This module offers a framework TNC staff and IPLCsIndigenous Peoples and Local Communities can use in two scenarios:
This module is not just about risk management or preparing for worst-case scenarios. It reflects TNC’s support for international law and standards on Indigenous rights, where the right to grievance procedures and remedy is well-established.
Trusted conflict resolution procedures are necessary because they can throw light on issues or problems that might otherwise undermine an initiative’s success. If concerns linger, trust and support could waver. Plus, conflict resolution, just like Free, Prior & Informed Consent, is a relationship-building tool as much as it is a risk-management tool.
Some degree of conflict between collaborators on initiatives is unavoidable. But when conflicts are addressed openly, quickly and respectfully, they are opportunities for collaborators to learn about each other, build trust and recommit to a shared future. Conflicts are also an opportunity for TNC to demonstrate its commitment to our Values, Code of Conduct and the Principles and Safeguards set forth in this guide.
Early on, well before a conflict arises, TNC staff and IPLCs should discuss how disputes will be handled and document their shared understanding in a Conflict Resolution Plan. Different situations will have different conflict resolution needs; the menu-based approach recommended in this Guide includes three mechanisms:
Dialogue:
Respectful, mutual listening, quick on the heels of arising conflict, inclusive of all views;
Mediation:
A structured dialogue process, relying on trusted individuals or institutions; and
TNC’s Ethics & Compliance Process:
A grievance procedure administered by TNC’s Ethics & Compliance Office for alleged violations of our Code of Conduct or Principles and Safeguards.
In most cases, conflicts can be resolved through Dialogue or Mediation. The Ethics & Compliance Process is available to IPLCs for two reasons: (1) to affirm that TNC staff are held accountable for their actions; (2) to provide a different, perhaps deeper way to talk with TNC and get resources to investigate and resolve conflicts outside of the immediate project team.
In some cases, the three mechanisms will follow a logical progression and will be pursued in succession. You might move from Dialogue to Mediation to solve a conflict. But sequential exhaustion isn’t necessary; the IPLC can go straight to TNC’s Ethics & Compliance Process if circumstances warrant it. The three mechanisms are a menu of options that are available at any time.
Dialogue and Mediation mechanisms should be adapted to the standards and expectations of the IPLC, should include their methodologies and practices, and should be consistent with the Principles and Safeguards of the Guide. The Conflict Resolution Plan should be continuously revisited to keep it up-to-date with expectations, factual circumstances and learned experience.
Guidance is offered below for implementing the conflict resolution process in accordance with the Principles and Safeguards. TNC staff can also review the dilemmas presented in the Wenland hypothetical case study in this module.
The Introduction includes a discussion of all the Principles and Safeguards that apply to equitable partnership. Four are particularly important for conflict resolution:
Overarching Good Faith:
Assuming good intentions is perhaps the most important principle in resolving conflicts with IPLCs. Being honest, respectful and humble and demonstrating Integrity Beyond Reproach is critical.
Self-Determination:
A collaborative conflict resolution process builds trust, enhances dialogue and embodies TNC’s commitment to supporting Indigenous Self-Determination and leadership on conservation outcomes.
Accountability:
Conflict resolution mechanisms are accountability mechanisms. Accountability isn’t something to avoid or fear; it should be embraced as a chance to learn and improve. TNC won’t get everything right on the first try. A commitment to accountability and responsibility can turn mistakes and misunderstandings into a platform for more solid partnerships.
Equity & Inclusion:
Conflict resolution procedures all over the world are marred by exclusionary and discriminatory practices. TNC’s conflict resolution practice must demonstrate a thorough understanding of the impacts and legacies of the past. Only by acknowledging these injustices can we provide better access and resolve disputes in a more equitable and inclusive way.
A good conflict resolution process keeps dialogue going, ensures transparency, and promotes equitable relationships between partners. The process need not be prescriptive or an administrative burden. Conflict resolution procedures demonstrate that TNC’s work aligns with our Values, Code of Conduct and international law and standards. A mutually agreeable conflict resolution process is one of the most important ways TNC can respect and support the human rights of Indigenous Peoples and local communities.
Having a reliable mechanism to resolve conflicts isn’t just a risk-management tool or a Plan B if things go wrong. It is a human right.
IPLCs have faced generations of abuse, systemic oppression, and denial of rights. The harm is often compounded by institutional failure to act justly, be accountable, or listen to community concerns. Modern law elevates the right to grievance mechanisms, remedies and accountability measures to the status of a substantive right under international law.
Indigenous Peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the Indigenous Peoples concerned and international human rights.
The right to procedural justice is also found in TNC’s Conservation by Design 2.0 Guidance Document. The commitment to conflict resolution emerges from the first of four key advances in CbD 2.0—People in Conservation—which states, “In all our work, we must ensure that vulnerable, disadvantaged, and marginalized people and communities (e.g., low-income communities, Indigenous Peoples, communities dependent on the local environment, racial and ethnic minority groups, women, children, the elderly) are not harmed and we incorporate social safeguards into project planning and implementation.”
Two social safeguard questions are especially relevant:
CbD 2.0 also recommends that teams working with Indigenous Peoples provide access to redress through grievance mechanisms that are accessible, predictable, transparent, effective, rights-based, respectful, appropriate, and responsive.[2]
Similar commitments to accountability through grievance and conflict resolution are found in leading international frameworks and institutions, such as the International Finance Corporation, the World Bank, the United Nations Environment Programme, the Food and Agriculture Organization of the United Nations, the United Nations Development Programme, the United Nations Guiding Principles on Business and Human Rights, and peer conservation organizations.[3]
Conflict resolution procedures shouldn’t be a management burden. Done right, such procedures may allow TNC and the IPLC to focus more time and energy on the initiative itself. In the best-case scenario, everyone emerges from a dispute with a stronger sense of trust and commitment and feels that obstacles have been addressed quickly and overcome fairly.
Of course, not all conflicts will meet these ideals. But a well-framed Conflict Resolution Plan is flexible enough to address many different circumstances. The menu approach described below recommends intuitive, collaborative methods (dialogue), as well as more structured mechanisms (mediation). In situations where there’s less trust at the start, the existence of procedural guarantees might help (TNC’s Ethics and Compliance Process).
A Conflict Resolution Plan is an important part of how TNC respects IPLC rights, demonstrates accountability, and builds and sustains equitable relationships. The Conflict Resolution Plan is foundational to every initiative and should be included in the initial conversations recommended in the Learning & Early Discussions Module. Deliberation and agreement on a plan should be part of any process described in the FPIC Module.
TNC staff working on existing initiatives should assess past experience with conflict resolution. Then they should look for opportunities to raise the issue mid-stream during a project. TNC staff should take care to explain that this doesn’t mean they’re anticipating conflicts. Rather, it’s being brought up as part of an evolving understanding of best practice.
To craft a plan, TNC staff can draw on their own experience, the experience of other TNC teams, and the guidance and resources in this module. Staff should also revisit the Human Rights Impact Assessment and FPIC process. The Conflict Resolution Plan should provide a clear path to addressing any concerns identified in these assessments and processes. IPLCs might have existing procedures and preferences that should be explored together and incorporated.
A discussion about conflict will help TNC and the IPLC learn about one another’s values, expectations, and past experiences with disputes, which come up in any collaborative endeavor. But the deliberation process and the preparation of a plan need not be burdensome. If TNC and the IPLC are in agreement, a plan might simply describe the menu of options below and how they’re accessed. It might include specifics, such as the names of trusted mediators agreed upon in advance.
TNC prefers to resolve conflicts without taking legal action. Still, there may be circumstances that result in litigation. If a lawsuit seems possible, consult the Use of Outside Counsel and Litigation SOP and contact TNC’s legal team.
The best way to prevent misunderstandings from escalating to complaints is to enter into each relationship from a place of humble learning, respect and honesty. Keeping communication lines open enables TNC to see issues bubbling up and address them head-on. When trust and understanding are cultivated at the beginning of an initiative, problems are more likely to be resolved through discussion at the team level.
To learn and practice dialogue skills, see the Diversity Learning page on CONNECT and the Intentional Listening Resources and Indigenous Dialogue and Storytelling resources listed in the Tips & Tools section of this module. The Learning & Early Discussions Module also discusses relationship-building in detail.
Open dialogue should be part of any IPLC collaboration. But disputes can emerge from difficult circumstances or conflicting interests—and even parties accustomed to open communication may go to great lengths to avoid discussing these hard topics. The dialogue promoted in this guide is an intentional round of dialogue designed to address a specific conflict.
