Partnerships for Success in Protected Areas: The Public Interest and

Local Community Rights to Prior Informed Consent (PIC)

I. INTRODUCTION

The protection of biodiversity by conservation organizations and governments increasingly centers on prohibiting or strictly regulating
human activities within designated "protected areas."1 Moreover, there is growing awareness of the need to expand the size of protected
areas.2 Often initiated by non-governmental or quasi-governmental organizations, the establishment of protected areas is facilitated and
approved by governments pursuant to their authority as sovereigns and ostensibly undertaken in the "public interest."

In developing countries, most highly biodiverse areas are inhabited by indigenous peoples and other local communities with strong
cultural and physical ties to natural resources. These populations are typically the most impacted by the establishment of protected
areas.3 Rarely, however, do any local people, whether or not indigenous, participate to any significant degree in decisions guiding the
design, establishment, and implementation of protected areas.

The failure to involve indigenous peoples and other local groups in state-sanctioned efforts related to biodiversity conservation raises
several concerns. Most important is the impact on human rights that are central to indigenous peoples and other local communities with
significant relationships to natural resources. Indigenous peoples' lack of full and informed involvement in decisionmaking processes
decreases significantly the likelihood that they will continue to have access to resources that are vital to their culture, livelihoods, and
security. Additionally, indigenous peoples' lack of involvement considerably diminishes the likelihood that their contribution to
protecting biodiversity will be recognized, supported, and fully utilized. This, in turn, means that the biodiversity objectives motivating
the establishment of protected areas will less likely be met.

What are the rights of indigenous peoples and other local communities to participate in decisions regarding lands and other natural
resources they use or occupy? How do these legal rights relate, in practice, to the rights of states? What are the roles and responsibilities
of NGOs in satisfying community rights? What can states, NGOs, and local communities do to implement these rights?

In recent times, many answers to the foregoing questions have revolved around the concept of "Prior Informed Consent" (PIC), whether
PIC is a legal right held by indigenous peoples and other local communities, and how PIC can be implemented. While the definition of
PIC varies by context, it generally is described as a consultative process whereby potentially affected communities engage in an open
and informed dialogue with outsiders interested in using areas occupied or traditionally used by the communities at issue.4 These
discussions should occur prior to, and continue throughout, the time the activity is conducted and communities have the right to give or
withhold consent at decision-making points during the project cycle.5 At no time should consent be coerced or anything other than
voluntary.

This Article will examine how the rights of indigenous peoples and other local communities to PIC relate to the efforts of states and non-
state actors to establish protected areas, as well as offer insights into, and recommendations for, how PIC can be implemented to secure
human rights and assist in achieving conservation objectives. More specifically, Section II of the Article will examine how the rights of
indigenous peoples and other local communities to manage natural resources, particularly their rights to PIC, relate legally and in
practice to the rights of states to manage natural resources. Section III will describe the role of non-state actors in the management of
natural resources and, in particular, in the establishment of protected areas. It will consider their responsibilities and review current
efforts to satisfy these responsibilities. Section IV will articulate how recognition and implementation of the rights of indigenous peoples
and other local communities to PIC can enhance the effectiveness of current approaches to establishing protected areas, especially with
respect to the "co-management" approach. Finally, Section V will offer recommendations for implementing PIC in the protected areas
context.

II. RIGHTS TO MANAGE NATURAL RESOURCES

This Section of the Article will examine: (1) the rights of indigenous peoples and other local communities to manage natural resources,
with a focus on their rights to PIC; (2) the right of states to manage natural resources; and (3) how the rights of communities relate to the
rights of states.
A. RIGHTS OF INDIGENOUS PEOPLES AND OTHER LOCAL COMMUNITIES TO PARTICIPATE IN NATURAL RESOURCES
MANAGEMENT

Several international norms directly or indirectly recognize and support the relationship of indigenous peoples and other local
communities to land they use and occupy. Among the most significant of these include the following interrelated human rights,
articulated in various international treaties: the right to property; the right to culture; the right to be free from racial discrimination; and
the right to self-determination.6 As elaborated below, official interpretations indicate that effectuation of the right to property, the right to
culture, and the right to be free from racial discrimination require recognition and implementation of the rights of indigenous peoples and
other local communities to PIC.

Although international law largely ignores the rights and aspirations of rural constituencies in the Global South, indigenous peoples have
received much more attention than other local communities that have long resided on and used natural resources in specific locales.
Perhaps foremost among the reasons for this is that, by definition, indigenous peoples have resided in ancestral territories for longer
periods, for generations that date back even before the establishment of colonial regimes. Many indigenous peoples have also been
subjected to unique forms of oppression and discrimination by dominant groups who largely control regional and national laws and
institutions.

Notwithstanding these hardships and injustices, rights unique to indigenous peoples under international law provide greater support for
the recognition of their right to prior informed consent. The right of indigenous peoples and tribal communities to PIC before
resettlement is recognized explicitly in the Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries
(ILO 169).7

The Convention on Biological Diversity (CBD) recognizes the significance of the relationship of both indigenous peoples and other local
communities to the resources they use or occupy. The CBD embraces the need for approval of indigenous peoples and other local
communities in the contexts of (1) management of existing, and the establishment and management of new, protected areas; (2) use of
their traditional knowledge; and (3) environmental and social impact assessments.8

Parties to the CBD should promote "[f]ull and effective participation by 2008, of indigenous and local communities, in full respect of
their rights . . . consistent with . . . applicable international obligations" in the management of existing, and the establishment and
management of new, protected areas.9

Moreover, many non-binding international instruments address the significance of this relationship and the need for participation of
indigenous peoples and other local communities in decision-making related to resources. These instruments have been the subject of
much attention and activity by international institutions, such as the United Nations, Organization of American States (OAS), and the
World Bank Group, as well as indigenous organizations and other interest groups.10 In support of these international norms, many
countries' domestic laws recognize and secure this relationship.11 This evidence in support of prior informed consent of indigenous
peoples and other local communities suggests that PIC is not only central to enforce key rights, but is also emerging as a norm of
customary international law.

Finally, similar to community-based property rights, prior informed consent of communities can be viewed as a human right that derives
its authority from and is recognized not only by international law, but also natural law concepts; the existence of the rights of indigenous
peoples and other local communities to prior informed consent is not necessarily dependent on governments or any assumption of state
creation, grant or recognition.12

1. The Rights to Property and Culture

The rights to property and culture are directly rooted in the relationships of indigenous peoples and other local communities to the
natural resources they use and occupy. These rights have most often been interpreted by official bodies as requiring the consent of
communities or their effective participation in decision making.

The right to property is enshrined in numerous international and regional instruments, including the Universal Declaration of Human
Rights,13 the American Convention on Human Rights,14 the American Declaration of Human Rights,15 the African Charter on Human
and Peoples' Rights,16 the European Convention on Human Rights,17 and the U.N. Draft Declaration on the Rights of Indigenous
Peoples.18
The Inter-American Human Rights System has been particularly explicit about the significance of the right to property for indigenous
peoples and in describing requirements for effectuating this right. In interpreting the right to property as articulated in the American
Convention on Human Rights, the Inter-American Court found in Mayagna (Sumo)Awas Tingni Community v. Nicaragua:

Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous
people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and
their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a
material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.19

Of particular note was the finding that, given the significance of this relationship, indigenous peoples' customary law is adequate to
support the finding of the existence of a property right even in the absence of state recognition of that right.20

More recently, the Inter-American Court in Moiwana Village v. Suriname recognized the significance of the right to property and PIC
for communities that are not indigenous to a given area, but have established significant physical, spiritual, and cultural ties to the
land.21

In this case, the Inter-American Court found that the Moiwana community members, N'djuka Maroons,

possess an 'all-encompassing relationship' to their traditional lands, and their concept of ownership regarding that territory is not centered
on the individual, but rather on the community as a whole. Thus, this Court's holding with regard to indigenous communities and their
communal rights to property under Article 21 of the Convention must also apply to the tribal Moiwana community members: their
traditional occupancy of Moiwana Village and its surrounding lands-which has been recognized and respected by neighboring N'djuka
clans and indigenous communities over the years ... -should suffice to obtain state recognition of their ownership. The precise boundaries
of that territory, however, may only be determined after due consultation with said neighboring communities.22

In the Moiwana case, the Inter-American Court explicitly recognized that local communities were entitled to prior informed consent. It
held that the state must adopt legislative, administrative, and other measures necessary to secure the property rights of the members of
the Moiwana community to the traditional territories from which they were expelled and enable the members' use and enjoyment of those
territories.23 These measures must include the creation of an effective mechanism for the delimitation, demarcation, and titling of their
traditional territories. It added that Suriname shall "take these measures with the participation and informed consent of the victims as
expressed through their representatives, the members of the other Cottica N'djuka villages and the neighboring indigenous communities,
including the community of Alfonsdorp"24 and,

[u]ntil the Moiwana community members' right to property with respect to their traditional territories is secured, Suriname shall refrain
from actions-either of State agents or third parties acting with State acquiescence or tolerance-that would affect the existence, value, use
or enjoyment of the property located in the geographical area where the Moiwana community members traditionally lived until the
events of November 29, 1986.25

These pronouncements are consistent with previous findings of the Court and decisions of the Inter-American Commission on Human
Rights relating to rights of indigenous peoples. The Inter-American Commission has noted, in response to development activities
impacting indigenous peoples, that the failure of the state to ensure that consent was obtained violated indigenous peoples' right to
property.26 Additionally, the Inter-American Court has held that securing the right to property requires the delimitation, demarcation,
and titling of the territory belonging to the community.27

The findings in this case suggest that, in the context of the right to property, the nature and context of specific rights to PIC varies,
particularly in regards to local communities that are not likely to be considered indigenous but nevertheless have long established
relationships to natural resources in a particular locale. Essentially, more established, developed, and longer relationships to natural
resources by non-indigenous communities, often including customary laws and collective arrangements, result in these communities
possessing clearer rights to property, and, therefore, to prior informed consent.28

The right to culture is enshrined in the International Covenant on Economic, Cultural and Social Rights (ICESCR) and the International
Covenant on Civil and Political Rights (ICCPR).29 The ICCPR mandates, for example:
[I]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their own group, to enjoy their own culture, to profess and practise their own religion, or
to use their own language.30

As noted by the Human Rights Committee, established to monitor implementation of the ICCPR:

[C]ulture manifests itself in many forms. These can include a particular way of life associated with the use of land resources, especially
in the case of indigenous peoples.... The enjoyment of those rights may require positive legal measures of protection and measures to
ensure the effective participation of members of minority communities in decisions which effect them.31

