The right to development as referred to in paragraph (2), letter e, includes:
a. Full involvement in development programs implemented by the government from the planning stage through implementation to supervision;
b. Obtaining complete and accurate initial information regarding development programs planned by the government and other parties outside the government that will impact land, territory, natural resources, culture, and customary institutions;
c. Accepting or rejecting any development program taking place in their customary territory based on clear, complete initial information and without coercion;
d. Proposing development programs that align with their aspirations and needs, and/or that have a positive impact on their lives;
e. Vulnerable groups such as women, children, youth, the elderly, and people with disabilities who are members of Indigenous Communities have the right to participate in development programs taking place in their customary territories; and
f. Participate in resolving disputes within their customary territories.
Free, Prior, and Informed Consent, or FPIC, is a fundamental human right that must be exercised or fulfilled when implementing a policy or development project. The principles of FPIC are: free, prior, informed, and with consent.
FPIC is the right of indigenous peoples to express their agreement or disagreement with any development agenda planned and implemented within their customary territories. To reach consent (a decision to agree or disagree), several prerequisites must be met, including: first, information that is not only adequate but also presented clearly in a language easily understood by indigenous peoples; second, indigenous peoples are given sufficient time to analyze the available information; third, the decision-making process involves and accommodates the needs of specific groups within the indigenous community; and fourth, the entire process is carried out freely and without coercion from any party.
Free, Prior, and Informed Consent (FPIC) is a fundamental right that must be fulfilled during the initial planning process. This allows indigenous peoples to ultimately make informed and free choices, without pressure or intimidation. This means that FPIC is not merely a technical matter, but rather a prerequisite that must be implemented before any development project or policy is implemented. The right of indigenous peoples to FPIC is a logical consequence of the recognition of indigenous peoples, who historically predate the state. It also politically affirms that ultimate sovereignty rests with the people.
Indonesia, as part of the global community, should implement the FPIC principle as outlined in the UNDRIP (UN Declaration on the Rights of Indigenous Peoples, which recognizes the right of indigenous peoples to self-determination and consent, including articles 3, 10, 19, 29, and 32), ILO Convention No. 169, which stipulates the state’s obligation to consult with indigenous peoples before undertaking projects, and the Convention on Biological Diversity (CBD), which establishes the principle of providing access and benefit-sharing that requires the consent of local communities. In addition to international instruments, FPIC is also enshrined in national legal instruments, such as Article 18B paragraph 2 of the Constitution, which recognizes the state’s recognition of indigenous legal communities, and Law 32/2009 concerning Environmental Protection and Management, which relates to community participation. Ironically, despite being enshrined in national and international legal instruments, FPIC has not been effectively implemented by the government and corporations that have obtained permits for natural resource management, including forests, monoculture plantations, mining, and even development projects packaged as National Strategic Projects (PSN). In practice, claims of FPIC are merely publicity and are often manipulative. Many agrarian conflicts occur because various natural resource permits, such as forestry permits, oil palm plantations, timber plantations, and mining permits, are granted by the government to corporations without the knowledge of indigenous communities and even within their customary territories. Yet, these permits will impact the lives of these communities and their environment.
This is what has fueled agrarian conflicts in customary territories. The Indigenous Peoples’ Alliance of the Archipelago (AMAN) recorded 687 agrarian conflicts in the past 10 years across 11.07 million hectares of customary territory, resulting in the criminalization of more than 925 Indigenous people, 60 of whom experienced violence from state authorities, and one death.
The Coalition to Guard the Supreme Court Bill has identified that there are at least six rights of Indigenous Peoples that are continually violated. These rights are indivisible and inherent, and must be recognized for the achievement of humanitarian goals for Indigenous Peoples. One of them is the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC).
Based on this, the Coalition aims to ensure that FPIC is implemented and included as a crucial part of the Indigenous Peoples Bill. FPIC is an effort to recognize indigenous territories and ensure the protection of the rights of Indigenous Peoples, who have historical and tenurial ties that have been passed down through generations. Indigenous Peoples are granted the right to self-determination in managing their livelihoods. FPIC is also a way to prevent conflict in indigenous territories. And ultimately, amidst the challenges of the climate crisis, FPIC can also ensure environmental sustainability for current and future generations. All of these are benefits that can be gained if all parties consider FPIC a right that must be exercised.
A Major Loophole in Indonesian Law
However, despite the global strength of this principle, we face a harsh reality: Indonesia currently lacks a law that explicitly and comprehensively regulates FPIC. The principle of “consent” has been scattered throughout various sectoral regulations, such as environmental documents (AMDAL) or forestry permits. However, these regulations are partial, weakly enforced, and often viewed as mere administrative appendices to permits. Without a strong legal framework—as envisioned in the Indigenous Peoples Bill—FPIC remains little more than a moral imperative that is easily ignored.
This legal vacuum creates dangerous uncertainty:
- For business actors: the risk of social conflict and operational obstacles due to the lack of clear standards for interacting with local communities.
- For communities: they remain vulnerable to eviction and loss of living space.
FPIC essentially aims to ensure the rights of indigenous peoples and their territories are protected and not violated by any party. It also ensures that communities are fully involved in decision-making processes that impact their territories and their livelihoods. FPIC is also part of efforts to prevent conflicts.
A Call for the Future
FPIC is a principle! FPIC in the Indigenous Peoples Law is not an attempt to hinder economic progress. Development based on coercion will only lead to prolonged conflict that is detrimental to all parties. Respecting FPIC means honoring humanity and safeguarding national sovereignty from its roots. It is time for the state to intervene to ensure that the “consent” of indigenous peoples is no longer a mere formality on paper, but a concrete manifestation of respect for human rights.
Disclaimer: This article was written in Indonesia and has been translated by Google Translate. In case of dispute or discrepancy, the original language of the article should prevail.