This means the logistics of the dialogue must be considered ahead of time:
Attention to these parameters is important, but it doesn’t need to signal formality. A dialogue characterized by informality and friendly relationships between working partners is a good recipe for success. Additionally, the principles of Overarching Good Faith and Collaborative Relationships require TNC to enter into dialogue prepared to listen and to take action on concerns. Otherwise, dialogue could end up generating cynicism or be dismissed as yet more talk.
Mediation is a conflict resolution mechanism that increases the structure and formality of Dialogue. Ideally, its incorporation is grounded in a deep understanding and respect for existing cultural values and norms for resolving conflicts.
Mediation should rely on IPLC institutions and forums, and traditional ceremonies or practices designed by the IPLC, taking into account government or donor requirements (see Key Issue: Is there a grievance mechanism mandated by a host country government or donor?).
In some contexts, an external mediation process may be regarded as disempowering, in which case it should not be included in the Conflict Resolution Plan. But in others, having a trusted, third-party mediator available may be acceptable or even preferable. Mediation might create a deeper engagement, mutual understanding and compromise between parties, or it could help parties overcome initial mistrust. A mediation process should result in an outcome, such as a commitment to the mediator’s recommendations.
Mediation is not arbitration, and the mediation contemplated by this guidance wouldn’t be considered legally or even procedurally binding. Nonetheless, a mediator may make recommendations parties might not want to hear, but might be willing to hear, based on a prior commitment to the mediation process.
If using an outside mediator is acceptable, TNC and the IPLC should identify the person in advance. It might be an objective academic or professional individual or institution. When an outside mediator is chosen, their name and contact information should be included in the Conflict Resolution Plan.
As discussed in the Introduction to this module, in most cases, conflicts can be resolved favorably through Dialogue or Mediation. TNC’s Ethics & Compliance Process ensures that TNC takes responsibility for its actions, and provides another way for an IPLC to raise a concern and access resources to investigate and resolve conflicts. (See Appendix V for more detail on the process.)
The Ethics & Compliance Process is a good mechanism for listening, answering questions or referring concerns back to TNC’s program staff for clarification. When a complaint is received, the Ethics & Compliance Office may consult with program staff to get information or clear up a misunderstanding. Often a mutually acceptable remedy can be found, and the complaint can be resolved.
TNC employees or third parties can contact the Ethics & Compliance team anytime to submit a question or concern at the online Helpline, www.nature.org/tnchelpline. The TNC Helpline is available online and by phone, text or mail 24 hours a day, seven days a week in multiple languages. Complaints can be submitted anonymously and will be treated confidentially to the extent possible, disclosed only to those with a need to know. When someone calls the Helpline, they will speak with a third-party agent who will document the complaint and forward it to TNC’s Ethics & Compliance Team. When someone submits a complaint online, it goes directly to TNC’s Ethics & Compliance Team (see Code of Conduct).
TNC’s Ethics & Compliance process should be explained and information on how to access it should be translated into the IPLC’s preferred language and distributed throughout the project area. If the IPLC does not speak one of the languages available through the Helpline, TNC may need to hire a translator to help file a complaint. Written complaints may be submitted in any language.
TNC’s Ethics & Compliance Process should be presented as an option in the Conflict Resolution Plan at the beginning of a new initiative or as soon as possible in an ongoing partnership.
Since conflict resolution by definition occurs in the context of discord, it might be accompanied by aggravation, frustration and sometimes aggressive and antisocial behavior. Retaliation against individuals who raise a complaint is a problem faced by institutions of all kinds at all levels. Fear of retaliation is a major deterrent to reporting problems, especially for groups who may have more to lose. As stated in our Code of Conduct, TNC will not tolerate retaliation against individuals who ask questions or raise concerns about potential misconduct in good faith.
Anti-retaliation tools should be included in the Conflict Resolution Plan and may include:
TNC staff need to know whether there is a grievance mechanism required by either a host country government or a funder supporting the initiative. For example, IUCN and the Global Environment Facility of the World Bank require grantees to comply with each entity’s grievance mechanism.
If a grievance mechanism is mandated, TNC staff should determine what types of disputes it applies to and whether the IPLC has consented to its use or is willing to. TNC’s Code of Conduct requires compliance with local laws, which includes those requiring use of a grievance mechanism. Failure to comply with a mechanism imposed by one of TNC’s donors would constitute a breach by TNC of any funding agreement with the donor.
So TNC’s starting point should be to seek out and comply with these mechanisms. The IPLC would likely be bound, as a citizen of that country, by a grievance mechanism required by a host country, but they would not be bound by a grantor’s mechanism if they were not a party to the funding agreement.
If the IPLC agrees to use the required grievance mechanism, and it applies to disputes not resolved by other local agreements, the required grievance mechanism should be followed.
If the IPLC doesn’t agree to use the required grievance mechanism, the initiative may need to be suspended while TNC gathers information about the reasons and circumstances for the IPLC’s opposition. If TNC and the IPLC can’t agree to comply with a mandated grievance process, the initiative might need to be terminated.
In some cases, TNC and the IPLC might be able to ask for a variance or accommodation from the government or donor. If an alternative grievance mechanism that addresses government or donor concerns is proactively proposed, it might secure government or donor buy-in, especially if it’s culturally responsive, efficient, reduces administrative costs and results in positive outcomes.
As we’ve discussed, TNC and the IPLC should understand and agree to conflict resolution procedures in advance. Addressing IPLC concerns early on will add legitimacy and usefulness to the procedures. Along with basic failure to consult, a hallmark of poor conflict resolution practice is an insistence by outsiders on using their own procedures, which may be unfamiliar to the IPLC. Then the outsiders are surprised if the IPLC either doesn’t follow the procedure when conflicts arise or doesn’t accept the legitimacy of the results. This leads to estranged relationships on top of the existing conflict, rather than the stronger relationships that come from a well-considered conflict resolution process.
The menu approach addresses this to some extent, by allowing an IPLC to set aside any procedures it doesn’t like or understand. Additionally, the first two mechanisms recommended in this guidance—Dialogue and Mediation—are more concepts than formal procedures, which means they could be adapted into frameworks the IPLC prefers.
IPLCs have their own ways of conducting intentional dialogue and, in many cases, engaging a structured process and a third-party facilitator akin to mediation. It’s valuable for TNC staff to learn about how an IPLC understands and engages these modalities, to the extent the IPLC is willing to share. Integrating TNC’s and the IPLC’s approaches can be a useful exercise in collaboration and trust-building.
More importantly, having a conflict resolution method that contains elements of an existing IPLC practice means they are much more likely to seek these solutions when conflicts arise, and it’s more likely that any resolutions will have broad legitimacy within the IPLC.
Conflict resolution methods can be adapted in a number of ways:
For Dialogue, when a member of an IPLC wants to approach another member with a grievance, are there rules or customs in place that ensure mutual respect and enhance dialogue? Examples could range from the structural, like the use of nominees in the place of the aggrieved parties, to the ceremonial, such as the practice of sharing meals before or after a dialogue.
For Mediation, disputes and grievances might be addressed in non-adjudicative but intentional forums before IPLC governing bodies, elder councils or similar entities. Someone within the IPLC might often serve in the role of mediator for intra-community disputes; they may therefore understand the value of a neutral perspective, as opposed to the role of an advocate on behalf of the IPLC, which is an important but separate role.
A plan that provides for mediation facilitated by such an individual stands a much better chance of being relied on and respected, since the person brings credibility. There also might be a trusted outsider who has helped resolve disputes with outsiders in the past. Or perhaps there is a panel of trusted individuals from which the parties could select a mediator.
Any adjudicative dispute resolution methods used by the IPLC should get a close look. In many cases, using such procedures will carry an expectation that TNC or other parties will be bound by the decision of the IPLC institution and not consider it merely advisory. TNC should agree to submit to these procedures only when confident in our ability to comply with a binding decision. It’s better to respectfully decline to submit to these decision-making procedures than to submit to the procedures, but then not be able to comply with the result.
IPLCs are typically understanding of an outsider’s inability to fully submit to IPLC decision-making procedures. In some cases they may not even allow outsiders to use the procedures. But an agreement to use IPLC procedures is the highest expression of respect for Self-Determination and Overarching Good Faith. Even if this agreement needs to be restricted to certain types of disputes or circumstances, for example, following the exhaustion of other options, an agreement to submit to IPLC procedures is a valuable addition to a Conflict Resolution Plan.
The Conflict Resolution Plan should be well scrutinized for barriers to access for members of the IPLC, and adaptations and modifications should be made to address those barriers as much as possible. For example, women may be excluded from an IPLC’s internal conflict resolution procedures. Even if the Conflict Resolution Plan includes women’s participation, psychological or social barriers might preclude individual women from participating.