The right to property and the right to culture, are not absolute. For example, in regards to property, the holder of a right has a duty to be
accommodating towards other interests. The state, in particular, has a right to expropriate property, but only if it is "in the public
interest," "general interest," or "social interest"-obligations listed in various international instruments.32

Interpretations of the significance of the right to property and other rights for indigenous peoples and other local communities do not
directly address how the right to prior informed consent relates, in practice, to the right of the state to act in the public interest. The case
involving the Maya Indigenous communities in Belize, heard by the Inter-American Commission on Human Rights, involved, at least
partially, land that Belize designated "reservation" land pursuant to a national law that recognizes Belize's authority to expropriate land in
the public interest. Despite this action by Belize, the Commission determined that indigenous peoples occupying the area continued to
have rights to the land and were entitled to prior informed consent for its use. The Commission in this case did not question that the state
had the right to expropriate (or otherwise use) natural resources in the public interest. The Commission suggested by its actions,
however, that the state's right to act in this regard was not unqualified; the state was obligated to consider and, in some circumstances, to
defer action to establish a protected area in response to the relationship of indigenous peoples to the land and their right to PIC.33

It is clear that the right to property and the right to culture cannot, in all circumstances, prevent the state from acting to expropriate or
otherwise manage land in the public interest. However, as elaborated in Section II(C), securing these rights for indigenous peoples and
other local communities with a significant relationship to natural resources requires, at the very least, implementation of safeguards for
the rights and concerns of indigenous peoples and other local communities with significant ties to natural resources.34

2. The Right to be Free from Discrimination

International law prohibits all forms of racial discrimination. Discrimination against indigenous peoples that impacts natural resources
traditionally used and occupied by them has been of specific concern.35 For example, the Committee on the Elimination of Racial
Discrimination (CERD), which interprets the Convention on the Elimination of All Forms of Racial Discrimination, highlighted in its
Recommendation XXIII that indigenous peoples' loss of land and resources to "colonists, commercial companies, and State enterprises"
has created, and is still creating, discrimination against indigenous peoples, depriving them of their human rights and fundamental
freedoms.36 As noted by legal expert Claudio Grossman, "one of the greatest manifestations of this [racial] discrimination has been the
lack of effective state guarantees for the traditional forms of use and possession of lands and resources belonging to indigenous
groups."37

The Convention on the Elimination of All Forms of Racial Discrimination highlights the significance of this right in supporting the
enjoyment of other rights, such as the right to own property, the right to equal participation in cultural activities, and the right to freedom
of movement and residence within the border of the state.38

The CERD stated that addressing discrimination against indigenous peoples requires recognition and implementation of their right to
prior informed consent. It notes that states should "ensure that members of indigenous peoples have equal rights in respect of effective
participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent."39
It calls on states to "recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands,
territories and resources."40 In applying this recommendation to subsequent evaluations of periodic reports submitted by Parties to the
Convention, the CERD has noted that several countries, including Botswana, Ecuador, Bolivia, Ethiopia, and Australia, violated the right
to be free from racial discrimination by allowing activities by the government and private companies to occur on indigenous lands
without the prior informed consent of indigenous peoples.41
The Botswana observation is particularly relevant to actions to establish protected areas. The CERD observed that the Basarwa/San
peoples "are reported to suffer from cultural, social, economic and political exclusion, do not enjoy group rights to land, and do not
participate in the House of Chiefs."42 In this context, the dispossession of the Basarwa/San people from their land and their resettlement
outside the Central Kalahari Game Reserve did not respect their political, economical, social, and cultural rights. Noting
Recommendation XXIII and the need for prior informed consent of indigenous peoples prior to decisions relating to their interests, the
CERD recommended that negotiations with the Basarwa/San and non-governmental organizations be resumed and that a rights-based
approach to development be adopted.43

In its concluding observations on Ethiopia, the CERD similarly highlighted the importance of prior informed consent in the context of
establishment of protected areas, stating, "[i]n the light of its General Recommendation 23 (1997) on indigenous people, the Committee
recommends that the State party provide ... information on the effective participation of indigenous tribes in the decisions relating to their
rights and interests, including informed consent in the establishment of national parks... ."44

Similarly, when expressing concern about the establishment of a protected area on the ancestral forestland of the Veddas, the indigenous
people of Sri Lanka, the CERD highlighted Recommendation XXIII and its emphasis on the need for "States parties to recognize and
protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources."45

These evaluations of periodic reports emphasize the need for "special measures" pursuant to the Convention on the Elimination of all
Forms of Racial Discrimination.46 As noted in the 1997 IACHR report of the human rights situation in Ecuador,

Within international law generally, and inter-American law specifically, special protections for indigenous peoples may be required for
them to exercise their rights fully and equally with the rest of the population. Additionally, special protections for indigenous peoples
may be required to ensure their physical and cultural survival-a right protected in a range of international instruments and conventions.47

In the review of Botswana's human rights report, the CERD recommended "that the State party identify further the specific needs of
persons belonging to minorities and indigenous peoples and adopt special measures to enhance equal enjoyment of human rights among
the various sectors."48

3. The Right to Self-Determination

Many indigenous peoples and advocates on their behalf believe that the right to self-determination provides an essential legal basis for
the right to control their traditionally owned or otherwise occupied and used lands, territories, and resources. This right is implicitly and
explicitly articulated in several treaties and other international instruments, including the ICCPR and the ICESCR, both of which employ
the following language:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their
economic, social, and cultural development.

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out
of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be
deprived of its own means of subsistence.

The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination, and shall respect that right in conformity with the provisions
of the Charter of the United Nations.49

A few states and some legal experts do not agree that the term "peoples" in this context applies to indigenous peoples.50 Among most
legal experts and states, however, the primary disagreement centers not on whether this term applies to indigenous peoples, but on
precisely what the right to self-determination means for indigenous peoples.51

For many indigenous peoples, the central focus of the right to self-determination is the right to control access to natural resources. Does
the right to self-determination, as defined by the current status of international law, support an absolute right by indigenous peoples to
allow-as well as prohibit-access to natural resources?
Some authorities on indigenous issues argue affirmatively that the right is absolute. One such authority argues that the phrase "in no
case" in the final sentence in paragraph 2 of Article 1 indicates that the right to control access to natural resources is an absolute right.52
Other experts recognize that calls for equating self-determination with "autonomy," "self-government," and control over natural
resources often occur with an understanding that the relationship of indigenous peoples with the state envisions the participation of the
state in decisions relating to the natural resources.53 Such relationships with the state can vary significantly. One expert observes, "[t]he
kinds of autonomy regimes which indigenous peoples operate or aspire to vary enormously, influenced in part by the geographical and
demographic setting."54

The U.N. Draft Declaration on the Rights of Indigenous Peoples, adopted by the U.N. Human Rights Council and forwarded to the U.N.
General Assembly, which recently decided to delay a vote on it, is probably the best articulation to date of what most states are willing to
recognize with regards to indigenous peoples' self-determination and the right to PIC.55

Two articles of the U.N. Draft Declaration explicitly reference self-determination. Article 3 recognizes that "[i]ndigenous peoples have
the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social,
and cultural development."56 Article 4 further elaborates on this right, noting that, "[i]ndigenous peoples, in exercising their right to self-
determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions."57 Subsequent articles, however, provide additional explanation.

Six articles in the Declaration explicitly reference PIC and others clearly relate to PIC. Only twice does the language referencing PIC
clearly prohibit action without consent of the indigenous peoples at issue. Article 10 states, "[n]o relocation shall take place without the
free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation. .. ."58 Article
29 requires, "[s]tates shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place ... without
their free, prior and informed consent."59

Otherwise, the language of the Declaration suggests a strong presumption in favor of indigenous peoples' right to control natural
resources, including clear recognition of their right to consent to an activity. However, the language does not clearly embrace the right to
prevent an activity by withholding consent. Article 19, for example, provides, "[s]tates shall consult and cooperate in good faith with the
indigenous peoples concerned... in order to obtain their free, prior and informed consent before adopting and implementing ... measures
that may affect them."60 Article 32 includes the same language relating to obtaining free, prior and informed consent, but adds "prior to
the approval of any project affecting their lands or territories and other resources."61 The language requires the state to act in good faith
to obtain consent, but not as clearly as in Articles 10 and 29, and prohibits the state from acting when good faith efforts to obtain consent
are not successful. Finally, other references to PIC seek primarily to ensure that redress is provided in the absence of PIC.62

Other articles do not reference PIC explicitly, but instead include language that has been interpreted as requiring PIC. Article 26, which
explicitly addresses the right of indigenous peoples to natural resources. The pertinent language includes, "[i]ndigenous peoples have the
rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired," and
"[i]ndigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of
traditional ownership or other traditional occupation or use ... States shall give legal recognition and protection to these lands, territories
and resources."63 As noted above, language recognizing the right to property in the American Convention on Human Rights and the
American Declaration of the Rights and Duties of Man has been interpreted as requiring that the state ensure that prior informed consent
is obtained from indigenous peoples and other local communities with significant ties to natural resources before any activity that may
adversely impact their ability to enjoy these resources.64 The Convention and Declaration, however, both recognize a right of the state to
act in the public interest.65

To what extent does the Declaration embrace an absolute right to PIC? Although Articles 10 and 29 clearly prohibit action without
consent, and contain no language qualifying the right to PIC, language in the final Article, Article 46, can be interpreted as providing
opportunities for state action in the public interest under very limited conditions. This Article states:

The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law, in accordance
with human rights obligations. Any such limitation shall be non-discriminatory and strictly necessary solely for the purpose of securing
due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a
democratic society.66
Such an understanding of the relationship of the right of indigenous peoples to self-determination and PIC, to a state's right to permanent
sovereignty over natural resources is consistent with assessments of international law by some international legal experts. Shrijver, for
example, explains that the "rights of indigenous peoples to the natural resources of their lands are at first glance similar to those of States
(to be) derived from the principle of permanent sovereignty. . . . but the decisive authority as regards use and exploitation of indigenous
lands and their natural resources ultimately rests with the State."67 He cautions, however, that "[s]tates are under an obligation to
exercise permanent sovereignty on behalf and in the interests of their (indigenous) peoples" and that expropriations by states in the
public interest often fail to address, adequately, the rights of indigenous peoples.68

B. RIGHTS OF STATES AS SOVEREIGNS TO MANAGE NATURAL RESOURCES

Most international legal experts agree that international human rights norms do not provide indigenous and other local communities with
an absolute right to say "no" in every context to proposed activities that might impact their land or other natural resources. At the same
time, the right of states to permanent sovereignty over natural resources includes the "duty to respect the rights and interests of
indigenous peoples,"69 as well as a duty to satisfy other conditions of international law.

