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Free, Prior and Informed Consent: How To Rectify The Devastating Consequences of Harmful Mining For Indigenous Peoples'
Free, Prior and Informed Consent: How To Rectify The Devastating Consequences of Harmful Mining For Indigenous Peoples'
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a r t i c l e i n f o a b s t r a c t
Article history: The paper focuses on one of the topics of key concern for both indigenous peoples and the mining sector,
Received 6 January 2017 namely the corporate responsibility to respect indigenous peoples’ right to give or withhold their consent
Accepted 29 May 2017 to extractive industry projects in their lands and the fundamental role of this principle in altering the
Available online 21 July 2017
predominant and all too frequently devastating model of mining that is imposed in indigenous peoples’
territories. The paper traces the emergence of extractive industry standards and initiatives showing how
Keywords: continuing mining disasters and associated human rights abuse have obliged the industry to recognize
Extractive industry
indigenous peoples’ right to give or withhold their Free, Prior and Informed Consent to operations that
Indigenous peoples
Human rights
may affect their customary lands. It examines the development of industry good practice since the World
Free, Prior Informed Consent (FPIC) Bank’s Extractive Industries Review, the subsequent formation of the International Council on Minerals
Multi-stakeholder initiatives and Metals while considering the contribution its members have played in recent mining catastrophes
Mining involving indigenous peoples. It distills good practice on indigenous consultation and the principle of
native title from evolving national and international law and tracks how these have led to the inclusion of
Free, Prior and Informed Consent in the recent Initiative for Responsible Mining Assurance and Aluminium
Stewardship Initiative standards. The focus on the two most recent multi-stakeholder standard initiatives
in the mining sector offers a sense for where further developments may occur while also noting their
potential limitations. The paper concludes with recommendations to the extractive industry to recognize
and protect indigenous’ peoples’ rights as a preeminent principle of responsible mining good practices.
© 2017 Associação Brasileira de Ciência Ecológica e Conservação. Published by Elsevier Editora Ltda.
This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-
nc-nd/4.0/).
Introduction (Debo, 1970). These are but some of the most well-known exam-
ples of early mining disasters from indigenous peoples’ point of
Ever since Cristobal Colon’s first visit to the Americas the quest view (Moody, 1988; Cocker, 1999).
for gold has been a major driver of colonial and post-colonial All these invasions of indigenous peoples’ lands occurred con-
States’ take-over of indigenous peoples’ lands (Columbus, 1969). trary to early agreed principles of international law; that native
It was the lure of gold that led to the decimation of the Arawaks peoples’ are endowed with the same rights as other humans (Doyle,
of Hispaniola (Rouse, 1992), to Cortes’ destruction of the Aztec 2015a) and their lands should not be taken without their consent
Empire (Diaz, 1963; Thomas, 2003), and Pizarro’s subjugation of (Colchester and MacKay, 2004; Doyle, 2015a). Nascent interna-
the Inca (Hemming, 1970). The gold mines of Ashanti led Por- tional law, while ostensibly recognizing that native peoples had
tuguese explorers to sail round the west coast of Africa (Ley, 2000) inherent rights over their land and to govern themselves, nev-
and later brought British imperial rule to the area (Robinson et al., ertheless provided a series of justifications for infringements on
1965). Gold brought speculators onto indigenous lands in California those rights, which when combined with deceit, subterfuge and
leading to the near elimination of the indigenous peoples there the legally sanctioned (or otherwise) use of force, served to deprive
(Kroeber, 1961) and later to shatter the Tlingit during the Klondyke indigenous peoples of those basic rights.
gold rush (Wilkinson, 2005). Famously too it was gold mining that Since the 1970s, indigenous peoples have been active as a global
led to the annexation of the Black Hills, sacred to the Lakota (Sioux) movement insisting on their rights – equal to other peoples – to
self-determination, to ownership and control of their lands, ter-
ritories and resources and to ‘Free, Prior and Informed Consent’
∗ Corresponding author. (FPIC). Of all industrial sectors, it has been the extractive industries,
E-mail address: [email protected] (A. MacInnes). those involved in natural resource extraction (such as oil, metals,
http://dx.doi.org/10.1016/j.pecon.2017.05.007
1679-0073/© 2017 Associação Brasileira de Ciência Ecológica e Conservação. Published by Elsevier Editora Ltda. This is an open access article under the CC BY-NC-ND license
(http://creativecommons.org/licenses/by-nc-nd/4.0/).