How can this be addressed yet remain consistent with the IPLC’s exercise of Self-Determination?
Possibilities include the promoting of women’s participation, the convening of separate forums or procedures to solicit views, or providing remedies to women community members. It is important to understand how and if the excluded groups want to participate in the conflict resolution process, as TNC staff risk imposing external perceptions, expectations or values if we don’t see the full context.
Equity:
All parties should know how a concern can be raised and how each type of dispute will be managed. The process must provide access to information, advice and expertise needed to resolve conflicts on fair, informed and respectful terms. In some cases, TNC may need to provide additional resources, such as information, advice, or translation services.
Transparency:
Everyone is kept informed about progress and outcomes; decision-making, implementation and monitoring are transparent.
Mitigation and Remedy:
Adverse impacts should be addressed early on, preventing compounding the harm and the escalation of grievances.
Rigorous Follow-Through:
Although conflict resolution mechanisms should be efficient and timely, it may take patience, time and energy to see them through. Sometimes conflict resolution occurs in the midst of fast-moving developments on the ground, and the process starts to feel stuck in the past. Other times, conflict resolution struggles to compete with other priorities, especially as the initial sense of urgency wears off. Follow-through should continue in good faith until the conflict is truly resolved.
When conflict arises, TNC staff must use the conflict resolution mechanisms set out ahead of time, in a manner consistent with the Principles and Safeguards—especially Overarching Good Faith, Self-Determination, Accountability, and Equity & Inclusion. Successful resolution doesn’t depend on any single act, but hundreds of acts over the course of a conflict.
Implementation will depend on the circumstances, so specific guidance is hard to give in the abstract. Where there’s uncertainty, staff should consult Legal Counsel, the Global Indigenous Peoples and Local Communities Team and the Global Diversity, Equity & Inclusion Team.
Staff must stay on top of conflict resolution processes until all parties are satisfied that disputes are resolved. This is important for two reasons:
Procedures must not be allowed to taper off without real resolution. This could give the impression that the conflict resolution process is a bandage to cover up the problem, rather than a robust information-gathering, problem-solving and relationship-building tool.
TNC and the IPLC should keep the following concepts in mind when implementing the Conflict Resolution Plan:
No Conflict Resolution Plan will be perfect from the beginning. It’s likely that significant problems and obstacles will come up once the procedures in the plan are tested in practice. In most cases, this merely reflects reality rather than poor planning, but the response should be, in either case, a thoughtful and non-defensive process of learning and modifying the plan to meet newly understood challenges.
This process requires:
b) accepting them as problems and not trying to cover them up or justify them;
d) developing responses, mitigation strategies and a process for adapting the plan in collaboration with partners.
Continuous efforts should be made to raise awareness about the existence, nature and accessibility of the procedures in the Conflict Resolution Plan. Conflict resolution tools are famous for not being used simply because no one knows about them, or for gathering dust until there is a crisis, when sentiments are high and it’s hard to apply an unfamiliar process.
Broad community education about the methods available, as well as routine monitoring on whether the IPLC understands and agrees to the options, will help facilitate their adoption. This should be an ongoing, sincere effort and can be accomplished by mentioning the procedures regularly when checking in with the IPLC. This can also destigmatize the use of conflict resolution procedures in some social contexts.
Links to the grievance mechanisms and accountability processes for the following agencies are found here:
Intentional listening resources
The Nature Conservancy’s Policies and Procedures Manual, Reporting Suspected Violations of Law and Policy (2017) provides “a mechanism for employees to raise good faith concerns regarding suspected violations of law on the part of the Conservancy, to cooperate in an inquiry or investigation by a court, agency, law enforcement, or other governmental body, or to identify potential violations of Conservancy Policy or procedure; and to protect employees who take such actions from retaliation.”
Indigenous dispute resolution / “peacemaking”
The Indigenous Peacemaking Initiative is an initiative of the Native American Rights Fund, an organization focused on tribal justice issues.
Books on mediation
Christopher Moore et al., The Mediation Process: Practical Strategies for Resolving Conflict
Indigenous dialogue and storytelling
Jo-ann Archibald, Indigenous Storywork (2008). A PDF version is hosted by the publisher
Val Napolean & Hadley Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions Through Stories” (2014)
Other resources
“Practicing Cultural Safety,” from Towards a New Relationship, BC Association of Social Workers (2016)
For the entire conflict resolution process
Describe how TNC is building mutual trust, accountability and transparency with the IPLC
Co-create a trusted conflict resolution process that’s considered legitimate by all parties
Step One: Develop a Conflict Resolution Plan
Determine if there is a conflict resolution process required by a government or funder and if the IPLC is willing to comply with it
If the IPLC does not agree to use the required process, consider working together to propose an alternative process
If there is no conflict resolution process required by the host country government or a funder, or if there is one that only applies to certain complaints, collaborate with the IPLC and agree upon culturally responsive mechanisms for resolving conflicts
Agree upon a Conflict Resolution Plan with the IPLC that considers Dialogue, Mediation and the TNC Ethics & Compliance Process
Dialogue
Learn about the IPLC’s preferences and methods for dialogue
Train TNC staff to build and practice dialogue skills
Create a physically and emotionally safe environment for dialogue
Allow time for a meaningful dialogue process; respect IPLC timescales, needs and preferences; and provide more information and resources as needed
Mediation
If the IPLC is willing, discuss their preferred processes for resolving conflicts. Determine if the IPLC’s existing process is appropriate for resolving conflicts when they work with outsiders
Determine who will represent each party in the process and include their names in the Conflict Resolution Plan
Discuss the IPLC’s position on using outside mediators or facilitators for resolving disputes
Determine how input from different social identities will be meaningfully incorporated in the process
TNC’s Ethics & Compliance Process
Explain TNC’s Ethics & Compliance Process and how and when it can be accessed by TNC staff and partners (See Appendix V and www.nature.org/tnchelpline)
Step Two: Implement the Conflict Resolution Plan
Ensure parties know about the Conflict Resolution Plan, and explain the mechanisms, processes and outcomes
Provide measures to guard against retaliation
Decide together how the conflict resolution process will be documented
Consult with Legal Counsel, the Global Indigenous Peoples and Local Communities Team and Global Diversity Equity & Inclusion team if uncertainty arises
If an adverse impact is identified, remediate it promptly and fairly to prevent compounding the harm and the escalation of the grievance
Carry out the conflict resolution process in good faith, including rigorous follow-through until parties agree the conflict is resolved
Step Three: Continuously Revisit and Adapt the Plan
Use the conflict resolution process to support continuous learning for TNC and the IPLC
Revisit and update the Conflict Resolution Plan periodically, particularly when there are significant changes to the TNC project team, partners, work plan or budget
See Documentation Module for additional context and considerations for documentation
A Conflict Resolution Plan, including the menu of mechanisms available and records of how the plan was co-created and shared with the IPLC
Documentation of each dispute, how it was processed and its resolution, including:
Outcomes of dialogue, mediation or other mechanisms, agreed-upon resolution and next steps
Revisions or updates to the Conflict Resolution Plan based on experience and learning
[1] See the CbD 2.0 Guidance Document, Appendix C: Social Safeguard Questions and FPIC. https://www.conservationgateway.org/ConservationPlanning/cbd/Pages/default.aspx
[2] See the CbD 2.0 Guidance Document, Appendix D: Consideration of Human Rights in Conservation Projects: The Nature Conservancy’s Approach. https://www.conservationgateway.org/ConservationPlanning/cbd/Pages/default.aspx
[3] See https://www.iucn.org/sites/dev/files/iucn_esms_manual.pdf (IUCN); https://www.conservation.org/docs/default-source/gef-documents/20151115-accountability-and-grievance-mechanism.pdf?sfvrsn=92633125_2 (CI); and https://www.worldwildlife.org/publications/wwf-project-complaints-resolution-policy (WWF).
Wenland is a vast subarctic island. The European state of Albian claimed Wenland as a territorial possession during Albian’s period of expansion in the 1600s.
Historically, the Wen people were nomadic, and their traditional lands stretch across Europe from as far back as pre-Roman times. In the late 19th century during a surge in intolerant nationalism across Europe, the Wen were forcibly resettled to Wenland. They settled the southern part of the island, but as Albian immigrants began to travel to Wenland’s south coast and settle there, the Wen people were steadily pushed north into the permafrost region, known as the Wend.
In 1934, the Albian government issued a proclamation declaring the Wend as a Wen homeland. They funded the development of Wen self-government, but Parliament never ratified the proclamation. The modern Albian government doesn’t recognize the proclamation as legal, perhaps spurred by Albian citizens, most of whom fiercely oppose the idea of a Wen homeland. No one has actively interfered with the Wen’s occupancy and use of the Wend, so most Wen people withhold comment and avoid the issue.
