Engagement and Free, Prior & Informed Consent (FPIC)
Human Rights Implicated: Right to consultation and cooperation, including through
free prior informed consent (FPIC) for certain actions
Assessment
n Under the Foreign Investment Rules 11/2013, the Myanmar Investment Commission
must seek permission from the relevant region or state government as to whether
mesures proposed to avoid or mitigate an impact on the environment or society in
connection with an investment are sufficient. While these consultation procedures
with relevant region or state governments provide the opportunity for review by
these bodies that may have strong representation from the majority and minority
ethnic groups in the region, this is not equivalent to or a substitute for long-term
engagement by O&G companies with local communities, including local
indigenous communities. Furthermore, it may lead to conflict, for example where a
company seeks to obtain regional government support, for example, through
financial support to regional economic development initiatives against the wishes of
the local community.
n The Government has recognised the relevance of FPIC in the context of REDD+
and more specifically, FPIC’s importance in the context of extractive operations.n The SWIA field assessments indicated that, with limited exceptions, there has been
virtually no meaningful consultation with local communities around land use or
relocation for recent O&G developments, much less any kind of wider discussion
that could be characterised as FPIC or even “broad community support.” This partly
reflects the absence of legal requirements to conduct impact assessments prior to
the adoption of the 2012 Environmental Conservation Law.
n The ADB, the World Bank (see above) and the IFC have all indicated that they will
apply their safeguard policies on indigenous peoples to projects they finance in
Myanmar, including their provisions on FPIC.
n The forthcoming EIA Procedures are expected to require consultations with,
and disclosure to, local communities. According to the December 2013 draft,
O&G exploration and production requires an EIA. The model Production Sharing
Contract (PSC) also provides for EIAs and a social impact assessment (SIA) as an
obligation and required step under the PSC (clause 17.2 bb). However the draft EIA
Procedures do not currently require more detailed consultation or even consent
when indigenous peoples/ethnic minorities are involved but would require the
application of international best practice in the absence of more detailed
national procedures, leaving the door open to the application of standards
requiring more in-depth engagement and FPIC in designated circumstances.