A. MacInnes et al. / Perspectives in Ecology and Conservation 15 (2017) 152–160 153
minerals and aggregates) and its related processes (ranging from sponsors of the project (Caruso et al., 2003). Strong societal crit-
exploration to selling to end consumers) that have been most resis- icism however forced the Bank to commission its own Extractive
tant to acknowledging these rights. Although within the logging, Industries Review (EIR) in 2003 to examine what role, if any, the
palm oil, and to a lesser extent the sugar sector a subset of actors, World Bank Group should have in the oil, gas and mining sectors.
since the 1990s, recognized these rights in good practice stan- The EIR’s Final Report presented a year later to the World Bank,
dards (Colchester and Chao, 2014), even though the effectiveness found indigenous peoples warrant additional requirements, includ-
of these standards remains questionable, the extractive industries ing, but not limited to, effective guarantees for territorial rights, the
has only reluctantly and belatedly accepted this consensus. This right to self-determination (World Bank, 2003b) and crucially the
despite the fact that United Nations agencies, including the Inter- right to give or withhold their FPIC (MacKay, 2004).
national Fund for Agricultural Development – the first international The World Bank rejected many of the EIR’s findings, including
financial institution to adopt FPIC as an operational standard (IFAD, that FPIC should be the principal determinant of whether there is
2009) – the United Nations Development Programme and the Food community acceptance, and failed to incorporate sufficient safe-
and Agriculture Organization of the United Nations, all require or guards to the subsequent revision to its policy on indigenous
encourage adherence to FPIC in activities that they plan, finance or peoples’ (OP 4.10) in 2005. Instead it created a standard of ‘Free,
implement (World Bank, 2003a). Prior Informed Consultation’ resulting in ‘Broad Community Sup-
While the focus of the paper is on the emergence of FPIC as the port’ (BCS), a standard widely rejected by indigenous peoples as
standard with which companies must comply, it does not attempt inconsistent with their human rights. A similar standard previously
to engage with the content of FPIC or with the diversity of commu- used by the World Bank’s private sector lending arm, the Interna-
nity perspectives that must inform its implementation. It should tional Finance Corporation (IFC), of ‘good faith negotiation’ leading
also be noted though this paper addresses extractive industries to BCS, was removed following a review of BCS which clearly
in the broader sense, the primary focus of this paper shall be on demonstrated the standard is almost impossible to use effectively
the mining sector as this has been to date the most proactive of as a tool to establish certainty of support for a given project (Leake,
the extractive sector arms in acknowledging indigenous peoples’ 2008). Subsequently, the new IFC Performance Standard 7 adopted
rights.1 in 2012 required FPIC for certain categories of projects reflecting
the reality that FPIC applies irrespective of national legislation and
Early initiatives, including Extractive Industries Review should be triggered by any project which may effectively impact
indigenous peoples’ rights (UN General Assembly, 2010). The IFC
Extractive industry led initiatives have tended to generate more FPIC standard is now adopted by a number of lending institutions
suspicion than harmony. The first notable initiative was the Mining, as a condition of loans to the private sector and has played an
Minerals and Sustainable Development Project (MMSD), a research important role in establishing FPIC as the requirement to be met
initiative promoted by the industry’s Global Mining Initiative (GMI) by the industry and financial actors although effective implemen-
from 2000 to 2002 to review how the sector could contribute to a tation and verification of compliance with this IFC FPIC standard
global transition to sustainable development, tied into the World remain lacking 5 years after its adoption by the IFC. It is essential,
Summit on Sustainable Development (MMSD, 2002). While the however, that its implementation be consistent with indigenous
MMSD clearly had limitations from the perspective of indigenous peoples’ rights and be flexible enough to cater to local realities and
peoples – and of course constituted an attempt by the industry to the indigenous conception of FPIC.
rebrand itself as “sustainable” – its “Breaking New Ground” report The public sector arms of the World Bank (IBRD and IDA) con-
was relatively progressive, when compared to the establishment tinue to apply standards and guidance which have largely failed
of the International Council on Mining and Metals (ICMM) and to result in the sort of effective participation that the Bank itself
its initial position statements. The MMSD +10 report summarized seeks to ensure (OPCS, 2011), isolating and undermining tra-
the original MMSD position as “Government should recognize and ditional authorities, damaging indigenous peoples’ cohesiveness
uphold the rights of indigenous people and companies should act and alienating them from decision-making. New standards com-
‘as in to gain consent’. Indigenous people need an international ing into force from January 2018 will require FPIC under certain
body to establish and uphold good practice, and evidence of good project conditions, a welcome step, but have removed key planning
practice engagement between mining companies and indigenous requirements, which may serve to undermine the new inclusion of
people” (Buxton, 2012). One could argue that the MMSD report was FPIC. A further development of serious concern is the World Bank’s
the initial step towards acknowledging the relevance of FPIC and recent approvals for a series of projects in East Africa, including
the need to ensure respect for indigenous peoples’ rights. two in Tanzania (Chavkin and Ulman, 2016) where the Bank has
Nevertheless, the project was widely criticized for being noth- approved government requests to waive the indigenous peoples’
ing more than a public relations exercise directed at improving the policy. This has sparked real fears that the development lender
poor image of mining, rather than offering improvements in on site is setting an unfortunate precedent for future practices, reducing
practice. The lack of meaningful participation from any indigenous protections for indigenous peoples’ rights, particularly in Africa.
