Indigenous Peoples and Mining
International Council on Mining and Metals, May 2013
This position statement, to come into effect in May 2015, sets out ICMM member companies’ approach to engaging with indigenous peoples and to free, prior and informed consent (FPIC), and replaces ICMM’s 2008 position statement. ICMM is currently comprised of 22 mining and mineral companies as well as 35 national and regional mining associations.
It is recognized in the statement that “Indigenous Peoples have individual and collective rights and interests and it is internationally recognized that their rights should be protected by governments and respected by companies,” while “States have the right to make decisions on the development of resources according to applicable national laws, including those laws implementing host country obligations under international law. Some countries have made an explicit consent provision under national or sub-national laws. In most countries however, neither Indigenous Peoples nor any other population group have the right to veto development projects that affect them”, so FPIC should be regarded as a principle to be respected to the greatest degree possible in development planning and implementation.” Commitments address: engaging with potentially impacted indigenous peoples with the objectives of ensuring that project development fosters respect for the rights and culture of indigenous people; minimizing impacts and ensuring sustainable benefits for indigenous peoples; understanding and respecting the rights, interests and perspectives of indigenous peoples regarding a project and its potential impacts; agreeing on appropriate engagement and consultation processes with potentially impacted indigenous peoples and relevant government authorities as early as possible during project planning, to ensure their meaningful participation in decision making; and collaborating with the responsible authorities to achieve outcomes consistent with the commitments, in situations where the government is responsible for managing indigenous peoples’ interests in a way that limits company involvement.
On FPIC, member companies commit to “work to obtain the consent of indigenous communities for new projects (and changes to existing projects) that are located on lands traditionally owned by or under customary use of indigenous peoples and are likely to have significant adverse impacts on indigenous peoples, including where relocation of indigenous peoples and/or significant adverse impacts on critical cultural heritage are likely to occur. Consent processes should focus on reaching agreement on the basis for which a project (or changes to existing projects) should proceed. These processes should neither confer veto rights to individuals or sub-groups nor require unanimous support from potentially impacted indigenous peoples (unless legally mandated). Consent processes should not require companies to agree to aspects not under their control.” Furthermore, member companies commit to address the likelihood that differences of opinion will arise, which in some cases may lead to setbacks or delays in reaching a negotiated agreement in good faith. Where consent is not forthcoming despite the best efforts of all parties, in balancing the rights and interests of indigenous peoples with the wider population, the government might determine that a project should proceed and specify the conditions that should apply.
According to a press release by the First Peoples Worldwide, the document provides loopholes for dodging indigenous consent and restricts some of the more progressive thinking of the 2008 position paper, which cautioned companies not to rely too heavily on national governments, which may have a history of dismissing indigenous peoples’ identity, interests and rights as articulated in international conventions, and acknowledged an indigenous community’s right to say no to a mining project. Instead, the 2013 policy allows member companies to rely on the good faith of the state and puts the ultimate decision in the hands of the state.