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Free, Prior and Informed Consent and Disparity Mining

Disparity mining is when non-indigenous people and organizations conduct fundraising for projects to help Indigenous Peoples without consultation.
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One of the most important principles found in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is the principle of free, prior and informed consent (FPIC). This has become a contentious issue in many countries because of the word “consent.” Some settler governments have taken the position that FPIC amounts to giving indigenous nations and peoples a veto.

Personally, I agree that it does and that it’s a vitally important requirement to regulate relations between indigenous nations/peoples and the settler governments they have to contend with. The presence of the word “consent” sets a relatively high bar in terms of mandating negotiations and agreement that obtain an indigenous nation’s or people’s consent for something to proceed.

It has been my experience that we are already at a disadvantage when a settler governmental entity or a corporation shows up at our doorstep with something already planned out to almost the last detail. The ensuing discussion are funneled into a framework focused on this plan that we’ve had nothing to do with and the inevitable position of them telling us how this is good for us. And then when that doesn’t work trying their best to put us on a guilt trip that our lack of participation and agreement is going to cause harm to a lot of other people if this thing isn’t allowed to happen. And when that doesn’t work the gloves come off and we’re told flat out this is going to happen and you had your chance to be a part of it.

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I expected governmental and corporate resistance to FPIC but I was caught off guard when some indigenous folks came out against it. This small but noisy resistance took the form of putting forth an argument that somehow FPIC would be used to get around or undermine our rights. The argument put forth the idea that somehow our exercise of this option would lead to our giving up or compromising legal and human rights. As the argument has been positioned FPIC is somehow separate or divorced from our fundamental right of self-determination.

To me, self-determination begins with the ability to say yes or no. And if we say yes, we also have the right to set terms and conditions on that yes. It’s possible our internal opposition may believe that if we say yes we may end up losing or compromising other rights during the process of negotiating the terms and conditions.

I believe that many of our leaders and people are sufficiently educated and experienced enough to avoid disastrous trade-offs in the pursuit of empowering our right of self-determination.

All of this is the big picture and will continue to play out for decades. But FPIC has local applications through which we can realize immediate empowerment of our right of self-determination.

A while back a friend of mine coined the phrase “disparity mining” to describe the on-going phenomenon of non-indigenous people and organizations continuing to go out and conduct fundraising for projects and ideas they’ve dreamed up for Indigenous Peoples, communities and nations without ever talking to us about their plans. Fundamentally this is no different than the governments and corporations doing the same thing but this is at the up close and local level.

It’s been going on for decades but I want to give my friend a shout out for naming it. By naming it we can define it, give it a framework of understanding and postulate our own solutions to this issue.

There are big corporate non-profit entities who have refined this form of rip off to a science and raise millions of dollars every year, especially around Christmas time purporting to take your money and do all this good for impoverished, helpless Indians. They always manage to put out a bunch of pictures of big eyed, somewhat sad looking indigenous children to tug at your heart strings and get you to cough up a few bucks.

What has been sort of invisible is how this occurs even closer to home. As we’ve gotten more adept at developing our own non-profits and gaining access to funding networks we’ve begun to see how some local entities have been doing for awhile as well.

What’s interesting about this phenomenon is not only the blatant ripping off of donations in the name of helping us but also how the conditions and issues we struggle with get totally misinterpreted and distorted.

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Our most recent experience with this was during our participation in the development of a solar garden purportedly being commissioned to assist low income indigenous families within the territory.

The effort started in the classic way. Some supposedly good intentioned folks decided that they would go out and get a $500,000 grant to bring solar power to the rez and low income families. They wrote the grants, lobbied state government agencies and foundations and put the money together. Then they came to the territory and told us about the wonderful thing they had done for us and would we now like to be a part of actualizing the effort? So we said “sure,” mainly to make sure they didn’t run any further amok with this thing.

This is when we identified the fatal flaw in their thinking. The theory of the application was to build out a 200 KwH solar garden and have upwards of 26 low income families become “subscribers.” The criteria is based on getting families who are eligible for the Low Income Home Energy Assistance Program (LIHEAP) to be the subscribers. By doing so, the theory goes, there would be savings in the program that could be reallocated to include more families.

As we looked closer at this theory we realized some things that gave us pause. First, we were informed by the Tribal LIHEAP office that 100 percent of eligible families get assistance. The grant organizers told us that wasn’t correct that as many as 50 or 60 families didn’t get assistance because there wasn’t enough money in the budget. The LIHEAP Manager told us that these 50 or 60 families were either not eligible or had not completed their application for whatever reasons.

The second issue arises as to what happens if you start saving the program money? Any savings generated by the solar garden does not directly benefit the families. The LIHEAP pays the energy costs of eligible families directly to the energy provider. The families never touch that money.

The organizer’s argument was that somehow there was going to be money left in the participating families’ pockets and this turned out to not be true at all.

The third problem comes about when the local LIHEAP office realizes a surplus – which is what these solar-based savings will do. That surplus is scooped up by the state office and redistributed to other LIHEAP local offices that may be having a shortage.

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So who are the real beneficiaries? First, the Department of Commerce who oversees the LIHEAP in Minnesota. They get to scoop up any surplus for their own use. This approach has helped extend their budgets. Secondly, the energy companies. They get the benefit of hundreds of thousands of dollars in solar infrastructure they don’t have to pay for and can count as part of their mandatory “green portfolio” because they hooked it up to their grids.

We did indentify who really needs the help. It is those families who have an income just large enough to make them ineligible for LIHEAP. These are the so-called “working poor,” these are the folks who are paying their energy bills out of their pockets.

The first project gave us some great “lessons learned” that’s resulted in our taking control of the concept and re-engineering it to truly benefit those families who need it. But we’re not sure if the do gooders learned anything because they argued with us throughout the process and we’ve seen recent proposals submitted by them that perpetuate the original myths.

The bottom line to all of this is the principle of FPIC. Don’t do a damn thing that’s going to impact us in any way without our free, prior, and informed consent. If you can’t do that, then don’t do anything.

Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network’s mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.