representation perpetuated the industry’s history of unilateral ini- Responsibility is therefore increasingly passing to the extractive
tiatives and its self-declared and “self-regulated” codes of conduct industry to apply industry-focused standards emerging from multi-
(Tauli-Corpuz and Kennedy, 2002). Furthermore, the major source stakeholder initiatives that safeguard indigenous peoples’ rights.
of all funding for the project was unsurprisingly the industry, which
provided $7 million (Caruso et al., 2003).
Whilst most civil society groups and indigenous organizations The International Council on Mining and Metals: policy and
rejected the MMSD and its commitments, the World Bank uncriti- practice
cally accepted its legitimacy, acting as one of the few non-industry
In May 2001, building on the work of the MMSD, the GMI
created the ICMM, to focus on industry implementation of sustain-
1
able development. One of the main objectives of the ICMM was
The oil and gas sector currently lag behind the mining sector in terms of rights
recognition, advocating meaningful consultation with communities over the need
to develop a policy for its members, which became operative in
for concrete community consent before proceeding with a development project May 2003. The ten principles in the code are phrased in aspira-
(IPIECA, 2012). tional terms, with heavy emphasis on “intent” on the part of the
154 A. MacInnes et al. / Perspectives in Ecology and Conservation 15 (2017) 152–160
member companies to improve their performance, but were ini- v. US Department of Interior, 2009b) only for them to be lifted
tially devoid of specific requirements for compliance (Sethi and in 2012. Although many of these events happened prior to the
Emelianova, 2006). For example, the third principle states its goal ICMM’s policy creation, Barrick continues to operate in the area
is to “uphold fundamental human rights and respect cultures, cus- causing irreparable damage to Western Shoshone lands, threaten-
toms and values” yet it did not fully embrace FPIC as a right of ing both the health of its people and the survival of their culture
indigenous peoples. This initial policy offered little effective protec- (Cavanaugh-Bill and Howard, 2012).
tion to mine-affected communities and failed to provide a minimal In Guyana, colonial domination and institutionalized racism
level of performance specific social practices to which all indus- prevail and are firmly entrenched in Guyanese law and policy –
try members were expected to adhere. Reference to indigenous something that mining companies such as ICMM member New-
peoples’ is scant at best, the text instead endorses the notion of con- mont have profited from (Colchester and La Rose, 2010). Mining
sent through the ambiguous language of “constructive dialogue”, concessions and exploration permits have been superimposed on
“respect for communities” and “serious engagement with them” ancestral lands to the extent that they now cover two-thirds of the
(ICMM, 2002) without committing its members to carry out con- country (Colchester and La Rose, 2010) while the local Amerindians
crete community engagement procedures. hold title to less than half of their traditional territories (Weitzner,
ICMM’s subsequent 2008 ‘position statement’ on mining and 2011). All this has occurred without the FPIC of Guyana’s indige-
indigenous peoples attempted to set a high standard for inter- nous peoples. The often ignored social and economic consequences
actions between mining companies and indigenous peoples, one include denial of access to traditional farming grounds; damage to
of cooperation, understanding and respect. The position state- hunting and fishing grounds; and the sexual exploitation of indige-
ment cautioned companies not to rely too heavily on national nous women (Atkinson et al., 2016).
governments to protect indigenous communities and encouraged Similar threats exist in Colombia, a country with a history of
companies to point out gaps in implementation of international armed conflict fuelled by extractive activities (Weitzner, 2011),
instruments and standards governments had agreed or ratified. It where AngloGold Ashanti (AGA), an ICMM member, has min-
requested members to consult with communities from “the earli- ing rights to 7.5% of the State’s territory. In 2008 AGA started
est possible stage of potential mining activities, prior to substantive exploration activities in the Cañamomo Lomaprieta Indigenous
on-the-ground exploration” (ICMM, 2008) through to closure and Reserve without the consent on the peoples who occupy the land
recommended projects to avoid, or at the very least minimalize (RICL, 2008). This violation happened despite the ICMM’s posi-
adverse impacts as well as make special arrangements to protect tion (Weitzner, 2012) illustrating that voluntary corporate social
indigenous sites of cultural or spiritual importance. Yet crucially, responsibility initiatives on their own are far from sufficient to
it did not acknowledge indigenous community’s right to say no uphold human rights on the ground, particularly in the context
to a mining project, a right embodied in the FPIC standard instead of armed conflict. More insidiously, they can mask human rights
endorsing the lesser standard of BCS for new projects (ICMM, 2010). abuses, given their reliance on self-reporting and lack of third-party
The 2013 position statement made progress on amending this. verification (NSI, 2012).