In the 1970s, oil companies began offshore extractive operations without consulting with the Wen. Many Albian workers migrated northward and today the largest towns in the Wend are half Albian and half Wen. These towns have integrated economies and workplaces, but social segregation and ethnic tensions are ongoing. A few smaller Wen-only villages are scattered throughout the Wend.
There are three distinct Wen social and lineal groups: Wenna, Wenebe, and Wennec. Collectively, they’re called Camps, which alludes to the encampments they built when they first arrived in the Wend in the late 1800s. The Wenna and Wenebe Camps are now based in larger towns, while Wennec consists mostly of small villages that are more self-contained. The three Camps generally cooperate but have sometimes developed rivalries. The Wen Camps speak different dialects of Wennish, although they all speak Albian, too. The Wennec villages are the least proficient in Albian, whereas the Wenna and Wenebe are fluent.
One thing all Wen have in common is defining themselves by their survival in — and connection to — the Wend. They recite how countless peoples came to the Wend through the millennia, but only the Wen listened to the land and learned to live with it in harmony. The Wen hold deep knowledge of the landscape and are committed to protecting it.
Likewise, they’re committed to protecting their culture, including their language, traditional dress and ceremonies. A summer celebration draws Wen from all three Camps to sacred sites across the Wend for a month of festivals, cultural immersion and inter-Camp consultation.
The Wen maintain their own institutions of self-government, but they are citizens of Albian and subject to the jurisdiction of the Wenland territorial government.
Unlike Scenario 1, TNC has a large office in a southern Wenland city and a small office in a northern Wen town, where there are three ethnic Wen on staff. TNC has helped Wennec communities near its northern office fund and manage numerous conservation and community development projects over the years. We have not worked much with the other two Wen Camps.
1
As in Scenario 1, the TNC team is considering program activities regarding an old easement project for which no FPIC process was conducted. The idea of initiating activities around the easement has come up informally several times in conversations with Wen contacts, and everyone seems in favor. In this Scenario, is a broader FPIC process still necessary?
TNC may not need to immediately address the lack of FPIC in every legacy project; however, modifying, expanding, or revisiting a project may trigger that need. Because FPIC is such a powerful relationship-building tool, TNC should not shy away from exploring it. It’s not clear whether the Wennec Camp would be able to authorize further development of the project without involvement from the other Camps or broader Wen authority. An open FPIC process would answer this question and help TNC build trust and relationship with the Wenna and Wenebe Camps as well.
2
The Wennec Camp wants TNC’s help in developing a herd management program for the Wendbok, a culturally significant reindeer. In the past, Wendboks were a staple of the Wen diet, but overpopulation has become an issue in some regions where fewer Wen youth are taking up hunting.
The fact that the proposed action would affect a migratory herd means a management plan is more likely to affect the other Wen Camps as well. And an additional inquiry and consultation are warranted to ensure that all Wen people are being considered in the decision-making.
3
Following on the above, when TNC asks to begin a broad consultation process about the Wendbok, Wennec leaders firmly object, saying that there are political considerations TNC wouldn’t understand. They also say that a core tenet of Wen self-government is that individual communities control local land- and resource-use decisions — and this authority extends to migratory herds.
This scenario introduces tension related to the principle of Respect for Self-Determination, which urges TNC to respect the Wennec’s own understanding of their authority within broader Wen society. Without any clear evidence that this understanding is problematic, TNC should probably defer to the Wennec’s process. At the same time, TNC should let the Wennec know they will be checking in with the Wenna and Wenebe authorities, since TNC owes a duty of Respect for Self-Determination to the Wen people as a whole. TNC should be prepared for difficult cases where respecting a decision from one community could undermine self-determination of another or the community at large.
4
The Wennec move forward with their herd management program. TNC wildlife specialists who look at their initial plan are dismayed, saying it doesn’t take into account data about the whole ecosystem. The Wen individuals on staff at TNC tell their colleagues that the whole thing is probably just an attempt by local big shots to get around Wenland hunting permit restrictions that the Wen have long objected to. Can TNC take a stand against the program or at least its hasty implementation?
TNC does not have the agency to decide what’s best for the Wen. Instead, staff should defer to the Wen’s authority to exercise their self-determination. The fact that the Wennec Camp’s plan does not immediately meet the ideals or expectations of TNC is no reason to depart from Respect for Self-Determination, though it may lead to discussion with the Camp and an offer of assistance.
In any relationship with an IPLC, there is much that TNC likely doesn’t see; here, the Wennec Camp’s plan may rest on Indigenous knowledge about the herd and the ecosystem that is not stated in the plan documents. The fact that TNC has Wen staff members doesn’t negate the fact that TNC is an outsider organization. However, TNC’s commitments to Informed Decision-Making, Meaningful Consultation, and Inclusion could lead TNC to advocate for more discussion of the herd management plan, as long as it does so with respect for the Camp’s ultimate right to decide for itself.
Most Wen live and work alongside the Albian population in Wenland society under the Wenland territorial government and the Albian national government, but Wen self-government persists to an extent. The three Wen Camps occupy areas that partially overlap, and they each maintain a quasi-executive Camp Council.
1
Following up on point 6 in the “Permafrost Crisis” scenario, TNC is now working with all three Wen Councils to agree on an Engagement Plan. The Wenebe and Wennec Councils vehemently disagree on the amount of consultation needed. Both Councils acknowledge that neither is superior and that decisions affecting the Wen can only be made by consensus. Three months go by and the disagreement persists. FrostLock is considering abandoning its Wenland project, which neither Council wants. Can TNC adjust its involvement to pressure the Councils to agree on an approach?
The simple but profound truth is, TNC’s work with IPLC institutions must persevere even when things are hard or frustrating. True collaborative relationships and respect for self-determination aren’t contingent on things going as planned. TNC teams have to live with IPLC governance procedures we may find frustrating or counterproductive, but we need to work according to the rules and expectations of the system. Whether TNC can increase advocacy and try to pressure the Councils for legitimate purposes will depend on Wen rules and expectations—but this must be pursued in the spirit of Free Choice and zero tolerance for coercion.
2
In response to the disagreement, FrostLock suggests that TNC should work with FrostLock on a Plan B to conduct an FPIC process exclusively with the Albian government, noting that the Wen Councils are “just advisory anyway.” Can TNC entertain this suggestion?
No. Regardless of what authority the Wen Councils presently exercise under Albian law, Indigenous self-determination and self-government are larger, global commitments that TNC respects and upholds. TNC should embrace any opportunity to support Indigenous self-determination, even if there is an arguable basis not to.
3
While working with the Wen Councils, TNC is approached by a Wen splinter group, Wenza, that has a longstanding list of grievances about the Councils. Wenza claims that its voice will not be heard in the Council-led consultation process being planned. Does TNC have an obligation to hear Wenza out? What if the Councils tell TNC not to pay attention to Wenza? If TNC does listen to them and believes that Wenza has a legitimate distinct viewpoint that will not otherwise be included in the consultation process, does TNC have an obligation to take steps to include them?
TNC must adhere to the rules and expectations of established IPLC institutions, and we don’t get to decide how IPLC institutions should work. At the same time, we must uphold the Principles and Safeguards. Depending on the circumstances, the principles of Equity and Inclusion and Informed Decision-Making might justify encouraging the Councils to include Wenza, or proposing a process for its views to be heard. Any such action should be pursued in service of self-determination, as embodied in the Wen’s established institutions and processes.
4
Same as the above, except Wenza is a group of Wen women who have spent years fighting for more recognition and influence in the face of what they see as discriminatory practices enacted by the male-dominated Councils.
This is a difficult but not unusual scenario. The principles of Equity and Inclusion call for some effort at intervention. Given the existence of gender equity issues and the impact that the massive FrostLock initiative could have on Wen self-government and culture, gender should be considered a key issue. A collaborative analysis should be conducted using TNC’s Guidance for Integrating Gender Equity in Conservation. TNC’s participation lies within a continuum of attention to gender equity — from gender-blind, which often perpetuates entrenched discriminatory practices, to gender-balanced, -sensitive, -responsive and -transformative approaches. TNC does not have the power to dictate an approach to the Wen Councils, but staff should monitor gender equity and determine whether the Equity principle is being observed before proceeding with any initiative.
5
Same as the above, except that (a) the Councils don’t exclude women from informational sessions, only from having a final vote; (b) TNC becomes aware of claims that most Wen women oppose Wenza’s agenda; and (c) TNC hears from both men and women that Wen women have a strong voice in decision-making via family-based customs and cultural privileges.