International law, as well as many national laws, recognizes that a state has the right, pursuant to its authority as a sovereign entity, to
manage natural resources within the state.70 However, a state's authority to manage natural resources is not without bounds. The exercise
of this right must accord with several requirements: the proposed activity must be in the public interest; just compensation must be paid;
and making public interest determinations and meeting just compensation requirements must include equal access to, and participation
in, government processes and judicial review.71 As noted above, in most instruments recognizing a right to property and a right to
culture, a concomitant right of the government to manage the property "in the public interest," or "general interest," or "social interest" is
recognized.72

The state's exercise of this sovereign right to manage natural resources in the public interest occurs within the context of, and must be
responsive to, public international law more generally. As noted by one expert on international law, "[i]n practice, modern sovereigns
have never had total license or absolute authority over everything. . . . 'Sovereignty is a legal status within but not above public
international law. . . . As a juridical status protected by international law, it is embedded within the normative order of this law.'"73
Because the exercise of this right must be responsive to public international law, within which the rights of states as sovereigns are
"embedded," it is reasonable to conclude that PIC and associated rights, including the rights to be free from racial discrimination, to self-
determination, to property, to culture, as well as other rights, relate to and must necessarily influence how any state manages natural
resources in the public interest.

C. RELATIONSHIP OF THE RIGHTS OF COMMUNITIES TO THE RIGHTS OF STATES

1. The Rights of States in Relation to the Rights of Communities to PIC

As noted earlier, the strong relationship of indigenous peoples and some other local communities to natural resources is a key reason why
international law compels recognition and implementation of indigenous peoples and other local community rights to PIC. Satisfaction of
these rights must occur prior to any official taking of natural resources that a qualified community uses or occupies. Additionally,
international law recognizes the need for special measures to address past and current barriers to full participation of local communities
in processes that impact them.

International law also recognizes the right of states to act in the public interest under certain conditions. No official interpretation of
international law exists, however, to describe specifically how the rights to PIC of indigenous peoples' and other local communities relate
legally, or in practice, to the rights of states to manage natural resources in the public interest. But several factors that influence this
relationship can be gleaned from interpretations of international law previously described in this Article. These include the following:

* Are there indigenous peoples or other local communities with significant physical, spiritual, and cultural ties to the natural resources at
issue?

* Are the potential impacts significant? For example, will communities need to resettle? Will cultural values be impacted? Will
livelihoods be impacted?
* Are there continued barriers to full participation of indigenous peoples and other local communities in the political process or decision-
making?

* To what extent does the national framework of laws recognize the rights of indigenous peoples and other local communities to
participate in decisions regarding natural resources they use or occupy?

One conclusion that can be drawn from international law cases and other interpretations of international law is that good faith efforts to
obtain PIC with a view to reaching mutual agreement are required when indigenous peoples and other local communities with significant
ties to natural resources are involved, when impacts to these communities may be significant, and when discriminatory barriers exist to
full recognition of their rights. Furthermore, these efforts are required before a state seeks to expropriate or otherwise assume
management authority in the public interest over any area with significant ties to a local community. In the course of official processes
for determining whether an envisioned action is in the public interest, the need to obtain PIC from communities may become evident, as
will be discussed later.

The requirement to seek PIC from local communities prior to the establishment of protected areas has been embraced by some states,
including the Philippines. For example, despite recognition in national law of the right of the state to expropriate land to establish
protected areas in the public interest, the Philippines requires that no eviction or resettlement of indigenous communities shall occur
during the establishment of protected areas without the consultation and consent of potentially affected local communities. Additionally,
all rules and regulations governing ancestral lands within protected areas, "whether adversely affecting said communities or not, shall be
subjected to notice and hearing to be participated in by members of the concerned indigenous community."74

In the context of establishing protected areas, some state-level efforts to secure and sustain legal rights to PIC are likely to involve
national security issues. To be successful, they may ultimately include a requirement for non-state actors to obtain some type of sanction
or "social license" to move forward.75

2. Local Property Rights and State Action in the Public Interest

International law recognizes the legal authority of states to expropriate property in the "public interest." At the same time, international
law constrains this authority in three ways. For a state to legally expropriate property the following requirements must be met: (1) any
expropriation must be in the "public interest"; (2) just compensation must be paid; and (3) official decision-making processes must be
non-discriminatory and provide equal access to and participation in government processes.76

Many, if not most, states have enshrined these or similar requirements in national law, requiring that activities likely to interfere with the
right to property must be in the public interest; on payment of just compensation; and in accordance with due process of law, access to
fundamental justice, or similar requirements.77

The Draft Declaration on the Rights of Indigenous Peoples echoes these requirements in the context of actions that impact indigenous
peoples' rights. Article 46 of the Declaration indicates that state action must be non-discriminatory and, as elaborated below, further
defines the "public interest" requirement.78

a. The "Public Interest" Requirement

As already noted, most states have laws recognizing a state's right to expropriate or otherwise manage natural resources in the "public,"
"social," or "national" interest. More specifically, these laws provide that when a proposed activity is in the public interest, individual or
community rights (such as the right to property) can be limited by the state's right to expropriate or otherwise exercise its authority to
manage natural resources. But the proposed measure or activity must in fact be in the public interest; mere assertions that an activity is in
the public interest are legally inadequate.79

The public interest requirement has a long-standing history in international law. For example, Paragraph Four of the 1962 United Nations
General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources declares, "[n]ationalization, expropriation or
requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding
purely individual or private interests, both domestic and foreign."80

A review of cases decided by international human rights bodies, as well as state courts, reveals two general criteria for evaluating
whether a proposed measure is in the "public interest": (1) the activity must have a legitimate aim; and (2) the interference must strike a
fair balance between the public interest and the interests and rights of those impacted, ensuring a "reasonable relationship of
proportionality" between the activity and the impacted rights.81

i. Activity Type Must Have a Legitimate Aim

To satisfy the first criteria, the activity must serve a legitimate objective that is actually in the public interest. Establishing that a
proposed activity has a legitimate public interest aim is a relatively easy task. The term "public interest" is defined broadly by national
and sub-national laws, and both public activities and private activities that promote a public purpose have been considered to be
legitimately in the "public interest." Additionally, according to international law and state-court interpretations of national law, national
determinations that a given activity has a legitimate public interest objective generally enjoy a "wide margin of appreciation."

Some states permit almost any activity under the broad requirement of "public interest."82 Others define "public interest" to mean a
specific list of activities, although these too are often broadly interpreted. For example, Kenya's constitution allows property rights to be
taken if "necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or
the development or utilization of property so as to promote the public benefit."83 Other states provide equally broad lists.84

Zimbabwe's constitution permits taking of "[a]ny land, where the acquisition is reasonably necessary in the interest of defense, public
safety, public order, public morality, public health, town and country planning or the utilization of that or any other property for a
purpose beneficial to the public generally or to any section of the public."85 In addition, Zimbabwe permits taking of land, provided that:

the acquisition is reasonably necessary for the utilization of that or any other land-(A) for settlement for agricultural or other purposes; or
(B) for purposes of land reorganization, forestry, environmental conservation, or the utilization of wild life or other natural resources; or
(C) for the relocation of persons dispossessed in consequence of the utilisation of land for a purpose referred to in subparagraph A or
B.86

The State Supreme Court of Zimbabwe has held that, "[i]n reviewing whether a government ministry's pension scheme was in the 'public
interest'. . .. National authorities are, in principle, better placed than the judiciary to appreciate what is for the public benefit given their
superior knowledge and experience of society and its needs and familiarity with local conditions." Additionally, "[t]he courts should
allow a wide margin of appreciation for the government's assessment."87

The Canadian Constitution recognizes that compelling and substantial legislative objectives can sometimes justify infringement of
aboriginal rights.88 As noted in Delgamuukw, these objectives include: "the development of agriculture, forestry, mining and
hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered
species, and the building of infrastructure and the settlement of foreign populations to support those aims."89

The United States Supreme Court has interpreted "public use" to include public safety, public health, facilitation of transportation, supply
of water, public parks, historic interests, and promotion of beautification.90 For example, in Berman v. Parker, the United States
Supreme Court held that legislative declarations of the public interest are "well-nigh conclusive," and thus receive deferential
treatment.91 In Hawaii Housing Authority v. Midkiff, the Court held that it "will not substitute its judgment for a legislature's judgment
as to what constitutes 'public use' unless the use is palpably without reasonable foundation."92 More recently, in Kelo v. City of New
London, the Court broadened its interpretation of "public use" to use of private land by a private entity for the public purpose of
economic development.93

The European Court of Human Rights recognizes that the transfer of property rights from one individual to another may constitute a
legitimate means for promoting the public interest. It has observed that this finding is consistent with understandings in other
"democratic countries."94 In Mellacher and Others v. Austria, the European Court held that,

[i]n order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a
problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such
measures. The Court will respect the legislature's judgment as to what is in the general interest unless that judgment is manifestly without
reasonable foundation.95

In most nations, the establishment of protected areas is a type of activity that would be considered to have a legitimate public interest
aim. A second level of analysis, however, is needed to establish that any specific proposed activity has a legitimate public interest aim in
its own particular context. Government determinations in this regard typically enjoy qualified deference. Presumably, if a government is
challenged with evidence that the proposed activity does not have a legitimate aim, the government would need to provide evidence to
refute this challenge. As described in the following section, when, and if, it has been determined that the proposed activity has a
legitimate public interest aim, the public interest objective must be balanced against the rights of those potentially impacted by the
activity.

ii. The Impact of the Proposed Activity Must be Proportional to Other Interests and Rights of Those Impacts

Legal process often takes into account the proportional impacts of proposed measures or actions. Regarding human rights, the
"proportionality" requirement has been examined most closely by the European Court of Human Rights. European Court of Human
Rights cases interpreting the right to property draw from and support decisions from the broader body of European case law expounding
on the "proportionality principle," a general principle of European community law.

In interpreting Article 1, Protocol 1 to the European Convention on Human Rights, which articulates the Right to Property, the Court has
promulgated several key decisions. The decisions articulate a requirement that the state balance the severity of a prospective interference
with a legal right with the importance of the social need for action. This is necessary to ensure that any potential adverse impact is
"proportional" to the need for action.