Although it does not overtly recognize indigenous peoples’ rights This does raise the question of the prospect for the effectiveness
to say no, it talks of companies working towards FPIC, noting that of other voluntary extractive industry initiatives such as the Initia-
“states may also play an important role in supporting. . .companies tive for Responsible Mining Assurance (IRMA) and the Aluminium
in the pursuit of FPIC” (ICMM, 2013). These obligations, although Stewardship Initiative (ASI) given that both will rely on self-
not ensuring all council members would obtain consent, set the reporting and a certain degree of third party verification through
expectation that indigenous peoples would receive a place at the audits. The shortcomings of similar initiatives in other sectors such
negotiating table. Interestingly, none of the ICMM position state- as the Roundtable on Sustainable Palm Oil (RSPO) and the For-
ments refer to the legacy of past mining operations and the need est Stewardship Council have illustrated that a system predicated
for this to be addressed in order for indigenous peoples’ rights to entirely on the ability of its auditors to monitor company oper-
be respected; this tends to be a major blind spot of current good ations is critically flawed (EIA, 2015). In both initiatives auditing
practice. firms have fundamentally failed to identify and mitigate unsus-
Unfortunately, it is easy to provide examples of where tainable practices, conducting substandard assessments. Oversight
ICMM members have fallen short of aspired policies, particularly of illegal practices is instead provided by the rigorous policing
regarding human rights violations. Barrick Gold – the world’s of communities and activists who must go through tedious com-
largest gold producer – expanded their mining operations into plaints procedures to achieve redress for company abuses. For these
Mount Tenabo and Horse Canyon in Nevada, USA, areas with initiatives to be effective and uphold indigenous rights, compa-
deep cultural and religious significance for the Western Shoshone nies must be legally bound to their human rights obligations as
peoples, despite local resistance. The UN’s Committee on the Elim- at present there are no clear obligations on corporations in relation
ination of Racial Discrimination (CERD) issued Early Warning and to respecting human rights under international human rights law,
Urgent Action decision 1(68) in 2006 (UN Committee Elimination apart from the weak formulation of the “responsibility to respect
Racial Discrimination, 2006), calling upon the United States to human rights” in the UN Guiding Principles on Business and Human
“freeze” and “desist” all activities conducted on ancestral lands Rights (UNGP).
without consultation with the Western Shoshone peoples. In 2008 When indigenous peoples’ have attempted to assert their
the CERD reiterated its decision and the Shoshone peoples sought human rights they have been met by threats and repression. In
a preliminary injunction to stop the destruction of their sacred Guatemala, the arrival of ICMM member Goldcorp incited protests
sites (IEN, 2010). Despite the judge acknowledging that the project among the Mayan indigenous peoples which led to criminaliza-
will desecrate the mountain and decrease the community mem- tion and intimidation of members of the community (Collectif
ber’s spiritual fulfilment from their religion the injunction was Guatemala et al., 2009). During the exploration phase of the
rejected on the grounds that the significant financial costs of the Marlin project Goldcorp, through its subsidiary Montana Explo-
injunction outweighed these religious factors (South Fork Band radora de Guatemala, met with the indigenous communities of San
v. US Department of Interior, 2009a). These financial costs could Miguel Ixtahuacán and Sipakapa in 2003 (Montana Exploradora
have been avoided had the community been initially consulted and de Guatemala, 2004). However, it did not carry out consulta-
given the opportunity to show their unwillingness to consent to tions on the proposed mining project as it falsely claimed (Van
exploitation. Later injunctions were successful (South Fork Band de Sandt, 2009), but used these meetings to pave the way for
A. MacInnes et al. / Perspectives in Ecology and Conservation 15 (2017) 152–160 155
smoothing land acquisitions, creating social division, and imposing improving the sector’s reputation and reducing legacy issues from
a private land tenure system on communal territories (Imai et al., this phase of the project due to poorly implemented FPIC processes
2007). This immediately triggered organized resistance in Sipakapa (Collins, 2016). In the words of the UN Global Compact, “obtain-
communities (Castagnino, 2006), where they organized their own ing FPIC in a ‘check-in-the-box manner is not sufficient to ensure
referendum, or consulta, on the issue. 11 of the 13 communities that the company respects the rights of indigenous peoples” (Lehr,
involved opposed the presence of mining activity in their region, 2014). Furthermore, it is the opinion of the authors that stronger
however the consulta was denied its legitimacy by the State and the state regulation of juniors – who are numerous, tend to be less
judiciary, a position Guatemala’s Human Rights Ombudsman con- risk averse and have an associated lack of transparency – is essen-
demns given the State neither adequately informed nor initiated a tial. It is juniors who commonly undertake the exploration stage of
dialogue with indigenous communities on the implementation of the mining cycle and who are the first to engage with indigenous
mega-projects on their territories (Van de Sandt, 2009). peoples.
