1: Seven-step FPIC process and related Principle 3 indicators (Adapted from FSC International Guidelines on FPIC) General FPIC Process Steps Step 1: Identify rights holders and their rights through engagement Step 2: Prepare for further engagement and agree the scope of the FPIC process Step 3: Undertake participatory mapping and impact assessments on Relevant Principle 3 Indicators 3.1.1, 3.2.4, 3.2.6(2), 3.2.6(6), , 3.2.2, 3.2.4, 3.2.6(5), 3.2.6(6), , 3.2.6(3), 3.5.1, Step 4: Inform affected rights holders 3.2.3, 3.2.5, Step 5: Negotiate and allow the rights holders to decide on the negotiated binding agreement 3.2.6(6), Step 6: Formalize and verify the binding agreement 3.2.6, 3.3.1, Step 7: Implement and monitor binding agreement Figure 1 provides a visual representation of the seven-step FPIC process described in Table 1 as non-linear to emphasize that the steps do not have to be approached sequentially, or that every step is required for every FPIC process. The center of the diagram represents either the strategic or operational level activities to which the FPIC process is being directed. In Figure 1, the seven FPIC process steps are being applied to a draft forest management plan where strategic level decisions are made for the FMU. The steps are presented below in more detail, including options for considering operational decisions. The bold arrow indicates where an FPIC process starts. The solid arrow indicates the progress of the FPIC cycle, and the dashed arrow shows where an Organization may need/want to return to previous steps to re-engage with Indigenous community knowledge holders and leaders regarding specific management activities. The star indicates a verified and mutually agree binding agreement has been granted. STEP 1 STEP 7 STEP 2 STEP 6 FMP STEP 3 STEP 5 STEP 4 Figure 1: FPIC process for a forest management plan (FMP) Page 14 of 32

16 Step 1: Identify rights holders and their rights through engagement. The Organization must identify the Indigenous communities with legal and customary rights, including resources, lands or territories in and around the FMU. Where multiple Indigenous communities are affected with differing claims to the land the Organization may need to establish if there are differential rights. Specialists and government agencies may help make a determination. At this early stage the Organization should also learn about the goals and aspirations of the communities, learn how the communities make decisions as well as if and how representative institutions are included. This will define the initial scope of the FPIC process. The community will then determine if they will consider the draft forest management plan (or annual operating plan). This is the first, and perhaps the most important, consent decision the Organization will obtain during the implementation of an FPIC process. In Figure 2, this decision is called Initial Consent. It establishes the terms of engagement, who is giving consent, how consent will be given, including what is deemed culturally appropriate and mutually agreed. In all jurisdictions of Canada, forest regulations require Organizations to identify local Indigenous communities within the FMU, however not all explicitly require knowledge of Indigenous and human rights or future social and economic development goals of communities. The duty to consult is the legal responsibility of the Crown, and it is the Crown that establishes the scope of rights to be considered under Crown consultation policies. These policies may not reflect the requirements of FSC Standards and should therefore be assessed by the Organization before relying on Crown policy. When multiple rights claims from different Indigenous communities exist over the same land the FPIC process may be tiered to accommodate those with recognized legal and customary rights (consent) and those with interests (consulted as stakeholder). Initial Consent FPIC Strategic Operational Management Decisions 0 Time (yrs) 5 Figure 2: Obtaining initial consent for consideration of management activities in FSC Canada National Forest Management Standard. Once the Indigenous community has agreed to consider the draft forest management plan, more detailed information is shared related to strategic plans and operational activities. Step 2: Prepare for further engagement and agree on the scope of the FPIC process. In this step relationships are established (or confirmed) with other stakeholders such as government, scientists, and NGOs. These relationships and networks represent the sphere of influence of the Page 15 of 32