One of the first European Court of Human Rights cases to examine proportionality in the context of an interpretation of Article 1 of
Protocol 1 is the Belgian Linguist case.96 It addressed the connection between property rights and the concomitant right of the state to
expropriate property in the public interest and supported the general need for a proportionality determination. The following language in
the case guides current interpretations by the Court: "The Convention . . . implies a just balance between the protection of the general
interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter."97

Although proportionality has not been codified, scholars examining this case law have concluded that "proportionality" is often
determined by consideration of three factors: suitability, necessity, and the absence of disproportionate impact.98 In the context of state
action that potentially impacts indigenous peoples, such a consideration is consistent with the recognition in the Draft Declaration on the
Rights of Indigenous Peoples that state expropriations must be strictly necessary and solely for the purpose of securing due recognition
and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.99

"Suitability" requires that a measure affecting a protected interest (for example, the right to property) be causally linked to the purpose
being pursued.100 If applied in the context of protected areas, the "suitability requirement" likely requires that proposed area activities be
reasonably likely to achieve biodiversity-protection and other related objectives.

"Necessity" requires that the proposed measure be indispensable to achieving the objective pursued.101 In the context of establishing a
protected area, this requirement suggests that if an alternative measure is likely to achieve the same biodiversity-protection goal in a
manner less restrictive to human rights, the proposed protected area activity may not be "necessary."

The third factor is an "absence of disproportionate impact." This requires that the disadvantages to which a contested measure gives rise
do not exceed its advantages, regardless of the existence of a less restrictive measure.102 Application of this requirement to protected
area activities means that even if a protected area is indispensable to achieving biodiversity protection objectives, the advantages of
establishing the protected area must outweigh the disadvantages resulting from impact to the rights and interests of local communities. If
these rights and interests are significant, the need for the protected area may not outweigh the countervailing need for protection of these
rights and interests.

In Sporrong and Lonnroth v. Sweden, the European Court of Human Rights eluded to the necessity requirement in embracing the idea
"that an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; then this being
assessed, full weight must be given both to the interests of the individual and to the public interest."103

Other cases have elaborated on the need to avoid disproportionate impact. The Court in James v. United Kingdom, for example,
determined that while the public interest determination was not "manifestly unreasonable," "this does not settle the issues. . . . [T]here
must also be a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised.'"104 In Jahn
and Others v. Germany, the Court considered "whether [a] public-interest aim was sufficiently weighty when it came to considering
whether the [state's] interference was proportionate."105 The Court ruled:
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the
community and the requirements of the protection of the individual's fundamental rights. . . . In particular, there must be a reasonable
relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his
possessions.106

Several national and sub-national sources of law include these or similar factors in examining the relationship between a proposed
activity and a specified public interest objective. Kenya's Constitution provides one example. It defines criteria by which specific
activities are evaluated to determine whether they are in the public interest. Section 75(1) provides:

No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description
shall be compulsorily acquired, except where the following conditions are satisfied

(a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public
health, town and country planning or the development or utilization of property so as to promote the public benefit and the necessity
therefor is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest in or right
over the property. . . .107

Similarly, prior to a taking of private property, the state of California requires a "resolution of necessity." This requirement mandates
government to assess necessity and impact. More specifically, the government must find and determine the following:

(1) The public interest and necessity require the proposed project;

(2) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least
private injury;

(3) The property described in the resolution is necessary for the proposed project; and

(4) That either the offer required by [California law] has been made to the owner or owners of record, or the offer has not been made
because the owner cannot be located with reasonable diligence.108

In Dolan v. City of Tigard, the U.S. Supreme Court held that there must be a "rough proportionality" between the projected impact of the
project and the required dedication.109 The Court held: "No precise mathematical calculation is required, but the city must make some
sort of individualized determination that the required dedication [of land for public use] is related both in nature and extent to the impact
of the proposed development."110

Recognizing the significance for indigenous peoples of this balancing of interests, states such as Canada and the Philippines explicitly
require that there be a balancing of interests, rights, and benefits before a "public interest" activity likely to impact indigenous peoples
can proceed.111 For example, the Canadian Supreme Court in Haida Nation v. British Columbia, interpreting the Constitution Act of
1982, determined that, "what is required is a process of balancing interests, of give and take" and "[t]he duty's fulfillment requires that
the Crown act with reference to the Aboriginal group's best interest in exercising discretionary control over the specific Aboriginal
interest at stake.112

Philippine national law relating to protected areas gives greater weight to the property rights of indigenous communities. It requires the
following:

Ancestral lands and customary rights and interests arising shall be accorded due recognition. The DENR [Department of Environment
and Natural Resources] shall prescribe rules and regulations to govern ancestral lands within protected areas: Provided, That the DENR
shall have no power to evict indigenous communities from their present occupancy nor resettle them to another area without their
consent: Provided, however, that all rules and regulations, whether adversely affecting said communities or not, shall be subjected to
notice and hearing to be participated in by members of concerned indigenous community.113

As noted earlier, international and state courts generally show deference to government determinations that a given activity satisfies the
public interest test. This deference to government decision-making, however, is not absolute. Based on the facts of a given case,
deference does not preclude a court from finding that a proposed activity is not likely to achieve a specified public interest objective and,
therefore, should not be allowed.
Clearly, involuntary relocation or otherwise constraining the activities of indigenous or other local communities to a given area is often
not the best approach for promoting biodiversity conservation objectives. Furthermore, the impact of such an approach is often severe-
resulting in loss of culture and traditional knowledge, livelihood, and perhaps the continued existence of a community.

Evaluating the necessity of the action, based on an assessment of factors, such as the causes of the loss of biodiversity and the
contributions of local communities to biodiversity protection, could reveal that the best approach to such protection is maintaining the
status quo. This would mean that indigenous peoples and other local communities continue to have recognized legal authority to manage
the area. They could decide to be informal partners with proponents of the protected area, co-managers of the area, or participate in
another arrangement.114

As an increasing number of scholars and field researchers have concluded, the causes of biodiversity loss are related less to internal
pressures, those brought by indigenous peoples and other local communities, and more to pressures exerted by external forces.115
Indeed, several experts have noted that high biodiversity in a given area often is related to occupancy and management of an area by
local people with a significant relationship to the surrounding resources.116 In many instances, indigenous peoples' ability to manage
resources actually bolsters biodiversity conservation.

The preservation of traditional knowledge, local culture, and land stewardship practices enhances biodiversity conservation and also
contributes to other "public interest" values, including cultural diversity, development of medicines, and tourism.117 Moreover, respect
for, and attention to, the needs of indigenous peoples and other local communities can enhance protection of national security-a primary
factor driving recognition in the Philippines of the rights of indigenous peoples and other local communities to prior informed consent
for resettlement activities, especially when related to the establishment of protected areas.118

If it is determined that establishing a protected area is, in fact, in the public interest, those impacted by a decision to proceed must be
compensated adequately for their losses.

b. Payment of Just Compensation Requirement

It is a widely accepted principle of international law that persons whose property is taken should be compensated.119 For instance,
Paragraph Four of the 1962 United Nations General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources
declares:

Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest
which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be
paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty
and in accordance with international law.120

The requirement for just compensation relates closely to other requirements for state action that might interfere with property rights. In
the context of protected areas that may be established on lands used or occupied by indigenous peoples or other local communities, the
burden imposed by the taking is not likely to be merely financial, but also cultural, political, and environmental. Thus, in order to be just,
compensation to indigenous communities for expropriated territories and the natural resources they encompass should consider more
than market value; the state should consider close relationships to ancestral domains and their importance for the cultural, political, and
social well-being of local people.

According to the European Court of Human Rights, compensation is a key factor in the balancing of "public interests" with human rights.
In John and Others v. Germany, the Court considered "whether [a] public-interest aim was sufficiently weighty when it came to
considering whether the [state's] interference was proportionate." It found Germany's taking to be a disproportionate burden because the
applicants did not receive any compensation for the taking.121 The Court added that although "the lack of compensation does not of
itself and always make the State's taking of the applicants' property unlawful,"122 in this case, the applicants suffered a disproportionate
and excessive burden from the taking.

Similarly, South Africa's constitution guarantees that for a determination of just compensation, a balance must be struck between the
public interest and the interests of those affected by a taking. Article 25(3) of the constitution declares, "The amount of the compensation
and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the
interests of those affected, having regard to all relevant circumstances."123
Language such as that cited above requires compensation to people other than those who have recognized titles to the expropriated
property. This will often be important for indigenous peoples and other local communities that are dependent on expropriated land, even
if they do not own it according to national land and natural resources laws. Despite decades of political independence, and even with the
presence of democratic institutions, recognized ownership is virtually impossible to obtain in some countries; in many places, national
land laws still emanate from colonial-era principles that severely limit access to formal property rights for indigenous peoples.124

Considering compensation in the context of indigenous peoples, the Supreme Court of Canada held, in Delgamuukw v. British
Columbia, that "lands held pursuant to aboriginal title have an inescapable economic component which suggests that compensation is
relevant to the question of justification as well. Fair compensation will ordinarily be required when aboriginal title is infringed."125

To ensure that compensation is proportional to the effects of the state's taking, compensation may not always be exclusively in the form
of money. To preserve the economic, cultural, political, and social rights of affected communities, the state may be obliged to provide
alternative sources of income, establish community services such as health centers and schools, construct infrastructure such as roads, or
ensure access to resources essential to that community's survival.126 The Burrup Peninsula Agreement in Australia, in which the state
acquired land from indigenous peoples for the construction of a heavy industry estate, illustrates an alternative compensation to money.
The Agreement provided displaced peoples with "land, cultural heritage and environmental protection, financial compensation,
residential and commercial lands, improved roads, housing, education, employment and training."127 Of course, laws and practices
relating to compensation vary among countries, as will treatment of indigenous peoples and other local communities with respect to
compensation. But just compensation and fair consideration of the concerns of and impacts on locally affected groups are required.

c. Official Decision-Making Processes are Adequate

Determinations of public interest and just compensation are useful and legitimate only to the extent the official processes and
mechanisms relied on ensure that the interests of potentially affected communities and individuals are seriously considered and factored
in to final decisions. Indeed, the deference provided by courts to legislative and other governmental findings of "public interest" is
premised on the idea that those potentially impacted by a proposed activity are effectively engaged in the decision-making process.

In practice, the interests, rights, and concerns of indigenous peoples and other local communities are often not represented or even
considered. The lack of effective engagement in official decision-making processes by these communities often results from
discrimination, indifference, or the failure of governments to provide meaningful opportunities for effective engagement in official
decisionmaking processes-factors that often are related.