In the Philippines, ICMM member Xstrata (later merged with
current ICMM member Glencore, who took over control of the
project) bought a controlling interest in the Tampakan copper-gold Free, Prior and Informed Consent
project on the traditional lands of the indigenous B’laan people.
The directly affected B’laan have consistently denied that they have FPIC is one of the most important principles that indigenous
given their FPIC to the project (Dinteg and Kaluhhamin, 2015). The peoples have used to protect their rights. It is derived from indige-
region of the project is already an area associated with internal nous peoples rights to lands, territories and resources, and from
armed conflict, but the B’laan’s resistance rapidly led to further cultural rights and self-governance rights, including the right to
conflict, and the deployment of various army units, armed security self-determination. The duty of State and companies to obtain
and paramilitaries (notably an ‘Investment Defence Force’, which indigenous peoples’ FPIC guarantees community driven consulta-
had the stated aim of protecting the company). Support groups tions and decision-making processes and ensures that indigenous
quote a figure of ten project related extra-judicial killings associ- peoples’ can effectively determine the outcome of decision-making
ated with the mine since 2001, including the murder of indigenous that affects them, not merely be involved in the process. The con-
leader Juvy Capion, with her two sons in 2012 (Kalikasan PNE, versation around FPIC therefore must go hand in hand with the
2015) Militarization of indigenous territories, and the consequent conversation around recognizing and respecting these rights, as
serious human rights violations (Franciscans International, 2014) otherwise it occurs in a vacuum with no benefit to indigenous
have resulted in a systematic narrowing of the space available for peoples’.
indigenous peoples’ political participation and have eliminated any FPIC has its origins in the principle of native title from common
possibility for justice and accountability. law, i.e. that native people have rights to their lands based on their
ICMM’s inclusion of guidance on FPIC in their 2015 Good Practice customary law and sustained connections with the land. As such
Guide provided a crucial step towards safeguarding indigenous they do not require any act of the State in order to assert those
peoples’ rights from the abuses already described. Nevertheless, rights. The principle of inherent rights over lands which native
the industry’s articulation of what happens if consent is not forth- peoples held prior to the arrival of colonizers was affirmed by the
coming – where ICMM members may rely on the “good faith” of Spanish conquistadores. Denying the application of terra nullius2
the State to judge whether a project may proceed – risks allowing to the Americas, de Vitoria, concluded “the aborigines in ques-
members to pursue projects in the absence of FPIC, putting them in tion were true owners, before the Spaniards came among them,
a position where they are potentially complicit in State violations both from the public and private point of view” (Vitoria, 1964).
of indigenous peoples’ rights. This shortcoming must be addressed In practice this right has been denied since the days of Vitoria
if ICMM is to champion rights based engagement with indigenous to the present day in nation states. This form of discrimination is
peoples and ensure that gross violations of these rights do not occur. now challenged by the more recent recognition of customary land
The challenge facing the industry therefore, is to go beyond State tenure under human rights law, which has offered to revive indige-
based initiatives aimed at consultation which fail to live up to inter- nous peoples’ sovereignty over their land. International human
national standards, and to ensure that consultations and respect rights law and jurisprudence affirms that indigenous peoples’ cus-
for indigenous peoples’ land, territory and resource, cultural and tomary land rights are not dependent on any ‘grant’ by the nation
self-governance rights are consistent with international standards. state, but are pre-existing and inherent rights grounded in tradi-
Larger companies tend to believe exploration activities are tional occupation and use of the land.