17 Organization. Depending on the number of communities and the complexity of the local situation, Organizations may establish internal structures and policies (e.g. FPIC policy, communication strategy) to manage the FPIC process. The intent of this stage is to determine the scope of rights to be covered by an FPIC process, establish supports (i.e. timelines and budgets) for the FPIC process and refine the draft forest management plan where possible. For Organizations operating in Canada on large FMUs, this step may support procedural (or technical) responsibilities delegated by the Crown through regulatory requirements. To determine the initial scope of rights to be covered by an FSC FPIC process, an assessment of the extent to which the Crown applies FPIC and whether their application fulfills any of the FSC Canada National Standard requirements should be completed. This assessment informs discussion (or negotiation) with Indigenous communities on the design of the FPIC process and the scope of rights to which the process applies. At this stage, it may already be possible to modify the forest management plan (or annual operating plan) to avoid impacting the rights of affected Indigenous communities. After the internal structures of the Organization and the Indigenous communities are established, the ground-work for determining the impact of the draft forest management plan on legal and customary rights should begin. Step 3: Undertake participatory mapping and impact assessments. The human and financial capacity to participate in, or perform, the detailed and sometimes highly technical work of data collection and analysis is assessed. Support for participation may be required and should be arranged by the Organization in collaboration with other stakeholders in the FMU. This may include the Crown, NGOs and academic institutions. If the FMU affects more than one Indigenous community, the Organization will need to establish a mutually agreed to process for addressing/reconciling overlapping rights claims that are impacted by forest management activities in the FMU. At this stage the draft forest management plan should be refined further based on process outcomes. Land use planning led by the Crown, NGOs and Indigenous communities or their representative organizations, has occurred in many parts of Canada. The Organization should determine whether the affected Indigenous communities have participated in and accept the outcomes of these plans or assessments. If they are supported by the Indigenous community, they may inform other data collection exercises carried out for other Principles in the National Standard. Where information is lacking, the Organization should work with the affected Indigenous communities and members of the established network (Step 2) to gather relevant information for documentation and mapping. At this stage, the majority of the information required to assess impact on identified Indigenous rights should now be available in a format that is accessible to all members of the Indigenous communities. Step 4: Inform affected rights holders. Once the draft forest management plan is further refined it is presented to the affected Indigenous communities as the proposed forest management plan going forward. At this stage it is clear what, where and when forest management activities will take place. The affected Indigenous communities incorporate the results of the FPIC process into their internal decision-making structures and decide whether they want to enter into a formal FPIC agreement on the proposed forest management plan. These final steps of the FPIC process lead to the adoption of a binding agreement. Page 16 of 32

18 Step 5: Negotiate and allow the rights holders to decide on the negotiated binding agreement. The Organization and the affected Indigenous communities ensure that both parties have the capacity to enter into the mutually agreed decision-making process. This includes agreement on the mechanism for demonstrating consent (e.g. written or oral agreement), dispute resolution mechanisms, mitigation options and benefit sharing, if applicable. The Indigenous community then decides freely on the proposed forest management plan (or annual operational plan). Step 6: Formalize and verify the binding agreement. The previously agreed verification process is implemented before formalizing the agreement. If the verification process reveals flaws, the Organization and Indigenous community may decide to return to previous steps in the process and if possible, correct or repair any flaws (dotted arrow in Figure 2). If the FPIC process is verified with no flaws, the consent agreement is formalized by the mutually agreed mechanism (See star in Figure 1). The outcome of the decision (but not necessarily the content) is made publically available to the entire Indigenous community. The final step of the FPIC process is perhaps the most enduring. Step 7: Implement and monitor binding agreement. The binding agreement is implemented and monitored according to the agreed terms and conditions. In practice, forest management planning and operational activities are subject to changing policies or circumstances arising from new information. This reality may lead to the renegotiation or withdrawal of consent by the Indigenous community as per the procedures established in the binding agreement. The flexibility of the FPIC process allows for minor pauses with little to no disruption to forest management activities. Larger, more fundamental changes to the circumstances of the FMU or policy environment may temporarily suspend an FPIC process, and the binding agreement, to allow the community time to adjust and re-evaluate the terms of engagement Levels of Consent The FPIC process steps are applicable to both strategic and operational level decisions. Figure 3 below illustrates how an FPIC process developed for the purposes of fulfilling FSC Canada s National Forest Management Standards may be applied to a 10-year forest management plan (strategic decisions) and associated annual operating plans (operational decisions). Organizations may not have to carry out all steps of the FPIC process to obtain consent for higher level strategic decisions. FPIC processes designed to address specific or detailed information at the operational planning level may be carried out more often (e.g. on annual basis for auditing purposes) but with limited steps to ensure efficient use of time and resources. Overall, the FPIC process should remain flexible to allow for its evolution over time as Organizations, Indigenous communities and stakeholders gain experience, build confidence and develop more trusting relationships. Page 17 of 32

