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The mining industry's tentative commitment to Indigenous rights and FPIC

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Ballot for community referendum on mining.Last month the International Council on Mining and Metallurgy (ICMM) issued a new position paper, “Indigenous Peoples and Mining”. The position statement “sets out ICMM members’ approach to engaging with Indigenous peoples and to free, prior and informed consent (FPIC).” Twenty-two mining companies make up ICMM, including Canadian majors Barrick, Goldcorp, Inmet (now owned by First Quantum), and Teck.

Key to the new position statement is the ICMM’s stated commitment to FPIC. That Indigenous people have the right to give or withhold their consent for mining projects has not been a concept that the industry has taken on easily. Rather than accepting the right to say no, industry organizations and companies have widely acknowledged the right to be “consulted” but repeatedly insisted that this did not mean a right to say no. In acknowledging the right to say no, ICMM is following other developments in major international agreements and standards such as the UN Declaration on the Rights of Indigenous Peoples and the International Finance Corporation’s Performance Standards.

Emily Greenspan from Oxfam America has posted a useful commentary, noting that “ICMM’s commitment to FPIC is an important step, demonstrating that the mining industry is beginning to recognize that the terms of the debate have shifted.”

The step forward does seem somewhat tentative. Greenspan also points out that “the FPIC language later in the policy could create confusion for companies.”

This later text is in fact the crucial part of the document as it is where the commitments are specified. Two areas of potential confusion identified by Greenspan are: reference to documents for guidance that do not acknowledge the right to withhold consent, and the deference to decisions of national governments that may not be consistent with those of Indigenous peoples.

I would add several other areas of concern.

The commitment to FPIC is stated as “work to obtain consent” rather than something clear and decisive like not proceeding without consent.

The policy isn’t to be fully implemented until 2015.

ICMM commits to “early engagement”, but doesn’t indicate where in the mining sequence this should be. This early engagement is a critical issue raised in a recent (and highly recommended) report Making FPIC a Reality. The report notes that according to the normative framework of Indigenous peoples’ rights, consent should be acquired even before concessions are granted on indigenous territories; presumably this would also apply where concessions are not granted but companies may freely stake claims on indigenous territory (an issue addressed in the recent Canadian case of the Ross River Dena).

Another important principle in Making FPIC a Reality was the right of Indigenous people to not have to engage in long drawn-out consultations when they have, for good reason, determined a priori that mining is not something that fits in their development plans. The language in the ICMM position is not at all in line with this and is repeatedly skewed towards the assumption of an eventual agreement; for example, “[c]onsent processes should focus on reaching agreement on the basis for which a project (or changes to existing projects) should proceed.” The statement also references the use of a mediator in the case of disagreements. Certainly, where it’s a question of mitigating or compensating for impacts, mediation may be appropriate. But when Indigenous people simply do not want mining in their territory, there is little opportunity for a mediated settlement.

Greenspan correctly ends her blog noting that a position statement is one thing, but action is another! We certainly hope that this new ICMM position statement will result in fewer conflicts such as those that have resulted in tragic outcomes across Latin America, or jailed Indigenous leaders in Ontario. It may represent a step forward, and may have influence outside the small club of the ICMM, but it will only be a requirement for its 22 members. (At that the consequences of failing to comply are minimal.) This leaves me to ask what standard the 1600 or so other companies listed on the Toronto Stock Exchange and Venture Exchange will be held to?

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