underneath the radar screen of reporting, and that they do not The landmark judgement of the Inter American Court of Human
need to report on their joint venture activities where they are Rights (IACHR) in Saramaka People v Suriname highlighted that it
not the operator. It is paramount therefore that ICMM members would be ‘meaningless’ to recognize land rights for indigenous
when considering a joint venture with a smaller company (junior) peoples without recognizing their rights over natural resources
or acquiring concessions from juniors undertake the necessary (Saramaka People v. Suriname, 2007). This mirrors the rationale
due diligence to ascertain whether interactions with indigenous adopted in the 2007 UN Declaration on the Rights of Indigenous
peoples have been managed appropriately in accordance with good Peoples (UNDRIP), the clearest articulation of indigenous peoples’
practice (ICMM, 2010) and if they are found to have violated this to rights which affirms the State duty to consult with indigenous
report them. In such contexts, due diligence is necessary to ensure peoples before adopting measures that may affect them and prior to
that there have been no prior human rights violations and to put the approval of any project affecting their lands and other resources
in place whatever remedial processes are necessary to ensure that (UN General Assembly, 2007).
human rights are respected. In cases where the wrong cannot be
remedied, or where consent has been withheld, respect for indige-
nous peoples’ rights would require that ICMM members do not 2
The expression “terra nullius” was a legal term of art employed in connection
proceed to acquire such concessions. with “occupation” as one of the accepted legal methods of acquiring sovereignty
In most situations where juniors are involved, there is little or over territory. “Occupation” being legally an original means of peacefully acquiring
sovereignty over territory otherwise than by cession or succession, it was a cardinal
no effort to obtain FPIC with indigenous peoples’ rights being fre- condition of a valid “occupation” that the territory be terra nullius – Latin, a territory
quently violated in the process of obtaining access to their lands. It belonging to no-one – at the time of the act alleged to constitute the “occupation”
is in the interests of the industry to eliminate these rogue actors, (Encyclopaedic Dictionary of International Law (3rd ed.) 2009).
156 A. MacInnes et al. / Perspectives in Ecology and Conservation 15 (2017) 152–160
The requirement to seek and obtain indigenous peoples’ FPIC while full consent pertains for serious issues and impacts. Haida
is either explicitly affirmed, or clearly implied, in a range of Nation v British Colombia upheld the Government’s duty of con-
other international instruments and standards,3 being a derivate sultation and accommodation prior to title being proven (Haida
of their rights to self-determination, non-discrimination, culture Nation v. British Columbia, 2004), echoing Taku River Tlingit First
and property. Notable examples being The Convention on Biologi- Nation v British Columbia where it was judged the States duty to
cal Diversity, an instrument that promotes the application of FPIC consult prior to approving the re-opening of a mine and the con-
that has been signed and ratified by 157 countries (Convention on struction of an access road through the territory over which the First
Biological Diversity, 2017), and International Labour Organization Nation claimed (Taku River Tlingit First Nation v. British Columbia,
Convention 169 (ILO 169) which instructs the relevant state entity 2004). Sadly, these decisions, despite challenging the notion that
to identify the indigenous peoples to be consulted on the basis of the State had a monopoly on the exercise of law, have not caused the
the content of the proposed measure, the degree of the relationship practice of government agencies and corporate interests to change
between the measure and the indigenous peoples and the mea- in response to their duty to consult indigenous peoples on projects
sure’s territorial scope. Although ILO 1694 has not been ratified by that impact them.
every country, the principles of consultation and participation that Even in States which have taken legislative measures to ful-
underpin the Convention are fundamental to the implementation fil promises of constitutional recognition of indigenous peoples’
of FPIC. ancestral land rights, such as the Philippines in its 1997 Indigenous
The presence of FPIC within national legislation is a crucial indi- Peoples Rights Act (IPRA), problems with the extractive industries
cator of the extent to which the State recognizes indigenous peoples have arisen. IPRA explicitly requires FPIC for significant devel-
rights within its jurisdiction. UN CERD’s General Recommenda- opment projects, like mining, in indigenous territories. However,
tion XXIII calls upon States to ensure that indigenous peoples’ in 2006, the National Commission on Indigenous Peoples (NCIP),
informed consent is attained before making decisions that directly the government agency responsible for protecting and promot-
affect indigenous peoples’ rights and interests (UN Committee ing indigenous peoples’ rights, revised its FPIC guidelines making
Elimination Racial Discrimination, 1997). Since the incorpora- it increasingly difficult for indigenous communities to implement
tion of ILO169 and UNDRIP into the international human rights their own visions of FPIC. Since then there have been significant
discourse several countries have allowed for stronger State recog- problems in IPRA’s implementation due in part to its inherent
nition of indigenous peoples’ land, territory and resource rights lack of representation of and accountability to indigenous peoples.