When states seek to exercise their permanent sovereignty in the interest of the well-being of the people, as is their duty, they too often
fail to recognize that:

[I]n practice the inhabitants of a State are often not a homogenous community but may be composed of various peoples and minorities,
including indigenous peoples. This raises the issue of State control and development of natural resources as possibly being contrary to
the well-being of indigenous peoples within its territory.128

Such activities fail to recognize that states must "exercise permanent sovereignty on behalf and in the interests of their (indigenous)
peoples."129 Indigenous peoples' representatives have repeatedly raised concerns about the failure of states to respect indigenous
interests when states act in "the public interest."130

International law requires that the legislative, judicial, and administrative processes and mechanisms by which a state acts in the public
interest provide equal (non-discriminatory) opportunities to all to participate in government, as well as opportunities to pursue judicial
review of government activities that impact local communities' rights.131

Various approaches to participation of minorities in public processes have been described. Such approaches are examined in The Lund
Recommendations on the Effective Participation of National Minorities in Public Life, which were developed by a body of independent
experts examining the commitments of European States and have been described as an "authoritative interpretation of the relevant
international standards on political participation and minorities."132 These include approaches to facilitate effective participation in
official decision-making processes at national, regional, and local levels, as well as changes in voting systems, veto rights, and non-
territorial arrangements.133
These approaches may be useful for facilitating the participation of indigenous peoples that are in the minority. However, because
indigenous peoples enjoy rights to which other minorities are not entitled, additional approaches may be necessary to secure the rights of
indigenous peoples.134

In describing the right to participation, one authority on minority participation in government noted:

For members of ethno-cultural minorities, the right of political participation means more than the right to seek to influence the outcome
of a process designed to aggregate individual preferences to find a decision acceptable to a majority of citizens. This is clear from the
'Lund Recommendations' on Effective Participation of National Minorities in Public Life (1999). Recommendation 1 provides:
participation of national minorities in public life is an essential component of a peaceful and democratic society. Experience in Europe
and elsewhere has shown that, in order to promote such participation, governments often need to establish specific arrangements for
national minorities. These Recommendations aim to facilitate the inclusion of minorities within the State and enable minorities to
maintain their own identity and characteristics, thereby promoting the good governance and integrity of the State.135

Highlighting obstacles to effective political participation, this authority notes:

Certain restrictions, although on the face of things objective and reasonable, can disproportionately affect the right of minorities to
political participation. For nomadic minorities residence requirements may cause difficulties. Other problematic criteria include
citizenship and language restrictions. Rights of political participation, unlike other human rights, are granted only to citizens. Where, as
in parts of the former Soviet Union, individuals are excluded from citizenship by the application of restrictive, ethnically based, criteria
for citizenship or the use of language tests, this has the effect of disenfranchising large sections of the permanent population who are
nevertheless subject to the adopted laws.136

Others have identified reasons why the right to vote may not provide an effective voice for indigenous peoples and other local
communities, especially in regards to official decisions for establishing protected areas.137 These reasons include (1) unfamiliarity with
a decision-making process, that is not like their own, (2) lack of effective means to participate, and (3) lack of choiceindigenous
identities may not be recognized in national politics and indigenous voters' only practical choice may be to join a mainstream political
party.

In the context of the establishment of protected areas, laws and policies that govern actions in the public interest-including laws that
identify types of activities in the public interest, define the rights of local communities to land and other natural resources they use or
occupy, and describe the processes and mechanisms for participation of these communities in official decisions concerning these natural
resources-must be developed in a non-discriminatory way and with opportunities for effective participation of affected communities at
all levels of government decision-making. Moreover, mechanisms must exist for review of public-interest related decisions, including
decisions related to the property rights of those who occupy and use natural resources and people who have used or occupied the area
under consideration for many generations.

A variety of approaches may be pursued to secure effective participation of indigenous peoples and other local communities in decision-
making processes concerning the establishment of areas designated for conservation purposes. Such approaches may include special
measures. As noted by the Committee on the Elimination of Racial Discrimination, these measures may be necessary to address
discriminatory practices.138

The Lund Recommendations emphasize the need for consultations with local communities-either on an ad-hoc basis or through formal
advisory or consultative bodies composed of members of these communities.139 The importance of effective consultation to public
interest determination processes is highlighted in the Canadian Supreme Court cases, Haida Nation v. British Columbia and
Delgamoakw v. British Columbia, and is statutorily recognized in the Philippines.140

In its assessment of whether Canada adequately balanced the "public interest" with the rights of indigenous peoples, the Delgamuukw
and Haida courts considered, as a critical factor, whether effective consultation had occurred. The Haida court embraced the finding by
the Delgamuukw court that there is always a duty of consultation, which must be in good faith and with the intention of substantially
addressing the concerns of aboriginal peoples whose lands are at issue.141 A determination of whether an effective balancing of interests
had occurred may turn on whether consent has been obtained.142
In addition to requiring consultation and consent of communities prior to the eviction or resettlement of indigenous communities from
protected areas, the Philippines requires that all rules and regulations governing ancestral lands within protected areas, "whether
adversely affecting said communities or not, shall be subjected to notice and hearing to be participated in by members of concerned
indigenous community."143

Hearings are often employed to facilitate consultations for public interest determinations.144 Often these occur after a government
agency has initiated a proposal or made a decision to act. To the extent these hearings provide an effective means of consultation-in that
they are physically accessible to communities, proceed in a language understood by these communities, and are not perfunctory attempts
to legitimize an already-established government decisionthey can be useful approaches to effective and equal participation in public
interest determination and just compensation processes. But a certain degree of awareness and accommodation of local customs and
institutions is needed. In some communities, women may not be willing to voice their concerns when men are present, and therefore
separate hearings for women may be necessary-and especially valuable to garner information-in order to provide a meaningful
opportunity for all adults to express themselves.

It has been suggested that the referendum process may sometimes be a legitimate mechanism for making public interest determinations.
If a referendum is designed to ensure that all sections of each affected community can be heard, it may provide useful means to ascertain
the extent to which affected communities consider protected areas to be in their interest. Also, the process by which the referendum is
conducted is of utmost importance. Although referenda are a basic form of direct democracy, considerable concern exists that they may
not effectively address the interests of marginalized groups. For instance, one expert argues that referenda should not be used for land
zoning issues: they tend to be complex; the public often lacks adequate information to make informed decisions; and land use planning
may involve an array of technical issues.145 Conducting a referendum might also be inconsistent with local culture and customary laws;
minority interests may not be articulated or protected; and finally, referenda, like other political processes, are vulnerable to
manipulation.146

Whatever mechanisms are used, adequate, accurate, and available information is needed from the survey. Otherwise, indigenous and
other local communities will be unable to have meaningful voices in state-sanctioned processes for determining how best to conserve or
use natural resources in the "public interest." In the absence of adequate, accurate, and available information, it will also be impossible to
ascertain in advance whether the adverse effects of the state's actions will be discriminatory or disproportional to the stated aim of
establishing a protected area. For instance, forcibly removing indigenous communities from ancestral territories may arguably, in some
instances, be the only effective way to promote the state's particular biodiversity goals, but other means may exist to achieve the same
ends while respecting local communities' interests and rights.

Similarly, authentic referenda cannot be held if participants do not have access to adequate information about the consequences of their
decisions. Required information should include a clear identification and an assessment of the impact to communities and their natural
resources, the proposed public interest at stake, and other options for securing this public interest.147 This will often require a social and
environmental impact assessment (SEIA). According to guidelines adopted by Parties to the Convention on Biological Diversity, such a
SEIA should involve the full and informed participation of potentially affected communities.148

Effective mechanisms for review of final decisions are also necessary. These mechanisms must ensure that the nature and scope of rights
will be delineated, the possibility of judicial remedies will exist, and remedies, if appropriate, will be enforced. For example, in Awas
Tmgni v. Nicaragua, the Inter-American Court of Human Rights determined that Nicaragua failed to provide a mechanism to examine
and address the lack of recognition of fundamental rights of the indigenous community, and lacked legislation or other measures
necessary to give effect to these rights.149 As such, the Court concluded that Nicaragua violated its obligations under the Inter-American
Convention on Human Rights to ensure prompt recourse to a competent court or tribunal against acts that violate fundamental rights.150

Understanding how the rights of communities to prior informed consent for use of natural resources relate legally and in practice to the
rights of states is critical to the development of effective approaches for establishing protected areas. Only in understanding the roles and
responsibilities of non-state actors in this process will a full picture of the possible realm of activity be available. The following section
will describe the roles and responsibilities of non-state actors, particularly conservation organizations.

III. NON-STATE ACTOR RESPONSIBILITIES

States often act in concert with, or support the efforts of, non-state actors in establishing protected areas. This Section will examine the
responsibilities of non-state actors to indigenous communities in the establishment of protected areas and briefly examine and evaluate
the efforts of large non-governmental organizations to satisfy these responsibilities.

A. RESPONSIBILITIES UNDER INTERNATIONAL LAW

What are the responsibilities of non-governmental organizations to indigenous peoples and other local communities in the context of
establishment of protected areas? As non-state actors assume increased influence-significantly shaping the global economy, the global
environment, and policies and laws of states-international law is evolving to more clearly articulate the rights and responsibilities of
actors such as conservation organizations, including their rights and responsibilities vis-�-vis states.151

Most recently, the U.N. Office of the High Commissioner for Human Rights requested the appointment of a Special Representative to,
among other things, "identify and clarify standards of corporate responsibility and accountability."152 The Special Representative, John
Ruggie, has not yet completed all tasks within his mandate, but has mapped the international standards that currently govern corporate
activities in relation to human rights. Ruggie notes in his report that "[c]orporations increasingly are recognized as "participants" at the
international level, with the capacity to bear some rights and duties under international law,"153 and opines elsewhere that:

By far the most consequential legal development is the potential extension to companies of liability for international crimes, imposed
under domestic laws, but reflecting international standards in relation to genocide, crimes against humanity, and war crimes. Few
companies may ever directly commit acts that amount to international crimes. But there is greater risk of their facing allegations of
'complicity' in such crimes."154

He observes that "there appears to be little movement in the responsibilities corporations may have under international law for other
human rights violations," but notes that "[s]ome observers hold that the U.N. human rights treaties coupled with customary international
already impose direct legal responsibilities on companies. The U.N. Sub-Commission's Norms reflect this view and attributed the entire
spectrum of state duties under the treaties-to respect, protect, promote, and fulfill rights-to corporations within their 'spheres of
influence."'155 The International Commission of Jurists also supports this view.156

Ruggie notes that international human rights instruments clearly impose at least indirect responsibilities on corporations, "responsibilities
provided under domestic law in accordance with states' international obligations," and highlights that "the State duty to protect against
non-State abuses is part of the very foundation of the international human rights regime.157 The duty requires states to play a key role in
regulating and adjudicating abuse by business enterprises or risk breaching their international obligations." He indicates that the failure
of some States to have "internalized the full meaning of the state duty to protect and its implications with regard to preventing and
punishing abuses by business enterprises. . .gives rise to concern."158