This scenario is merely designed to illustrate how nuanced and difficult these situations can be. Cultural practices are not necessarily discriminatory just because they don’t map neatly onto the anti-discrimination norm as certain societies understand it. On the other hand, words like “nuance” and even the concept of cultural relativism is sometimes used to sustain problematic privilege models. This further underscores the importance of applying the principles of Equity and Inclusion in a culturally responsive approach.
Concerns linger about FrostLock and its technology, but the Wen Councils say they will give consent.
1
Leaders of the Wen Councils indicate that they can provide the Wen’s consent to the project without a popular vote. Should TNC push for a different process?
Absent some very clear problem, TNC should defer to the Wen Councils about the scope of their authority to speak for the Wen. Nonetheless, TNC may want to review the extent of community involvement in the consultation process. Approval of this initiative is a major decision, and the Wen have a complex and partially divided social structure. Have the principles of Inclusion and Informed Decision-Making been considered for all three Camps? Has the safeguard of the Right to Withhold Consent been protected? If concerns remain, a request for more process or broader indications of community support may be helpful.
2
Same as above, but Council leadership candidly admits they don’t want to submit this directly to the Wen people who will be fearful of the project. “This is a moment for leadership,” they say. Now should TNC push for a different process?
This scenario sharpens the dilemma, but the same analysis applies. The Wen’s self-determination as expressed through their established institutions must be respected. The decision on which matters should get a popular vote versus the determination of representatives is a constitutional decision made in different ways by all societies. To impose an outsider’s view of what is necessary would run counter to self-determination. That said, TNC might legitimately use any leverage we have within the process to advocate in the direction of more consultation and informed decision-making, while still maintaining respect for self-determination.
3
The Wen Councils say no formal document or memorial is needed to express consent. TNC legal and certain donors, however, insist on having some sort of documentation before they feel comfortable moving ahead with the initiative. Should TNC insist on some sort of documentation of consent?
TNC must continuously respect self-determination. But we can also condition our ability to further engage, make commitments, or deliver third-party commitments, like funding, on our own internal needs, including documentation. However, if limiting TNC’s involvement would threaten the overall project, this insistence could have coercive impact, which must be taken into consideration. TNC’s influence must be exercised in collaboration with the Wen to find a form of memorialization that is mutually satisfactory (see the Documentation Module).
4
FrostLock also wants to memorialize the consent and provides the Councils with an authorization agreement drafted by its lawyers. FrostLock insists that the document is the product of extensive review by FrostLock’s legal department and that it cannot be modified—and that the company cannot move forward until it is signed. Should TNC support FrostLock’s insistence that the Wen Councils sign this document?
Illustrating the concerns described in #3, FrostLock’s position may be coercive, non-collaborative and insufficiently respectful of self-determination. TNC should work with FrostLock to find a more collaborative approach.
5
Alternatively to the above, as the consultation concludes, the Wen Councils have not made any assurances about supporting the project but want to deliberate with their constituent communities. However, the Albian government announces its support, and FrostLock calls an end to the consultation, saying it has fulfilled the legal requirements and that no further process is needed because the Wen have no veto right under Albian law. FrostLock also says that the Wen have not formally withheld consent, they just have not made a decision. Can TNC stay involved in the project?
TNC must either use our leverage to resist moving ahead without full FPIC from the Wen or withdraw if FPIC isn’t reached. Even if TNC cannot change the facts of the situation, we must adhere to the guiding principles of FPIC, including respect for the Right to Withhold Consent. The fact that the Wen did not formally deny consent doesn’t matter. The Right to Withhold Consent is an essential safeguard, but FPIC is a broader and more affirmative concept which is not satisfied by a purported lack of clear opposition.
6
Alternatively to the above, the Wenna and Wennec Councils provide consent while the Wenebe Council vigorously opposes. Because the Wen have always operated according to consensus, there are no traditions or rules stating that the majority prevails.
This situation is best interpreted as revealing gaps and failures of the Informed Decision-Making and Meaningful Consultation safeguards. Why do the Councils disagree? TNC should take inspiration from the Wen consensus-driven model and continue the consultation and conflict resolution procedures until consensus is reached.
FrostLock has convened civil society organizations, Albian national and Wenland territorial government agencies and Wen Councils for a series of consultations on the possibility of deploying its technology across the Wenland permafrost. FrostLock will use its start-up funding to pay for the consultation, which will also address issues related to the administration of the Conservation Management Area that FrostLock is funding.
1
As the consultation process begins, a split emerges between the Wen Councils, who want a thorough process no matter how long it takes, and FrostLock and the Albian government agencies, who are more focused on efficiency and economic development. Should TNC take sides with the Wen Councils and push for a more thorough process?
Coalition work is about looking for areas of overlap and building on mutual agreement. TNC should strive for broad cooperation. But there will be times when taking sides is appropriate, particularly to reflect TNC’s strong institutional commitment to Indigenous self-determination. TNC should also be aware that social power imbalances and legacies of colonialism may have left the Wen in a disempowered position that requires affirmative mitigation. The scenario reflects a situation where TNC should consider using our leverage to assist the Councils in seeking more process.
2
As the consultation continues, TNC’s concerns grow. For example, FrostLock insists that the environmental issues are too technical for public consultation, which should just focus on social impacts. Despite initial misgivings, the Wen Councils hold a series of internal deliberations and ultimately decide they feel comfortable with the process moving forward in the way FrostLock suggests. Should TNC continue to push for a more robust process?
As noted, TNC has a strong commitment to process, but that commitment serves the principle of Indigenous Self-Determination. Where the Councils have made a considered decision like this, even one TNC disagrees with, TNC’s commitments to Meaningful Consultation and Informed Decision-Making may carry less weight.
3
As the process continues, the TNC team believes the project is a very bad idea because of: (a) severe environmental risks which are not being fully addressed; and (b) social risks to the Wen, such as the influence on the culture and lifestyle of Wennec towns from an influx of non-Wen project workers. Can TNC oppose the project even if the Wen Councils approve?
TNC’s views and positions are secondary and supportive as regards the Wen’s perspective, which is rooted in their right to self-determination even if their view is in conflict with ours. TNC may still offer constructive opinions to the Wen, but the extent to which we can advocate for a viewpoint without running afoul of the principles of Free Choice and Self-Determination will depend on the particular issue. In this scenario, TNC may have a stronger justification to raise opposition given that our basis is in environmental issues rather than paternalistic views around what is best for Wen culture.
4
Alternatively, the TNC team becomes convinced that the FrostLock technology is the only avenue to address this enormous climate threat and protect the health of the planet. The Wen Councils, however, are focused on the lack of specific employment guarantees for their communities. Can TNC vocally support the project even when the Wen are unconvinced?
TNC staff are entitled to their own views but must be accountable to the rules and expectations of Wen institutions and cultures. Staff must always act in service to Indigenous Self-Determination, Collaborative Relationships and Overarching Good Faith. This could mean exercising a degree of restraint even though TNC feels passionately. But where a collaborative relationship is well-grounded and the IPLC partner is free from coercive pressure, TNC might legitimately have more room to advocate strongly without infringing on other principles.
5
By the time the consultation process reaches the topic of the Conservation Management Area, the Councils say they trust TNC, the Camps are losing interest in the process, and TNC should just take care of the details regarding the conservation plan, which is within TNC’s expertise anyway. Of course, the Camps will vote at the end and thus have a voice that way, regardless of what TNC recommends. Can TNC take over this part of the consultation process?
Probably not. TNC can play a larger role at the Wen Councils’ request, but FPIC must be grounded in the IPLC’s fully informed decision-making and experience of consultation. Shortcutting the process may call its future legitimacy into question, especially for something this impactful.
The Wen have given consent for the permafrost stabilization initiative. They are also attracted to the annual conservation funding FrostLock has committed to provide, although FrostLock hasn’t given a concrete figure — just a range.
1
When TNC raises the idea of a Conflict Resolution Plan before moving into implementation of the project, Wen leaders say they’re exhausted and they don’t feel a Conflict Resolution Plan is necessary. Should TNC move ahead without a Conflict Resolution Plan?
This shows the importance of addressing Conflict Resolution early. A complex consultation process can easily generate frustration and conflict. Having a Conflict Resolution Plan could have helped ease some frustrations. Well-structured conflict resolution should be addressed in consultation and be part of informed decision-making. But respecting human rights is a continuous process, so it’s not too late to turn to the development of a plan. TNC should advocate for more consultation on conflict resolution, with the goal of arriving at a mutually agreed-on plan. If the teams need extra time to do this, that’s acceptable since it honors self-determination.
