Consent versus consultation and the Free Prior Informed Consent (FPIC) Protocol – where is the line?

By Aaron Humes: Having decided to consult all relevant parties on the formation of the Free Prior Informed Consent (FPIC) Protocol, Commissioner of Indigenous People’s Affairs Gregory Ch’oc said they persevered despite internal and “intractable” tensions among the Maya community.

He considers the finished product a definite upgrade on the document made in 2018 which they got on taking office, but there was a lack of consensus among the members of the Maya Leaders Alliance (MLA) as the Toledo Alcaldes Association (TAA), which had taken responsibility for overseeing the development of the document, saw objections to its revisions. Ch’oc also noted that the Caribbean Court of Justice (CCJ) has been watching over proceedings related to the development since its consent order in April of 2015. It is unfortunate, he said, that this tension has developed at a time when the current national Government is more receptive than its predecessor to fulfilling the terms of the consent order.

The first draft of the FPIC was filed in September and promptly received objections, which required another round of face-to-face consultations, but January was the final deadline for submission.

One of the critical complaints is that in some cases, consultation with the communities is called for, while in others, it is necessary and required to obtain consent to perform certain activities. What is the threshold?

As Ch’oc explained, “What was in this document when we got it, it was a consent proposal, a consent protocol and as Justice Wit says words matter. It gives the impression that the community must give its consent and that’s not what international law says. A community may dissent and we have taken those into account here, we’ve not called it consent protocol, because the community will probably get the impression that they have to consent, no matter what. But that’s not what international law provides for. There is an option for dissent. If consent is withheld by the village, then it cannot proceed. The administrative action cannot proceed.”

This is in line with international law and there is a schedule affixed as to what actions will require gaining consent from the community. As Ch’oc pointed out, the Maya’s primary concern is sustainable development and direct economic impact on the communities in question, suggesting that the communities do not want to remain “primitive.”

But that does not apply to the organizations signing off on the FPIC as according to Ch’oc and Balderamos-Garcia, it was not required on the original document, nor by the Court.

Anyone with issues with the document, both said, can apply to the Court for consideration.

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