B. TRANSNATIONAL CORPORATION RESPONSIBILITY AND NGOS

To what extent do any direct or indirect responsibilities of transnational corporations apply to other non-governmental organizations,
such as international conservation organizations that work to establish protected areas throughout the world? The definition of
"transnational corporation," as an "economic entity operating in more than one country or a cluster of economic entities operating in two
or more countries-whatever their legal form, whether in their home country or country of activity, and whether taken individually or
collectively," could apply to these organizations. According to the U.N. Glossary of Classification Terms, "economic entity" refers to:

[A] legal or social entity, or a group of entities, that engage(s) in economic activities and transactions in its/their own right, such as
corporations, non-profit institutions or government units. An economic entity has legal, administrative, or fiduciary arrangements,
organisational structures or other parties having the capacity to efficiently allocate resources in order to achieve objectives.159

Through their business transactions and otherwise, these organizations engage in economic activities that can significantly influence
government decisions.160 For example, The Nature Conservancy (TNC), Conservation International (CI), and the World Wildlife Fund
(WWF), significantly contributed to a ten million dollar "Debt for Nature Swap" that could have important impacts on decisionmaking
processes with respect to the use of Colombian forests inhabited by indigenous and other traditional peoples.161 The oversight
committee for this agreement includes these three NGOs in addition to representatives from the governments of Colombia and the United
States. Similar conservation programs involving millions of dollars have been carried out in Bangladesh, Belize, El Salvador, Peru, the
Philippines, and Panama.162
These NGOs may also qualify as "organs of society" that have responsibilities recognized by the Universal Declaration of Human
Rights.163

C. EFFORTS BY CONSERVATION ORGANIZATIONS TO RECOGNIZE THEIR HUMAN RIGHTS RESPONSIBILITIES

Toward recognition of these responsibilities, international conservation organizations such as WWF, CI, and TNC have adopted, in
various forms, standards or guidelines for engaging with indigenous peoples.164 In the Preamble to the WWF Statement of Principles on
Indigenous People and Conservation, WWF notes: "[Environmental and other non-governmental organizations, together with other
institutions worldwide, should adopt strategies with indigenous peoples, both to correct the national and international political, economic,
social, and legal imbalances giving rise to these destructive forces, and to address their local effects."165

The statement also contains language indicating WWF's willingness to adhere to international human rights standards. For instance, the
Statement of Principles establishes WWF's endorsement of the provisions concerning indigenous peoples contained in international
instruments such as Agenda 21, the Convention on Biological Diversity, ILO Convention 169 (Convention Concerning Indigenous and
Tribal Peoples in Independent Countries), and Draft U.N. Declaration on the Rights of Indigenous Peoples.166 In addition, the statement
makes several specific references to the rights of indigenous peoples to PIC. One such declaration notes: "WWF will not promote or
support, and may actively oppose, interventions which have not received the prior free and informed consent of affected indigenous
communities, and/or would adversely impact - directly or indirectly - on the environment of indigenous peoples' territories, and/or would
affect their rights."167

Similarly, Conservation International has adopted a policy that appears to embrace indigenous peoples' right to PIC. It states, "[CI] will
openly inform, consult and obtain the informed consent of formal representatives of indigenous groups prior to undertaking any actions
that are directly tied to indigenous peoples, their territories or natural resources."168

The Nature Conservancy's views on the right to PIC are less obvious. A description of its mission describes a "Commitment to People"
as one of The Nature Conservancy's "Seven Core Values," and states that TNC "respect[s] the needs of local communities by developing
ways to conserve biological diversity while at the same time enabling humans to live productively and sustainably on the landscape."169
This might include PIC, but it is far from clear.

In a Joint Policy Statement by the World Conservation Union (IUCN), the World Commission on Protected Areas (WCPA), and WWF,
on "Principles and Guidelines on Indigenous and Traditional Peoples and Protected Areas," these organizations agreed that "rights should
be respected in relation to the lands, territories, waters, coastal seas and other resources which they traditionally own or otherwise occupy
or use, and which fall within protected areas."170 One of the guidelines asserts that, in creating new protected areas, stakeholders,
including NGOs, should consider the following procedures:

a) collaborative research with the indigenous and other traditional peoples concerned for the identification of the features that make the
area suitable for protection;

b) initiation of formal processes to give legal recognition to indigenous and other traditional peoples' land and resource rights, if such
legal recognition does not yet exist;

c) agreement on the designation and management of the protected areas that involving the respective organizations and communities,
relevant government agencies, nongovernmental conservation agencies, and other stakeholders, including arrangements which will
ensure mutual accountability;

d) collaborative development of a management plan between the respective government and non-governmental conservation bodies and
the communities concerned.171

D. SHORTCOMINGS OF CONSERVATION ORGANIZATIONS' EFFORTS

Although these standards have been welcomed as a significant move toward recognition and implementation of the responsibilities of
NGOs in relation to human rights, they have been criticized for failing to fully address human rights obligations. Moreover, progress of
the organizations toward actual implementation of these standards has been criticized.172 One such criticism is that conservation
organization staff often do not make good faith efforts to undertake PIC effectively, if at all.173 Reportedly, local communities are not
made aware of their rights, information needed to make informed decisions is not made available to them, and opportunities for
meaningful decision-making are inadequate. Critics point to a lack of meaningful engagement on the ground with local communities as a
major obstacle to effective implementation of this right.174 As described in greater detail in a case study of the Cordillera del Condor
protected area, on-the-ground engagement with communities was key to ensuring that PIC was operationalized effectively.175

A related criticism is that, in practice, the right of communities to PIC is often not recognized and implemented until after the final
official decision has been made to establish a protected area. In most cases, local communities have no opportunity to participate in
discussions and decision-making processes related to whether a protected area should be established, nor are they allowed to participate
in other "upstream" processes.176

A major challenge is that enforcement of local participation "standards" is usually difficult. Mechanisms to monitor and enforce
community rights are rarely provided. Finally, in most instances, guidelines reference only indigenous peoples, leaving out protection of
many other local communities, including traditional and tribal ones and long-established migrant groups.

In addition to states, non-state actors seeking to establish protected areas have responsibilities to communities potentially impacted by
these areas. As described in the following section, recognition and implementation by these actors of the rights of communities to prior
informed consent can enhance the effectiveness of conservation efforts, and, in particular, efforts to "co-manage" protected areas.

IV. PRIOR INFORMED CONSENT AND CO-MANAGEMENT OF PROTECTED AREAS

This section will examine how recognition and implementation of the right to PIC can help ensure that efforts to secure conservation
objectives are more likely to be successful.

The right to PIC is sometimes viewed as helping to create opportunities for project proponents to sit with local communities to discuss
concerns and solutions.177 The right to PIC can likewise be useful for strengthening approaches to co-management of protected areas
and increasing the likelihood that "public interest" objectives for protected areas will be secured.

Recognizing the right to PIC in the context of co-managed protected areas would ensure that state activities ostensibly in the "public
interest" are not in violation of human rights. It would also promote greater awareness that many pressured "natural" ecosystems or
"wilderness" areas are in fact "human or cultural landscapes" resulting from millennia long interactions with forest-dwellers.178

Although the phrase "co-managed protected areas" reflects a variety of experiences around the world with different methods and results,
the World Commission on Protected Areas provides a definition that reflects the general characteristics of the concept: "Government-
designated protected areas where decision making power, responsibility and accountability are shared between governmental agencies
and other stakeholders, in particular the indigenous peoples and local and mobile communities that depend on that area culturally and/or
for their livelihoods."179

To be clear, the right to PIC will not always result in agreement to move forward with a protected area, including even co-managed
areas. Local communities may decide to say "no" to the proposal. When this occurs, the decision of the community should be respected,
although the decision could be reconsidered if later reasons for change are presented. Recognizing PIC in the co-management context
increases the likelihood that communities otherwise predisposed to saying "no" might be willing to work toward co-management-type
solutions. Additionally, for most local communities, it is likely to encourage greater participation toward, and enthusiasm for, protected
area objectives. It is also likely to diminish the potential for conflict. In other words, the right to PIC increases chances that communities
will be willing to work with governments and project proponents to establish protected areas and meet public interest objectives.

A brief review of the effects of some elements of existing co-management practices is illustrative. First, development of co-managed
protected areas to date has been characterized by very low levels of PIC. In most cases, governments or NGOs decide on the location,
size, and level of protection for protected areas, and then seek consent from local communities.180 This approach has not always been
effective, which has prompted some governments and other stakeholders to realize that they can benefit significantly from greater
"upstream" participation from communities.

Second, local communities can also benefit from co-management situations. Co-management projects require governmental willingness
to protect a particular public area and to share with local communities the power, responsibilities and benefits associated with
management of the area. Assurances from the government that the area will be protected, as well as investment of sufficient resources,
can provide security and stability that might not otherwise be available to local communities.
V. OPERATIONALIZING THE RIGHT TO PRIOR INFORMED CONSENT

As indicated in previous sections of this Article, states have obligations to ensure that the rights of communities to PIC are respected in
the context of the establishment of protected areas. Non-state actors also have PIC-related responsibilities to communities in this context.
This section will describe when, specifically, the rights of communities to PIC should be implemented and how PIC can be established.

As noted in section ILA, generally states are obligated to seek prior informed consent from indigenous peoples and other local
communities prior to activities that may impact land or other natural resources these communities use or occupy. section II(B), in turn,
indicated that when the human rights of local communities confront the public interest needs of the state, the rights of communities to
PIC are not absolute-states, in their capacity as sovereigns, have the right to act in the public interest. State sovereignty is similarly not
unlimited. Public interest determinations must provide due consideration of, and respond to, the rights of communities. These public
interest determinations could generate one of three outcomes that indicate when the rights of communities to PIC should be
implemented:

(1) The proposed protected area activities are not "suitable" or "necessary" for securing biodiversity protection goals, and therefore
should not be allowed to proceed without the prior informed consent of communities;

(2) The proportionality analysis-the balancing of the need for protected-area related activities with the impact on rights and interests-
indicates that the fundamental human rights of communities outweighs the need for protected area-related activities;

(3) The public interest determination process is so inadequate with respect to human rights that PIC is required to address these
shortcomings.

A. CHARACTERISTICS OF PIC

When it has been determined that PIC should be implemented, an approach to implementation must be pursued. Such an approach begins
with identification of the specific characteristics of PIC.