2
The Wen Councils are negotiating a Conflict Resolution Plan with FrostLock but insist that they don’t need one involving TNC because of the high level of trust and collaboration they have with TNC. Should TNC agree?
A plan should not be seen as indicating a lack of trust. It’s a method of building and maintaining trust, and clear expectations about resolving conflicts may be necessary to preserve that trust, and serve the larger principle of Accountability. So while it’s a nice compliment, TNC should encourage having a Conflict Resolution Plan.
3
The parties have prepared a detailed Conflict Resolution Plan, but FrostLock says it should be exclusive—that is, by agreeing to the plan, the Wen communities waive their right to bring any complaints or grievances to any other institution or court. Should TNC raise a concern?
Yes. TNC should resist this proposal. Our objective, supported by the principles of Accountability, Equity and Inclusion, is to strengthen and expand rights, not weaken them. Given the nature of the project, the scope and severity of impacts ahead cannot be known. A Conflict Resolution Plan provides an initial level of consensus on how to deal with conflict in a healthy way. It is not a mechanism to limit liability or foreclose remedies. International practice strongly disfavors attaching waivers to remedy options.
4
Same as above, except FrostLock is only insisting that parties must exhaust the procedures stated in the Conflict Resolution Plan before accessing other options. Should TNC raise a concern?
Exhaustion requirements are disfavored, too, but not disallowed. A key consideration here is Free Choice. Does the Wen community fully understand the exhaustion requirement and why it might be useful, e.g., predictability, efficiency, the creation of a full record? If the Wen are being asked to agree to this just because FrostLock wants it, the principle of Free Choice may need to be revisited.
5
The Wen say that any disputes that can’t be resolved in mediation must be submitted to the Wen Elder Councils for final, binding resolution. FrostLock’s lawyers won’t let the company expose itself to unknown or unfamiliar liability and they say they cannot proceed. What position should TNC take?
TNC should keep in mind the commitment to support IPLC self-determination. But exercising self-determination may not be entirely free of consequence. FrostLock may have a legitimate need to understand the consequences of an unfamiliar legal or quasi-legal process, and the Wen may not want to terminate the initiative. TNC should explore ways of working with FrostLock to understand the actual implications of Elder Council jurisdiction, and work with the Wen to find out how essential Elder Council jurisdiction is to Wen self-determination. A tailored Conflict Resolution Plan that submits some categories of disputes to the Elder Councils but exempts others might be a possibility.
6
Same as the above, but a women’s group from one Wen community objects, saying that since the Elder Councils are exclusively male, the mechanism will be used to disadvantage women.
Ideally a Gender Analysis was conducted during consultation using TNC’s Guidance for Integrating Gender Equity in Conservation. That analysis would be useful at this stage for insights into gender equity. It may reflect some consensus within the Wen about the nature of gender equity and how to address it. TNC should not impose any values on the process by condemning or withdrawing from the situation. Instead, TNC should strive to understand and take a culturally responsive approach, returning to the principles that guided the Learning and Early Discussions process. Still, all the Principles and Safeguards are relevant to all parts of TNC’s work, and there may be times when TNC will need to opt out of a process that entrenches or perpetuates inequity or exclusion.
TNC has several offices in mainland Albian and in Albian cities in Wenland.
We have managed and participated in several Albian conservation initiatives since the late 1980s. Our only project in the Wend to date was a coastal conservation easement funded by a private donor in 1997.
The donor allocated funding to pay a Wenebe community to steward the land and provide annual reports. The extent of consultation on the project is unknown. The agreement was purportedly signed by a Wen leader that today, no one has heard of. We have no evidence of reports or documentation of any discussions and the funding ran out in the early 2000s.
Soon after, the rapid growth of a nearby town, now populated by more Albian oil workers and their families than Wenebe, led to the construction of an Albian commuter suburb not far from the easement.
1
Wenland’s TNC team would like to increase conservation activities in the Wend, and has lots of ideas, starting with using the old easement as an inroad. The team knows that it needs to consult the Wenebe and is excited to hear their views. Are there any other considerations?
The TNC team can initiate research and early discussions with the Wenebe and should engage in discussion with all three Camps, following guidance in the Learning and Early Discussions Module. However, if the Wen have not actively sought our involvement, TNC needs to exercise special care to make sure the IPLC perspective and right of self-determination are at the center of the process.
TNC should acknowledge that as a large U.S.-based conservation organization, we are an outsider (see How to Use This Guide and When It Applies section of the Introduction to this Guide). TNC’s identity and privilege could lead to displacing prerogatives that belong to the Wen, since TNC doesn’t have deep roots in the Wend or close connections with the Wen people. Before coming in and proposing to help, a more gradual development of these relationships, not in pursuit of any specific initiative, may be more welcome and yield better results.
2
As regards the old easement, it seems clear that no FPIC was conducted at the time. Does TNC need to conduct an FPIC process now?
FPIC is an evolving standard. It is not necessarily wrong that prior interactions did not adhere to a standard that didn’t yet exist. At the same time, TNC’s Principles and Safeguards such as Respect for Self-Determination and Overarching Good Faith are forward-looking and not satisfied by technical defenses of past events. If the easement negatively impacts the Wen’s right to self-determination, or if there is lingering resentment about the lack of consultation, an FPIC process may be needed.
3
A local Albian conservation group, Albian Trust, has contacted TNC to sponsor the Trust’s proposal for new government funding to steward the land and expand the easement. Is an FPIC process with the Wen required before TNC can agree?
In this case, the legacy project is being updated and reworked. Contemporary standards apply, so yes, an FPIC process is needed.
4
Albian Trust’s proposal describes the easement as being located on untitled government territory. When TNC says FPIC is needed, the Trust responds that the Wen have no territory and are not Indigenous since they came to Wenland at the same time as the Albian. The Trust further notes that the Albian government has decreed that the Wen have no collective or other special land rights and that TNC must respect national law. How should TNC react?
It is not for TNC to determine the Indigenous status of the Wen people. And while TNC cannot violate national law, we can maintain our own commitments, which include actively supporting Indigenous self-determination. The Wen have a profound, ancestral relationship to the landscape despite their relatively recent arrival, and they have maintained their culture and language despite significant integration with Albian society. Most critically, the Wen consider themselves Indigenous. Thus, there are plenty of reasons for TNC to condition our own involvement on rigorous compliance with the Principles and Safeguards in this Guide.
5
Same as above, except that instead of arguing against FPIC, Albian Trust gladly agrees to any process that TNC or the Wen feel is necessary. However, it notes that a residential suburb of Albian oil workers is closest in proximity to the easement. Should the suburb be included in Wen dialogue and FPIC? Does it have the same right to grant or withhold consent as the Wen?
Absent more facts, an Albian residential suburb (built recently and for occupational purposes) would not appear to satisfy even the broad standard of profound connection to landscape that TNC uses. Thus, the residents of that suburb would not have the same right to grant or withhold consent as the Wen. That said, the principle of Inclusion would weigh in favor of including the suburb residents and other stakeholders as much as possible, in consultation with the Wen as Indigenous rights holders.
6
Same as above, but instead of a suburb of oil workers, the closest community is a commune of young Albian back-to-the-land families who focus on sustainable agriculture and living by traditional Albian religious values. They believe the Albian people were guided to Wenland by God, and they consider protecting the land to be a sacred trust. They also view the easement as critical to protecting their fresh water supply and right to a healthy environment.
The prior analysis stands, but it need not be exclusionary. To the extent the Albian community is motivated by a genuine connection to the land and sees its rights as intertwined with the land, its inclusion as a stakeholder can reflect its relationship to the land, even if it doesn’t exercise Indigenous rights.
In July 2019, a groundbreaking study on data gathered from a global network of permafrost test sites confirmed what climate experts had long feared: permafrost throughout the subarctic is thawing and beginning to release massive amounts of stored methane and CO2 into the atmosphere. A rapid meltdown could double the amount of CO2 in the atmosphere, and unstable thawed permafrost could trigger massive erosion and threaten infrastructure such as roads, bridges and buildings across the subarctic. In August 2019, TNC received a large private grant to explore permafrost preservation and mitigation strategies.
A few months later, FrostLock, a permafrost technology company, approaches TNC with an idea. FrostLock has developed and patented the use of hydrofracking technology and proprietary liquid gas mixtures to stabilize permafrost at a massive scale. In press releases, FrostLock touts its venture capital funding, its recruitment of the world’s leading permafrost geologists, and the minimal environmental impacts of its technology — which they claim could not only save the planet but generate tens of thousands of jobs. FrostLock proposes using the Wend to test its technology and pledges to compensate for the minimal environmental impact by funding a Conservation Management Area that would encompass most of the undeveloped Wend. FrostLock agrees to an FPIC process, which they will fund, but they want to approach the Wen arm-in-arm with TNC because TNC is trusted by the Wen.
