Articulating FPIC through transnational sustainability standards: A comparative analysis of Forest Stewardship Council’s standard development processes in Canada, Russia and Sweden

Highlights

• We develop a typology of FPIC conceptions including: human rights, relational and procedural.

• Analysis of FSC standard development processes in Canada, Russia, Sweden reveal divergent views of FPIC between chambers.

• Articulations of FPIC in national standards tend toward relational (Canada) and procedural (Russia and Sweden) conceptions.

Abstract

An increasing number of sustainability standards integrate the principle of free, prior and informed consent (FPIC) as a requirement to ensure respect for the rights of Indigenous peoples. FPIC remains a contested norm, due in part to divergences of interpretation and gaps in implementation. Drawing on a typology based on FPIC conceptions, this paper presents a comparative analysis of the Forest Stewardship Council’s (FSC) standard development processes in three countries, Canada, Russia and Sweden. The paper investigates the dynamics of designing FPIC requirements and conceptions of FPIC reflected in national standards. Drawing on semi-structured interviews and analysis of written standards, this study finds similarities in terms of the key debates, such as the scope of Indigenous authority and applicability of FPIC to non-Indigenous communities, however underscored by different stakeholder dynamics and outcomes. Despite the structuring presence of International Generic Indicators, different conceptions of FPIC are reflected in national standards.

Introduction

Free, prior and informed consent (FPIC) is an emergent human rights principle which recognizes Indigenous decision-making authority on traditional lands, in cases of resource development such as forestry, oil and mining. International instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) uphold the rights of Indigenous peoples to FPIC, linking it to self-determination, and the rights of Indigenous peoples to govern their own affairs through collective decision-making processes. FPIC has become a key assertion of the Indigenous rights movement in dealings with government and industries in matters of resource development. Indigenous groups are also asserting FPIC through the development of internal laws, procedural guidelines and negotiated agreements (Doyle, 2015, Papillon and Rodon, 2020). While international recognition of FPIC has mostly focused on Indigenous peoples, there is also a movement underway to extend FPIC rights to communities, whom are governed by traditional systems but lack legal protection (Lehr and Smith, 2010). In principle, each component of FPIC confers specific meaning. Free, refers to consent given without coercion, intimidation or manipulation. Prior, means that consent is sought well in advance of project approval. Informed, refers to the need for sharing of pertinent information regarding the scope and impacts of the project. Finally, consent is conceived as a collective decision made by rights-holders through a community sanctioned decision-making process (Food and Agriculture Organization, 2016, Johnstone, 2020).

There are numerous drivers and pathways for the implementation of FPIC worldwide, including national laws, corporate social responsibility initiatives, and Indigenous-led actions. While the visibility and diversity of FPIC initiatives is growing, there is also increasing recognition of challenges to implementation, especially in countries lacking conducive conditions, such as support for human rights, Indigenous capacity and effective socio-political organization (Owen and Kemp, 2014). The literature on FPIC describes a type of “implementation gap”, which links insufficiencies in FPIC application to procedural failures (lack of community input, engagement with unrepresentative groups, coercion) and structural conditions (marginalized and poorly resourced communities, imbalances in financial and technical resources) (Colchester and Ferrari, 2007, Cariño and Colchester, 2010, O’Faircheallaigh, 2015). Indeed, there is growing concern expressed amongst scholars, practitioners and Indigenous peoples that in application, the underlying principles of FPIC are being eroded as a result of the design and application of institutional arrangements which do not sufficiently reflect the spirit and intent of FPIC. Proponents of FPIC must also contend with a reactionary discourse, from some corporate and governmental actors, whom associate FPIC with a type of unilateral Indigenous “veto”¹over resource development, which could be used indiscriminately by Indigenous groups to block or stall resource development projects (Joffe, 2015, Imai, 2016).

This issue of conceptual differences with regards to the meaning of FPIC conveyed both in design and implementation is the central topic of this paper. Indeed, some describe FPIC as a contested norm due to the lack of a shared definition of the concept and the fundamental parameters for its implementation (Fontana and Grugel, 2016, Papillon and Rodon, 2020). Although the foundations of FPIC, based in a human rights discourse (and articulated in documents such as UNDRIP), are clear and widely supported, in the sphere of application, conceptions and approaches diverge. Particularly contentious is the question of what constitutes legitimate forms of “consent” and the extent to which this confers substantive decision-making authority to Indigenous peoples. Several scholars note a tendency within the field of corporate social responsibility for FPIC processes to rely on bureaucratic or procedural approaches, which either downplay or obfuscate the obligation to seek consent through representative institutions and with meaningful community process (Szablowski, 2010, Yaffe, 2018). That being said, there is also growing recognition that FPIC is not a one-size-fits all approach. FPIC processes are strongly situated, and deeply influenced by the socio-cultural, political and environmental contexts in which they are embedded. FPIC processes are often built on a foundation of existing institutional arrangements between Indigenous peoples, corporations and the state, and as such they reflect the complex histories of these relationships (Fontana and Grugel, 2016).

In this paper, we seek to provide new empirical evidence regarding FPIC and the way its meaning is debated and articulated within the field of sustainability standards. Initiatives within this field provide market incentives for extractive industries based on their voluntary adherence to a set of norms, encompassing social, cultural, environmental and/or economic dimensions (Meadows et al., 2019). The Forest Stewardship Council (FSC), the focus of this study, is an organization that has developed a sustainability standard through a multi-stakeholder process. It was also one of the first to integrate consent requirements into its international standard. FSC presents a particularly interesting case study regarding articulations of FPIC because of its institutional structure which is based on an international standard (a generic set of principles and criteria), which is supplemented by specific sets of indicators developed by each national FSC initiative through a participatory process. Although indicators are designed to account for the specificities of socio-political and environmental contexts at the national level, FSC’s overarching aim is to ensure consistent application of its norms across the globe. FSC therefore provides an interesting opportunity to retrace the process by which a single internationally codified version of FPIC is ‘translated’ in national standard development processes, the tensions which emerge around interpretation, and the final articulations of FPIC which are agreed upon. Specifically, this paper undertakes an analysis of recent FSC standard development processes in three countries, Canada, Russia and Sweden, in order to: (a) examine stakeholder dynamics related to FPIC to identify key issues and debates related to interpretation (b) to link these to textual versions of FPIC articulated in each national standard and analyse implications regarding approaches to implementation.

We begin by setting out a conceptual framework, which draws on the academic literature in order to present a typology based on conceptions of FPIC. This is followed by a description of FSC and its approach to FPIC in standard development. The methods section is next, which includes a brief description of contextual conditions in each country. This is followed by research results, organized on a country-by-country basis and separated according to process (dynamics and key challenges) and written outcomes. We end with a discussion, where we look at the implications of these conceptual differences regarding FPIC and point towards factors which help explain these differences, relating both to process dynamics, as well as broader socio-cultural and political contexts.