19 Initial Consent FPIC FMP RE-CERTIFICATION FMP Renewal Strategic Operational Management Decisions Broad Level Consent FPIC FPIC FPIC FPIC Annual Operating Plans Specific Consent Annual Audits Community Meetings Time (yrs) Figure 3: Example of the how the FSC Canada FPIC process may apply to a 10-year forest management plan and annual operating plans. The FPIC process accommodates the rights of Indigenous Peoples to freely decide on forest management activities while at the same time providing more stability and certainty for the management activities of Organizations. For Organizations that have an established engagement process it should be assessed against the model presented in this Guidance document and ensure it meets the requirements of the FSC Canada National Standard. Some general process requirements are presented below to highlight best practices carried out internationally within the FSC system Best Practices: General Process Requirements 1. Mutual agreement with Indigenous communities: The FPIC process steps provided above are general and can be applied to any culturally appropriate engagement process. Mutual agreement on preferred procedures for consent and its actual form (existing or revised), including what constitutes consent, is critical. 2. A continuous, flexible process: An FPIC process is not meant to be implemented as a one-time activity. Consent may be granted at different levels of decisions-making and multiple times over the life of a management plan. This should be reflected in the mutually agreed terms of the binding agreement. Rights holders have the ability to grant, withhold or withdraw consent at any time; therefore, it is imperative that the Organization establish a continuous process that can be adapted to the circumstances of the relationship between the Organization and the Indigenous community. 3. Clear scope of rights and management activities: An effective and collaborative FPIC process will take time and resources. Factors outside of the sphere of influence of the Organization may add complexity and impact the scope of rights and management activities the Indigenous community is capable and willing to consider. The FPIC process should reflect the mutually agreed scope of rights to be included in the process. If the scope of rights is not agreed upon, and if the Indigenous community consents, the FPIC process may be limited to those rights and activities that have been agreed upon. A Page 18 of 32

20 mutually agreed plan for addressing the entire scope of rights ought to be included in the documentation of an FPIC process. 4. FPIC Process Verification: Due diligence requires that the Organization and the Indigenous community mutually agree on the terms of verification at an early stage of the process. This may be done by a Certification Body or some other agreed upon thirdparty, but it is essential that the verifier is trained in the application of FPIC in the FSC context. 5. Complete Documentation of FPIC Process: Verification will require that the Organization and the Indigenous community maintain a complete record of the FPIC process. Refer to FSC International Guidance for detailed information on the implementation of the FPIC Process steps presented above. Version 1 of this Guidance document is still relevant and may be found at: 1.a-1243.pdf. FSC Canada will link Version 2 of the International FPIC Guidance to the FSC Canada FPIC webpage when it becomes available. 4.2 Outcomes of an FPIC Process Knowing how people think about public participation processes and knowing what people want from these processes is essential to crafting a legitimate and effective process and delivering a program that is widely viewed as meaningful and successful. (Webler and Tuler 2006: 699) x The circumstances of each FPIC process are unique to the relationship between the Indigenous community and the Organization. There is no prescribed methodology to guarantee an outcome of consent or a binding agreement. FPIC processes may take considerable time and resources, and vary according to the complexity of the decision-making environment Consent to What? The FPIC process steps in Section 4 provide a narrative for how the right to FPIC may be implemented as part of forest management planning. Figure 4 converts this process into a decision tree to demonstrate what an Organization may obtain consent for. This diagram does not account for variations in the forest management planning processes across all jurisdictions in Canada to which the National Standard applies. Organizations are encouraged to develop a similar decision tree to meet their specific circumstances. Page 19 of 32