1
Before TNC is contacted by Frostlock, we want to talk to the Wen about deploying the permafrost conservation grant funding we received from the private donor. Can TNC initiate discussions even though the Wen have not raised the issue?
Yes. TNC can pursue our own conservation agenda as long as we follow the Principles and Safeguards. The caution recommended by this Guide should not be read as discouraging TNC from offering our services. Often TNC’s ability to secure funding for conservation work is a key contribution we bring to an IPLC relationship. Initiating the discussions may call for extra care to ensure that any efforts are consistent with the Wen’s exercise of self-determination. The important fact is that, consistent with the principle of Prior Engagement and Collaborative Relationships, TNC is not bringing a fully developed plan to the Wen for approval but is initiating a discussion.
2
Regarding the FrostLock proposal, can or should TNC negotiate certain terms of cooperation, such as the extent of the Conservation Management Area, before agreeing to approach the Wen?
A transparent, multi-stage process may be appropriate, starting with informing the Wen of FrostLock’s proposal and seeking guidance on how to proceed.
The principle of Prior Engagement counsels against negotiating with FrostLock before discussion with the Wen. The reason is that having a discussion with FrostLock carries a risk of making decisions about the initiative before incorporating IPLC perspectives. TNC should be clear in discussions with the Wen that we have not yet vetted the initiative with FrostLock, much less endorsed the proposal.
3
Should TNC simply tell the Wen about FrostLock’s proposal and hand over negotiation to Wen leadership? What if the TNC team is concerned about the Wen’s practical ability to negotiate equitably with FrostLock?
TNC should be careful. Even handing over a proposal might be taken as an endorsement. And while TNC should scrutinize the basis for our concern over the Wen’s negotiating abilities, there will be circumstances where such concern is warranted. This project could have major impacts on the Wen and their land; as such, their right to self-determination is activated at its highest level, along with the underlying principle of FPIC. TNC cannot usurp the Wen’s role or undermine their self-determination, but respect for the Wen’s rights might require a more engaged approach.
4
Initial dialogue with Wen leaders shows that they don’t like the idea and just want to be left alone. Should TNC proceed with further consultation? What if TNC adamantly believes that FrostLock’s technology is the only hope to guard against catastrophic CO2 and methane emissions that could destroy all prior climate efforts?
Some degree of advocacy is appropriate, and it may be tempting to rely on the Informed Decision-Making principle to justify pushing the Wen into further consultation to educate them about the initiative’s importance. But neither the principle of Free Choice nor the Wen’s right to self-determination are served by forcing them to engage in unwanted processes. The balance will depend on the circumstances. TNC staff must be prepared to set aside even our strongest organizational commitments in order to respect the Principles and Safeguards, especially Indigenous Self-Determination.
5
Same as the above, but TNC is aware of several committed Wen climate activists who are trying to convince the Wen Councils to see things differently. Does this change the analysis?
Conflicting intra-community views might justify some effort to support processes that ensure all views are heard. But this must be done through IPLC institutions and processes. If Wen institutions have not clearly spoken, there may be more room to work alongside community members who share TNC’s own views. To preserve Overarching Good Faith, TNC must be careful to avoid sowing conflict in a community or Camp by supporting one group over another (see Wen Self-Government hypothetical scenario).
6
Alternative to the above, the Wennec leadership that TNC approaches for Initial Dialogue about FrostLock’s proposal is quickly and strongly interested and begins discussions about future meetings and consultation. Shortly thereafter, leadership from the Wenebe Camp sends a fiery letter to TNC saying that it has authority to speak for the Wen regarding any consultation process. What does TNC do now?
After receiving the Wenebe letter, TNC should slow down our work on the substance of the proposal and revisit the question of how we are engaging with the Wen. Once an Engagement Plan is in place, we can resume work on the proposal.
Situations like this are why the Guide recommends establishing an Engagement Plan as early as possible. The choice of who to talk with is often freighted with implications that outsiders don’t understand. TNC should have conducted enough research to know to start dialogue with all three Camps simultaneously.
The permafrost stabilization initiative is moving forward. FrostLock will implement 25 permafrost stabilization test sites in the far north. The initiative includes funding for Environmental Monitoring Committees to monitor water quality and other potential adverse impacts in towns near the test sites, which are almost exclusively Wen. In consultation with the Wen, an unpopulated 800,000-acre area has been designated a Conservation Management Area. TNC will oversee it for the first five years, then transfer management to a new, initiative-funded Wen organization at the end of that period, or when the new organization is ready.
A Gender Analysis was conducted during consultation. Everyone — Wen women’s groups and the Wen Councils alike — agreed that women were traditionally disempowered in Wen society, especially around collective decision-making.
The FrostLock initiative requires extensive engagement from Wen communities, and the Gender Analysis recommended that implementation should at least be gender-responsive, which contributes to the advancement of gender equality, and in some respects, gender-transformative, which challenges the distribution of resources and allocation of duties between men and women. (For more information on the Gender Integration Continuum see TNC’s Guidance for Integrating Gender Equity in Conservation.)
Wen women advocated for the Environmental Monitoring Committee membership to be separated from the Wen Councils. They described being denied agency in public affairs, including situations where they were allowed to participate but faced coordinated opposition from men through bloc voting on the Wen Councils. Other attempts to assert power have been responded to with recrimination and retaliation by men.
The Wen Councils agreed to a protocol where TNC will supervise the Environmental Monitoring Committees by providing technical assistance and selecting members from slates of nominees assembled by the communities. The Wen women’s group, Wenza, insists that a mandate for balanced gender representation be included, but the Wen Councils reject the proposal.
1
A handful of test sites are planned within the Conservation Management Area. FrostLock drafts a reporting protocol under which TNC will monitor the test sites, and the results will be shared only with FrostLock. It claims these particular sites do not impact the Wen and need not involve them. Can TNC agree?
No. The Wen claim is that the entire Wend is their ancestral Indigenous territory. Even without taking a firm position on that claim, TNC should not act inconsistently with it. For TNC to agree to treat the land as entirely outside of the Wen’s concern would not support their self-determination.
2
Membership on the local Environmental Monitoring Committees becomes a flashpoint. The Councils are uncomfortable with having given up the power to control the Committees’ budgets, especially hiring and procurement. They start trying to assert influence over the Committees using traditional Camp lines of authority. The Councils also ask TNC to share the slates of nominees before making a selection, even though this wasn’t part of the protocol. The Councils say they are better positioned to select the most qualified members, given their knowledge of the communities. Should TNC comply with the Councils’ request?
Many principles need balancing in this situation. TNC must try to balance them in collaboration with the Wen, while also taking responsibility for our own actions and standards. Respect for Self-Determination as expressed by the Wen Councils is important, but the process that has been created, with the Councils’ approval, has independent requirements of Equity and Inclusion. TNC owes a duty of Overarching Good Faith to the entire Wen community. Sharing the slates of nominees with the Councils might make sense if it is not prohibited by the protocol and would allow TNC to gain the benefit of the Councils’ knowledge and insight. But TNC shouldn’t deviate from the protocol. If an irreconcilable conflict persists, TNC should propose reevaluation of the process under a transparent and thorough new FPIC process.
3
As TNC reviews the nominees, the male nominees seem more qualified based on more extensive prior community leadership experience and more familiarity with the land and wildlife, much of it derived from experience hunting, an exclusively male practice. Can TNC favor female nominees despite this experience gap?
Yes. Equity and Inclusion are core principles of TNC’s work, and the selection process for the Environmental Monitoring Committees can be seen in the context of the agreement by the Wen Councils and other stakeholders that gender equity was a problem and that the initiative should be gender-responsive or gender-transformative where possible.
Notably, both prior leadership experience and experience derived from hunting are grounded in gender in Wen society. Reliance on these factors would entrench gender privileges in a new structure, the Environmental Monitoring Committees, perpetuating and arguably worsening the gender equity concerns. Open communication and transparency around female nominees is an opportunity to build trust and mutual learning for TNC and the Wen.
4
Women from several communities tell TNC staff that they won’t nominate themselves for Committee membership unless the Committees are majority women, because they believe the men will vote in bloc and that their participation in the Committees won’t be worth it. Can TNC agree to make the Environmental Monitoring Committees majority women to encourage women nominees to step forward?
This scenario is difficult. The Wen Councils agreed that gender equity was a problem and that the initiative should be gender responsive or transformative, but they also rejected the idea of fixed gender quotas. If TNC agrees to quotas now, that conflicts with our commitment to respect IPLC authority. However, the male-only Councils were the ones who voted to reject the gender representation proposal.