Various characteristics of PIC have been identified. These include the following:

* Free: Decision-making and information-gathering by potentially affected people(s)/communities must in no way be limited by
coercion, threat, manipulation, or unequal bargaining power. Consent must be entirely voluntary.181

* Prior: To be meaningful, informed consent must be sought sufficiently in advance of any decisions by the state or third parties, or any
commencement of activities by the project proponent that will affect people(s)/communities and their lands, territories, and
resources.182

* Informed: Disclosure of information concerning the nature, purpose, expected impacts, risks, and benefits of the proposed development
must be made fully and accurately, in a form that is both accessible and understandable to the affected people(s)/communities with an
understanding of how they specifically will benefit, and how these benefits compare to projected impacts and potential worst-case
scenarios (and alternatives). Furthermore, potentially affected people(s)/communities must be fully informed of their own rights and
understand the legal processes guiding implementation of the project.183

* Consent: Consent does not necessarily mean that every member of affected people(s)/communities must agree, but rather that consent
will be determined pursuant to customary law and practice, or in some other way agreed upon by the community. The affected
people(s)/communities need to specify which person/entity will represent them, and the project proponents must respect the
representative(s) chosen by the community as the only legitimate provider(s) of consent.184 For many persons, the term "consent"
connotes that the consent must be un-coerced and entirely voluntary; for these persons, the term "free" is redundant.

As noted in section II, while the definition of PIC for local communities varies by context, it is generally described as a consultative
process whereby potentially affected communities engage in an open and informed dialogue with individuals interested in pursuing
activities in the area(s) occupied or traditionally used by the affected community. Discussions should occur prior to, and continue
throughout, the time the activity is conducted, and communities should have the right to withhold consent at decision-making points
during the project cycle.185 At no time should consent be coerced.
This definition frames PIC both procedurally and substantively. Although the right to consent might be construed technically only as a
substantive outcome, the failure to view PIC as a process would undermine its utility for project proponents and communities as well as
undermine the principles supporting the right to consent. The failure to insure that communities are meaningfully involved in decision-
making processes throughout the project cycle makes acceptance of the project much less likely. Solutions that satisfy protected-area
objectives as well as meet the needs of local communities are less likely to be identified, and communities are less likely to perceive that
their needs are considered important. Additionally, the principles underlying the right to PIC, including equity, sustainability,
subsidiarity, and peace and security, would be difficult to secure if communities were engaged only at the end of the process.

Another way to view the right to PIC is as a mechanism for creating space for project proponents and affected communities to sit
together, air concerns, and work together to find solutions to problems.186 Recognition and implementation of PIC for indigenous
peoples served this function well in a case study of the Cordillera del Condor protected area in Ecuador.187

B. IMPLEMENTING PIC: CHALLENGES

The right to prior informed consent has been implemented successfully in specific situations and in various contexts.188 Nevertheless,
broad implementation of PIC remains elusive. One major challenge to implementation is the political unwillingness of states to enact
laws or policies that would support the rights of local communities to PIC. States, for example, may be unwilling to adopt laws and
policies that recognize and protect the property rights of indigenous peoples and other local communities, address politically divisive
issues, or prevent exploitation of natural resources. In the context of protected areas, some conservation organizations are similarly
unwilling to act. Critics express concerns that efforts would be too difficult, too costly, and pose obstacles to protecting biodiversity.189
Finally, some communities simply do not want to participate in the PIC process, viewing it simply as an attempt to legitimize activities
that may not actually be embraced by the community. As noted in sections II and III of this Article, states and conservation organizations
may have obligations and responsibilities to implement this right regardless of their reservations.

Other challenges relate to uncertainties associated with PIC implementation. In many cases states, NGOs, and local communities have
developed neither a thorough understanding of indigenous and local community rights, nor the capacity to implement PIC processes.
Identifying the appropriate authorities with whom the organizations should engage in PIC processes and how these processes should be
implemented can seem difficult. The lack of certainty in how to address these issues in turn raises concerns about costs and agreement
security.

Similarly, states, NGOs and local communities lack a thorough understanding of the issues related to the treatment of community-based
and other property rights and of their right to participate in processes impacting lands they use or occupy. As highlighted by a case study
in Ecuador, the failure to have property rights recognized by the state creates conflict that strains organizational capacity and limits the
ability of the community to fully engage in decisions about natural resources. Insecure land tenure associated with land occupied by the
indigenous Bomboiza community in Ecuador created conflict with the colonos (nonindigenous immigrants), and resources dedicated to
resolving this conflict limited resources available to the indigenous community to participate in PIC processes.190

Additionally, some communities struggle to address inter- and intracommunity issues related to participation in PIC processes. Intra-
community issues include those related to identifying authorities in the process of PIC. Inter-community issues include identifying how
communities will work together in the PIC process. Some of these internal organizational issues often arise as a result of development
pressures brought by external sources.

An additional uncertainty relates to the extent to which a state is willing to ensure that areas established as "protected areas" will not be
subject to significant development activities, like extractive industries. In Ecuador, the failure of state laws to harbor protected areas from
such exploitation was one reason indigenous communities in Ecuador did not provide consent for the Cordillera del Condor protected
area as proposed by the State and NGOs. The communities believed they could do a better job protecting the territory and its biodiversity
from exploitation.191

Uncertainties facing states also include questions of how to create institutional structures and processes and how to obtain information
necessary to secure the rights of communities. Lack of certainty may exist about how to satisfy local community rights to PIC and how
these rights relate to the rights of the state. Issues include those related to what PIC means: Do local communities have the absolute right
to say "no" in every situation? Can this right ever be qualified by a larger public interest, and, if so, under what circumstances and how
should this larger public interest be identified? Even when a state has a degree of understanding of these issues, it may be uncertain how
to obtain the requisite information and identify authorities that can provide consent.

C. IMPLEMENTING PIC: ENABLING CONDITIONS

Facilitating development of conditions that enable successful PIC processes will help states and conservation organizations fulfill their
legal obligations. As indicated in Figure 1, these conditions include those outside the context of a specific project, as well as those that
are project-specific. Generally, they relate to activities at three levels: (1) state, (2) community, and (3) project (see Figure 1). As
indicated in Figure 1, the first two levels relate to conditions that are not project-specific. The last level relates to project-specific
conditions.

1. Factors that Enable PIC: Conditions that are not Project Specific

Among the most important of the conditions that make PIC difficult in protected areas are those related to the following issues: (1)
community-based property rights; (2) planning for natural resources use and management; (3) community participation in resource-
related decision-making; and (4) community capacities.

A clear understanding and recognition of property rights, including communitybased property rights, is a key enabling condition which
provides greater certainty and incentives for project proponents and potentially affected local communities.192 Recognition means
clearly acknowledging and supporting the rights of communities to prior informed consent for use of land used or occupied by these
communities. Moreover, the process must involve meaningful engagement with communities, including, for example, support for
community mapping of ancestral territories. Indigenous communities in the Cordillera del Condor region of Ecuador believe that the lack
of recognition of their rights leaves them too vulnerable to say "yes" to the type of protected area originally envisioned by protected-area
proponents.193

The Cordillera del Condor example highlights the fact that recognition of community property rights provides clear benefits for various
constituencies working to protect biodiversity. It provides for both parties a clearer sense of who has the authority to engage in the PIC
processes, and it increases the security of communities in their ability to manage and use land they occupy and to protect their culture
and livelihood. This enhances security related to land tenure and, in turn, increases the motivation and ability of communities to engage
in long-term planning, including identification of community needs and actions to secure those needs. Additionally, it reduces the
likelihood of conflict over natural resources that often leads to environmental degradation. Related to this recognition of property rights
is the need to address the rights of women with respect to decisions made regarding the prospective protected area.

A second enabling condition relates to planning by the state and local communities. The development of plans to guide use and
management of natural resources, including those in specific geographic locales, could increase the likelihood that activities are
consistent with priorities of local communities as well as the state. Planning processes by the state must provide meaningful opportunities
for participation of potentially affected local communities. Information from, and engagement with, these communities are likely to be
critical not only to successfully achieving protected-area objectives, but also to ensuring that community needs are identified and
considered and that other interests, such as security, are protected.

Planning by communities in concert could enhance their ability to provide coordinated responses to efforts to establish protected areas on
their lands. It could also enhance community capacities to stave off unwanted activities; communities would have greater abilities to
foresee negative impacts and to coalesce support against it. As evidence of strong organizational strength, community plans for natural
resources could also enhance a sense of caution by project proponents.

To ensure that community customs and needs are respected and provide project proponents with much greater certainty about how to
proceed, communities could clearly identify approved criteria and procedures. These criteria and procedures could help silence concerns
that confusion relating to PIC processes justifies the failure to pursue PIC. Clear criteria and procedures would almost certainly compel
greater recognition in practice of community rights to PIC; faced with these clear criteria and procedures, project proponents would have
a more difficult time denying the rights of communities to PIC. Many communities have articulated these procedures for use in various
contexts. Some examples of these are highlighted in Appendix I. The Northern Barkley and clayoquot Sound communities in British
Columbia have, for example, articulated a "standard of conduct" for research in their territories that provides potential researchers with
information and forms needed to approach communities for their prior informed consent. The Confederated Tribe of Siletz Indians in the
United States has adopted a research ordinance that performs a similar function. The Confederated Tribes of the Warm Springs of
Oregon has adopted a Code to regulate access to archaeological objects.

State efforts to develop mechanisms and requirements via laws, regulations, and institutions to facilitate PIC should incorporate
concerns, criteria, and procedures identified by local communities. These mechanisms should facilitate an understanding of and capacity
to implement appropriate processes for attempting to obtain PIC. Requirements should include obtaining consent from communities
during the process of creating protected areas, including community involvement in options assessment and selection processes, as well
as a social and environmental impact assessment. The Philippines, for example, has established such mechanisms. Australia has as
well.194

The Bonn Guidelines for Access to Genetic Resources, adopted by Parties to the Convention on Biological Diversity (CBD), address
government uncertainties about how PIC can be obtained.195 The guidelines suggest that a national focal point be established to respond
to queries about how PIC can be acquired, and the guidelines embrace recognition of a single national authority from which PIC can be
obtained. Furthermore, they identify and describe possible elements of a PIC system.196

State laws, regulations, and institutions must also provide meaningful opportunities to local communities to participate in public interest
determination processes. The inability of local communities to participate in these processes impedes effective responses to local needs,
priorities, and decision-making, which, in turn, can impede efforts by project proponents to secure objectives of protected areas.