these include Liberia (The Community Rights Law, Liberia, 2009), Numerous violations have resulted in its poor application – sub-
Tanzania (The Land Act, Tanzania, 1999), Bolivia (The Bolivian verting the process for acquiring FPIC (Magno and Gatmaytan,
Constitution, Bolivia, 2009), Kenya (The Constitution of Kenya, 2013), recognizing false indigenous leaders to further the claims
Kenya, 2010), Cambodia (The Cambodian National Land Law, 2001), of mining companies (Castillo Llaneta, 2012a) and implementing
Ecuador (The Constitution of Ecuador, Republic of Ecuador, 2008), a defective, cumbersome and expensive process for securing cer-
Mozambique (Mozambique Land Law, Mozambique, 1997), Central tificates of ancestral domain title and land title (Castillo Llaneta,
African Republic (ILO, 2010), Benin (Benin Sacred Forest Law, Benin, 2012b). This has all been undermined by the poorly funded NCIP
2012), and India (Forest Rights Act, India, 2006). which was transformed by more powerful actors into a facilitator of
The trend is most pronounced in Latin America, where indige- corporate access to indigenous peoples’ lands, rather than an insti-
nous peoples are attaining significant recognition of customary tution which facilitated indigenous people to exercise their right to
access and formal rights to natural resources through the national self-determination (Doyle, 2015b). The NCIP has since promulgated
courts. Several countries have passed laws or have jurisprudence revised guidelines on FPIC (Republic of the Philippines, 2012) as a
that reference indigenous peoples right to FPIC. For example, way to address implementation challenges. The 2012 guidelines
the Constitution of Venezuela contains a provision requiring that stipulate that indigenous peoples have the right to develop a res-
native communities be consulted and provided with information olution of consent or crucially a resolution of non-consent. They
prior to State exploitation of natural habitats (Constitution of the also provide for multiple application of FPIC throughout the life
Bolivarian Republic of Venezuela, Venezuela, 1999). Judicial rul- of a project, denote excluded areas (including sacred grounds and
ings have clarified the requirement for FPIC should be assumed to burial sites) and require the participation of indigenous leaders on
apply in the context of large-scale extractive projects. The Constitu- the field research team (Magno and Gatmaytan, 2013). Effective
tional Court of Colombia, for example, has issued numerous rulings implementation of the new progressive rules will be critical if the
ordering the suspension of development projects, or declaring leg- Philippine government is to achieve real community participation
islation unconstitutional because of a lack of prior consultation with in the natural resources decision-making and genuine protection
indigenous peoples (DPLF, 2011). In one instance, it held that “the of indigenous peoples’ rights.
information or notification that is given to the indigenous commu- While the obligations incumbent on States have tradition-
nity in connection with a project of exploration or exploitation of ally been the focus of international human rights law, there is
natural resources does not have the same value as consultation. It strong arguments in contemporary law that obligations to respect
is necessary. . .that community declares, through their authorized human rights can apply to non-state actors including multina-
representatives their consent” (Constitutional Court of Colombia, tional corporations.5 The unanimous endorsement of the UNGP
1997).
The Canadian Supreme Court in Delgamuukw v British Columbia
(Delgamuukw v British Columbia, 1997) held that the duty of the
5
State to consult with indigenous peoples is proportionate to the Among others see, Rio Declaration on Environment and Development, UN Doc.
A/CONF.151/26 (vol. 1) (1992); Copenhagen Declaration and Programme of Action,
expected impacts on traditional lands and resources. In the case
UN Doc. UN Doc. A/CONF. 166/9 (1995); G.A. Res. 42/115, 11 February 1988, The
of minor impact, a duty to discuss important decisions pertains Impact of Property on the Enjoyment of Human Rights and Fundamental Free-
doms; Commission on Human Rights Resolutions 1987/18 and 1988/19; principles
relating to the human rights conduct of companies. Working paper prepared by
Mr. David Weissbrodt. E/CN.4/Sub.2/2000/WG.2/WP.1, 25 May 2000; M. Addo (ed.),
3
Experts Mechanism on the Rights of Indigenous Peoples (2011), A/HRC/18/42 Human Rights Standards and the Responsibility of Transnational Corporations. The
(2011), UN CERD General Recommendation XXIII (1997). Hague: Kluwer Law International (1999); J.R. Paul, Holding Multinational Corpora-
4
ILO169 does not explicitly recognize the right to self-determination, neverthe- tions Responsible Under International Law 24 Hastings Int’l. and Comp. Law Rev.
less it can act as a tool for its realization. 285 (2001); Patrick Macklem, Indigenous Rights and Multinational Corporations at
A. MacInnes et al. / Perspectives in Ecology and Conservation 15 (2017) 152–160 157
in 2011 called on corporations to respect human rights, indepen- potentially important institutional mechanism through which they
dently of the State compliance with its duty to protect those rights, can seek to pressure the extractive sector to respect their territo-
and to operate to internationally recognized human rights stan- rial rights. IRMA plans to beta test its certification system in 2017,
dards (Voss and Greenspan, 2012). This requires the identification with independent auditing. There have been concerns raised that
of indigenous peoples and any potential impacts on their rights IRMA is such a relatively high standard that it may not be applica-
prior to decision-making in relation to plans or activities potentially ble widely across the industry, but creating shared high standards
impacting them (UN General Assembly, 2011). The responsibil- and then independently verifying if companies can achieve these
ity includes the requirement to consult with indigenous peoples seems to be the way forward.
in order to obtain their FPIC (UN General Assembly, 2011). These
processes must be implemented at the earliest possible stage of a
project, prior to the issuance of licences or concessions and cer- Aluminium Stewardship Initiative
tainly before the commencement of any mining activity.