TNC should try to avoid a win/lose zero-sum approach and seek more inclusive solutions with the Councils, like creating safeguards to encourage women’s participation or re-raising the gender representation issue with more focus on the underlying goals.
5
The Environmental Monitoring Committees are there, in part, to assess complaints about environmental impacts, such as water quality problems, and convey them to FrostLock and TNC. FrostLock sets up a telephone hotline to enhance monitoring. A year in, TNC hears that FrostLock is sending representatives out to investigate hotline callers’ complaints directly, and in some cases taking measures like installing water filters and paying compensation if the caller signs a non-disclosure agreement. What should TNC do, if anything?
TNC needs to intervene. Though not directly responsible for FrostLock’s actions, TNC is linked to the initiative as a whole.
We should use our leverage to mitigate any implementation issues that run contrary to the Principles and Safeguards. Non-disclosure agreements in this context are suspect from a human rights perspective because they can perpetuate abuse, and requiring IPLCs to sign non-disclosure agreements in exchange for benefits runs contrary to principles of Accountability and Transparency.
But even if FrostLock removed that requirement, their direct engagement with hotline callers goes around the authority of the Environmental Monitoring Committees. Direct engagement could also impact the quality of data collection and monitoring and result in hiding or misrepresenting a bigger problem. To support IPLC self-determination, TNC should support the Committees in challenging FrostLock’s direct engagement with hotline callers and propose more equitable alternatives. Return to the Conflict Resolution Module for more information.
As the permafrost stabilization initiative gets up and running, the TNC team conducts a documentation review per the Guide, assessing what the team has been collecting throughout the process. The documentation file contains:
1
This is a new project team, and they are eager to know whether their documentation file is adequate. Where could it be stronger?
The team’s file might be improved, but it’s adequate and reflects diligent efforts to document a relatively well-established relationship with the Wen. For many projects where the IPLC has less administrative or technical capacity, the file may be considerably thinner and rely primarily on TNC notes and memos documenting oral processes and agreements.
A few areas where the file could be stronger:
2
FrostLock has been keeping its own file on the project and the consultation. At the signing ceremony, FrostLock proudly delivers to the Councils a neatly prepared series of 34 binders with reports, minutes and transcripts, saying they are an invaluable historical resource. Then FrostLock asks the Wen leaders sign a statement acknowledging the volumes as the “official record of the proceedings.” Should TNC have any concerns?
Yes. First, the principles of Informed Decision-Making and Overarching Good Faith weigh against seeking IPLC signatures or other approval of documents or materials that the IPLC is not familiar with in-depth and in detail. Asking the Wen to approve a document they haven’t reviewed is like asking them to sign a contract in a foreign language. Second, if there is going to be an official record of the proceedings, the Wen should have involvement in, or ownership over, the process of creating it.
3
FrostLock told its investors that technical evaluations agree on the likelihood of success of its stabilization technology. The technical evaluations, disclosed during the consultation, do not contradict this, but only barely: Evaluators put the likelihood of success at 51 percent. FrostLock doesn’t want evaluations to be included in the public record because they contain proprietary information. When the issue of the likelihood of success came up during consultation, the Wen said they would still support the initiative even if there was only a small chance of success. Can TNC go along with FrostLock’s request to limit the record?
FrostLock’s request may not be ideal, but it doesn’t seem deeply problematic. Transparency is an important part of Accountability, and reasonable protection of proprietary information is not inconsistent with that. FrostLock does not appear to be misleading investors, and their relationship with their investors is not a responsibility of TNC or the Wen. The Wen apparently have the information on likelihood-of-success that they need to make their decision.
4
Same as above, but the information FrostLock wants excluded from the record is about the proprietary chemicals being used in drilling and stabilization. Several of the chemicals are new and still undergoing testing. Is this a legitimate exclusion request?
This exclusion might be seen as undermining the effectiveness of the public record.
Public policy battles are ongoing around the world over the public’s right to know the contents of chemicals used for fracking. One purpose of a public record would be to allow the Wen and other stakeholders to revisit decision-making in light of new information — as might arise from ongoing testing. TNC and the Wen should try to find solutions that protect legitimate proprietary information but also accommodate the purpose of documentation. Perhaps an exception is warranted to reveal the chemicals to a select group of researchers only.
5
The Councils tell TNC they don’t have the capacity to do anything with the record, like share it with the communities. They just plan to keep it on file at the Council head office. So it goes?
TNC doesn’t live in a world of unlimited resources either, but the team might budget ways to make the record accessible, like an archival website, uploading key documents and session videos, or writing a one-pager that summarizes the process. If the consultation process was historic and involved collecting Wen stories, setting expectations, and hearing commitments from FrostLock and TNC, there could be many reasons that rights holders and stakeholders would want to revisit the process. Having everything readily available also serves the practice of continuous learning.
The permafrost stabilization initiative has been operational for three years, and the initial data on stabilization is promising. Some complaints about construction noise have come through, but there’s no evidence of environmental issues.
The following developments have occurred:
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Given all the investment by FrostLock, Wen elders are wondering if it is appropriate to withdraw their grant of consent for the permafrost stabilization initiative, or whether it is now too late. Is there nothing they can do about their dissatisfaction now?
On the one hand, Respect for Self-Determination does not mean that the Wen cannot be held to their commitments. But it may be unfair to hold the Wen too strictly to consequences they couldn’t have predicted, especially when the impact on self-determination is profound.
In response, TNC could decline to support revoking consent but still support the Wen’s right to revoke consent and bear the consequences, if they say it’s essential to their self-determination. Situations like this reflect a gap in the consultation process and the community education necessary for Informed Decision-Making. Perhaps the question of consent can be set aside in order to solve the underlying problems leading to dissatisfaction. The sentiment of “we would do it differently” might refer to specific aspects of implementation that can be addressed, or changes some community members want but don’t feel empowered to ask for. TNC should consider a new round of consultation to identify problems, and work with FrostLock to honor a strong FPIC process, which includes continual iteration, particularly when new information or changes arise.
2
TNC’s monitoring protocol notes the growing gender disparity on the Environmental Management Committees but adds that the only tool at TNC’s disposal, nominating authority, hasn’t succeeded. And while TNC has heard concerning stories about repercussions of the gender-equity focus for Committee membership in the Camps, no data confirms this. Furthermore, intra-community disputes are beyond the scope of TNC’s authority to monitor, much less interfere with. Is this an appropriate assessment?
No. More investigation is needed. The allegations reflect human rights impacts of the Environmental Management Committees and thus, the permafrost stabilization initiative. This requires a response just as environmental impacts would.
Wen women have sought outside assistance in the past, and the Wen community as a whole has agreed that gender disparity is an issue, which the all-male Councils even agreed to address during implementation. Still, given that rumors of harassment, discrimination and gender-based violence persist, TNC should make an extra effort to gain information, including through consulting TNC’s Guidance for Integrating Gender Equity in Conservation, and should seek out partners with expertise. The critical foundation and duty of all safeguards is to do no harm.
3
If the Albian government has been lobbied on the hot zone tourism issue and won’t budge, is the situation out of TNC’s hands?
TNC should not wash our hands of responsibility for this situation. The hot zone tourism is a direct consequence of the permafrost stabilization initiative (see UNDRIP, Article 12, which protects the right of privacy to religious and cultural sites). But this impact was impossible to anticipate. Even though neither FrostLock nor TNC has the power to prohibit tourism, both should use leverage and resources to mitigate the problem. Informational programs could be created to educate tourists about respecting the Wen’s privacy, or a hot zone exhibit or museum could be built far away from the celebration sites.
4
The Wen organization designated to take over management of the Conservation Management Area from TNC has stalled. No one has been hired, no plans are in place—and the organization may not be ready by the five-year mark. A TNC staffer suggests that the team not be in any hurry to push the organization along, as it will allow TNC to extend our management of conservation activities, such as the Wendbok reindeer herds. Is this acceptable, since TNC has no concrete obligation to do anything to support the Wen organization’s development?
TNC might not be obligated under the Initiative Agreement to help the Wen organization form, but Overarching Good Faith and Respect for Self-Determination may require more from us. Assuming responsibility for the Conservation Management Area may be integral to the Wen’s conclusion that the permafrost stabilization initiative was consistent with their self-determination.
For TNC to look the other way, while enforcing the provisions it favors, could lead to Wen mistrust of TNC and disillusionment with the overall initiative. TNC’s concern for the Wendbok herds is legitimate, but that can be pursued in more transparent and collaborative ways.