To engage usefully and effectively in PIC processes, states and NGOs need greater capacity to develop multidisciplinary understanding
beyond the existing technical training on these issues. Local communities must also have adequate technical and legal expertise and the
capacity to analyze impact assessments and legal documents as well as the power and ability to negotiate contracts with project
proponents. As noted by the World Bank, "[experience has shown that given clear rules of the game, access to information and
appropriate capacity and financial support, poor men and women can effectively organize in order to identify community priorities and
address local problems, by working in partnership with local governments and other supportive institutions."197

2. Enabling Factors that are Project-Specific

Project-level enabling factors relate largely to when and how communities should be involved in decision-making processes and how
they relate to other actors. Project cycles for the establishment of protected areas will, of course, vary. Generally, however, a project
cycle should include the following components: identification of prospective project sites; project preparation and appraisal; project
implementation; and project monitoring.198 Some of the conditions that enable successful implementation of PIC at each stage of the
project cycle are identified below.

a. Project Identification Stage

The project identification stage usually involves identification of various prospective sites and includes a summary of the proposed
project, which is used to identify subsequent project requirements. Requirements can include, for example, the need for and type of
environmental and social impact assessment. A process of screening, to determine whether indigenous peoples or other local
communities are present or have a collective attachment to the area, is also often done at this stage. For purposes of enabling PIC, it is
critical that local communities likely to be impacted by a project are identified at this stage. The processes are then established with the
input of local communities, which facilitates their participation. Examples of such private sector engagement with local communities
include Shaman Pharmaceuticals, Inc.'s interactions with communities in Africa and elsewhere.199

b. Project Preparation and Appraisal Stage

The project preparation and appraisal stage involves, at a minimum, the following tasks: defining project objectives; identifying key
issues; assessing baseline conditions; developing options; assessing environmental and social impacts and feasibility; and selecting
options. Enabling successful PIC would require engagement with potentially-affected local communities on each of these tasks. It has not
been standard practice to conduct social and environmental impact assessments for the establishment of protected areas.200 However,
when establishing conservation areas, information developed via such assessment processes is necessary to ensure the "informed"
consent of affected communities.201 Moreover, as noted supra, information provided by impact assessments can be critical for satisfying
requirements for public interest determinations-including requirements that processes are adequate, non-discriminatory, and
proportionate to the intended aim of establishing a protected area.
Guidelines for environmental, cultural, and social impact assessments, such as the Akw�: Kon Guidelines, recently adopted by Parties
to the Convention on Biological Diversity, highlight how these assessments should occur and to what extent to which local communities
should be involved in the process.202 The CBD's Akw�: Kon Guidelines outline "best practices" for conducting environmental,
cultural, and social impact assessments. The Akw�: Kon Guidelines recommend that assessments consider social, environmental, as
well as cultural impacts. They also recommend that the following be included in any social impact assessment:

(1) Baseline studies on pre-existing conditions such as: demographics; housing and settlement patterns, including resettlement effects;
communities' health status; levels, skills, and areas of employment; levels of infrastructure and services; levels and distribution of
income; asset distribution, including natural resource rights and land tenure arrangements; traditional systems of production; views of
communities regarding the future; and whether communities are subsistence-based and rely on non-monetary systems of exchange and
traditional responsibilities;

(2) Economic considerations, including creation and loss of opportunities as a result of proposed projects, non-hazardous job creation,
viable revenue, access to markets, and potential for diversification of income opportunities;

(3) Possible impacts on traditional systems of land tenure and uses of natural resources;

(4) Gender;

(5) Generational considerations, such as the effect of the project on each generation, and the present and future ability of potentially
affected communities to pass local knowledge on to succeeding generations;

(6) Health and safety aspects; and

(7) Project impacts on the social cohesion of local communities, such as the effects of advantaging or disadvantaging individuals or
groups within specific communities.203

When conducting an environmental impact assessment, the Akw�: Kon Guidelines recommend that those proposing an activity conduct
baseline studies to ascertain which aspects of biodiversity are particularly important to potentially affected indigenous or local
communities. For instance, the assessments should identify habitats the communities rely on, such as hunting and fishing grounds,
gathering areas and agricultural areas, sacred groves, and burial grounds.204

The Akw�: Kon Guidelines also recommend that the parties conduct cultural impact assessments that address the following:

(1) Possible impacts of projects on affected communities' ability to sustain customary use of biological resources;

(2) Possible impacts on the respect, preservation, protection, and maintenance of traditional knowledge, innovations and practices;

(3) Protocols for respecting and supporting local cultures that should be followed when visiting communities;

(4) Possible impacts on sacred sites and ritual or ceremonial activities;

(5) Respect for cultural privacy, for example, rites of passage and death; and

(6) Possible impacts on the exercise of customary laws, for example, effects on land tenure systems, including distribution of resources
and benefits, and of introducing outside labor.205

The Akw�: Kon Guidelines recognize that the effectiveness and accuracy of impact assessments and other processes for gathering
information depend not only on what is assessed, but on how the assessments and information gathering processes are designed and
implemented. The following practices, based on the Guidelines and considered by many to be the "best practices" to date, promote
effective and accurate gathering, distribution, and use of information in the context of protected areas:

Taking into account the remoteness and geographic isolation of many prospective protected areas, states should notify potentially
affected communities through various means, including publicizing through print and media, and clearly identifying the project
proponent. Following notification there should be public consultations:

(1) States should identify communities and stakeholders likely to be affected by the protected area, and seek to formally establish
representatives for these communities and stakeholders;
(2) States should establish mechanisms for indigenous and local community participation, such as providing advice on screening and
scoping aspects of assessment processes, permitting informed, full and effective participation in decision-making, and engaging local
experts;

(3) States should identify and provide for sufficient human, financial, technical, and legal resources for effective community participation
in all phases of impact assessment processes. Oftentimes, this includes assistance to build and strengthen local capacities for ensuring
broad-based community involvement;

(4) States should establish review and appeals processes, which may involve alternative dispute resolution or customary methods;

(5) Parties should develop and agree to processes for recording the aspirations, opinions and concerns of affected communities. If local
consent is first obtained, this may include written statements and the use of video or audiotapes;

(6) Parties should establish an environmental management and monitoring plan, including contingency plans regarding adverse cultural,
environmental, and social impacts resulting from the proposed development;

(7) Parties should identify individual and corporate actors who are responsible for liability, redress, insurance, and compensation;

(8) Parties should reach mutual agreement on conditions for establishing any proposed protected area and specify the rights, duties,
responsibilities of each, and mitigation measures to used in the event of disputes, and procedural aspects of assessment; and

(9) States should establish a review and appeals process, which may involve alternative dispute resolution or customary methods.206

As noted elsewhere, resettlement of indigenous peoples may have significant adverse impacts on their identities and cultural survival. It
is, therefore, imperative that all viable alternative project designs be explored to avoid physical displacement.207 Local communities
should be involved in the options selection process. Project proponents must also work with potentially affected communities to define
their role in project implementation and monitoring.

Local support for the conservation projects, manifested by the open consent of potentially affected locally communities, should be
ascertained at this stage.208 Absent local community support, conservation projects should not move forward unless the responsible
government has acted in a manner consistent with international norms to expropriate or otherwise secure land for use in the "public
interest." If the natural resources needed for establishing a successful conservation area are expropriated in a manner consistent with
international norms and national legislation, and local communities face involuntary restrictions, the responsibilities of project
proponents continue. They must keep working with affected communities to identify plans that inform them of and addresses their rights,
including processes for securing adequate compensation.

c. Project Implementation Stage

Project implementation should conform to prior agreements with local communities and should involve communities to the extent the
option chosen reflects such involvement.

d. Project Monitoring Stage

Project monitoring means, among other things, reviewing, and if necessary ensuring, that the rights and interests of communities (as
reflected in written agreements) are respected and supported. Opportunities for involvement of local communities in monitoring
activities should be provided.

e. Best Practices

At each stage of the project cycle, processes for engaging local communities will have culturally-specific variations. A number of
common "best practices" can be identified from prior experiences of people working on issues related to genetic resources, traditional
knowledge, and extractive industries.209 Some lessons learned include:

1. A person seeking access must obtain consent from every affected community in the traditionally recognized manner, according to the
customary laws and practices of the concerned community.
2. Before seeking consent, a person seeking access for a proposed conservation project should distribute all information relevant to the
community and participate in community discussions. Information should be provided to local communities in culturally appropriate
ways, by both written and oral presentations and in local languages understood by potentially affected communities.

3. Depending on the stage in the project cycle, relevant information could include:

a. disclosure of proposed objectives-what project proponents hope to obtain; available quantities of the resources sought; and expected
duration of envisioned activities;

b. disclosure of legal and financial information, including any affiliations, where money will be coming from, who is in charge, and
what/ or how benefits will be shared with the local community;

c. disclosure of any impact statements (environmental and other) concerning the local activity; the foreseeable impacts of envisioned
activities in the project area, including social, economic, environmental effects on local communities; potential for commercial
applications of local resources; and location of the specific geographical area;

d. disclosure of previous or related activities undertaken by the person seeking access (and by affiliated organizations), including a
description of any previous consent, how the objective was met, any effects on the community.

4. The community should be notified of proposed activities. Any information should be presented in a traditionally recognized, culturally
appropriate way. Discussions should be inclusive so that all affected people have opportunities to participate actively.

5. Consent should be part of ongoing processes conducted throughout the planning, design, implementation and evaluation of projects.
These processes must include substantive dialogues through which communities may choose to give or not to give consent.

6. The processes and desired outcomes of PIC have by no means been perfected. There is a need for states, NGOs, local communities
and all parties involved to improve understanding of indigenous rights and create greater capacity to engage communities. This might
involve, among other efforts, increased cross-learning, further experiences with tools such as collaborative resource mapping, and
development of further resource manuals.

VI. CONCLUSION

Efforts by states and non-state actors to establish protected areas often fail to consider the rights of indigenous peoples and other local
communities potentially impacted by these efforts, and, in particular, their right to prior informed consent. A state's sovereign right to
manage natural resources is not absolute-it must be responsive to the rights of those potentially impacted by its activities. Moreover, non-
state actors must also help ensure that human rights are secured. Respect for the rights of communities can increase the likelihood that
activities to achieve conservation objectives are successful. As noted by one authority:

The challenge of the next two or three decades will be how to balance permanent sovereignty over natural resources with other basic
principles and emerging norms of international law-including the duty to observe international agreements.. .pursue sustainable
development at national and international levels and to respect human and peoples' rights-and in this way to serve best the interest of
present and future generations.210

Recognition and effective implementation of prior informed consent for indigenous peoples and other local communities with significant
ties to natural resources provides a way forward to this balance. Success in the establishment of protected areas for conservation is more
likely if current opportunities to advance PIC are seized.

ANNE PERRAULT,* KIRK HERBERTSON,[dagger] AND OWEN J. LYNCH[double dagger]

* Anne Perrault is a Senior Attorney at the Center for International Environmental Law.

[dagger] Kirk Herbertson is a Law Fellow at the Institute for Governance & Sustainable Development, which serves as the Secretariat for
the International Network for Environmental Compliance & Enforcement (INECE), in Washington, D.C.

[double dagger] Owen Lynch is the former director of the Law and Communities Program at the Center for International Environmental
Law.
The authors wish to express their deep appreciation to Nelson Manga for his research for this article.

Copyright Georgetown University Law Center Spring 2007

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