Application of Free, Prior, and Informed Consent Principle in Defending Indigenous People’s Rights: Case Study of Merauke Integrated Food Estate

Abstract

Albeit the fact that the principle of Free, Prior, and Informed Consent (FPIC) is classified as soft law, the imperative to respect, protect, and fulfil the rights to be informed and involved in development projects is strongly endorsed by international legal instruments, notably the United Nations Declaration on the Rights of Indigenous Peoples (2007). These instruments stand among the most comprehensive and advanced in addressing the rights of indigenous peoples, particularly with regard to FPIC, while simultaneously contributing to the broader corpus of international human rights law, which seeks to secure the environmental and other substantive rights of indigenous communities, especially in the context of land appropriation. Such rights include, for example, the right to be informed and to participate in decision-making processes concerning development initiatives, including national priority programmes such as food estates. This implies a binding obligation on states party to these international frameworks to ensure that indigenous peoples are not only adequately informed but also actively engaged in both the negotiation and implementation of land acquisition agreements. Nonetheless, given that these transactions frequently transpire under opaque and non-transparent conditions inimical to the rights and interests of indigenous peoples, it prompts the question as to why the principle of FPIC is so often disregarded in land acquisition processes. Focusing on the Merauke food estate in Indonesia, this article interrogates instances of land appropriation associated with national food estate projects, with particular emphasis on the application of FPIC. Grounded in international law, the article contends that the applicationof FPIC serves not only to safeguard the rights and interests of indigenous peoples, but also to fortify and improve the prevailing land governance regime. In conclusion, the article argues that, given FPIC’s embodiment of procedural rights such as the right to information andparticipation— rights that are conspicuously absent in many land acquisition agreements—its application could provide a vital foundation for the recognition, promotion, and enforcement of local communities' rights in Merauke, Indonesia.