Ultimately, FPIC provides the platform that is necessary for The flaws of MMSD and ICMM have allowed initiatives such as
constructive engagements with indigenous peoples in a manner IRMA and ASI to rise to prominence in response to growing pressure
consistent with the corporate responsibility to respect human from stakeholders in the mining supply chain to assure the pro-
rights (United Nations, 2007). In doing so, it also offers the only tection of indigenous peoples’ rights. Historically, the production
practical long-term approach to the pursuit of extractive projects of aluminium in particular – involving bauxite mining and large-
in or near indigenous peoples’ territories. Therefore, to guarantee scale dams supplying cheap power for smelting and refining – has
the extractive sector lives up to its human rights responsibilities, had significant direct adverse effects on indigenous communities.
in particular respect for indigenous peoples’ rights, recognition of A case in point is the experience of Adivasi indigenous peoples in
the standard is absolutely critical. India, where Vedanta Resources’ attempts to exploit the world’s
One of the major outstanding challenges with the FPIC standard, fourth largest bauxite deposit in the sacred Niyamgiri mountain –
remains its enforcement and compliance. Evaluations of FPIC pro- located in the heart of the Kond tribal area – was the subject of inter-
cesses indicate the difficulties involved in actual implementation, national condemnation (Doyle et al., 2015). Investigations in 2009
especially in the absence of consensus among indigenous peoples’ by the UK Government’s National Contact Point found the company
(where some may favour cooperation with a company while others had made no significant attempts ‘to put in place an adequate and
oppose). Similarly, challenges due to complex layers of legislation, timely consultation mechanism’ (London Mining Network, 2012)
unsettled land-tenure, low government capacity, lack of existing or seek Dongria Kond community consent (Amnesty International,
institution infrastructures and transparency regarding compensa- 2012) despite falsely claiming otherwise (London Mining Network,
tion make verification of compliance with the FPIC principles tough 2012).
to determine (Christoffersen, 2015). A concern is that companies Just as local stakeholder resistance culminated in a successful
and States alike are turning FPIC into a formality no longer based on Indian Supreme Court ruling in favour of the Kond community,
customary laws, by manipulating processes and certifications with- pressure from the international community led to a fair and con-
out due verification of procedure in the community. This could lead structive discussion between the aluminium industry and civil
to FPIC being reduced “from constructive collaborative decision- society. The results of both have been extremely positive; the Don-
making to a reaction to externally defined projects or to a single gria Kond when given the opportunity to decide whether they
event with no longer-term engagement” (Feiring, 2013). wanted bauxite mining on their ancestral land unsurprisingly voted
unanimously against the project (Doyle et al., 2015). To date,
Initiative for Responsible Mining Assurance despite continued intimidation and ongoing plans for mining, that
vote has been respected. ASI, grew out of years of collaboration and
The most promising of extractive industry multi-stakeholder input from a global group of stakeholders in the aluminium supply
initiatives involving indigenous peoples is IRMA (IRMA, 2016). The chain, civil society, research and policy organizations (Aluminium
aim of IRMA is to establish a multi-stakeholder and independently Stewardship Council, 2017a). The international multi-stakeholder
verified Responsible Mining Assurance system that improves social approach resulted in the launch of the ASI Performance Standard in
and environmental performance. IRMA is not the most recent of ini- 2014 which crucially recognized indigenous peoples’ right to give
tiatives, having been founded in 2006. Unlike the MMSD and ICMM, or withhold their FPIC (Aluminium Stewardship Council, 2014).
the development of the IRMA standard is much more of a multi- The development of the ASI standard is clearly a step in the right
stakeholder process, involving players such as mineral buyers – direction, it has set an exciting new precedent for other sectors of
particularly jewellers – who were seeking ways to certify their sup- the extractive industry to follow. Multi-stakeholder-dialogues, a
ply chains. Learning from previous failures, there was an attempt to system of checks and balances, and transparent decision-making
build up trust among a small number of key players, allowing time help both the private and public sectors to overcome their reserva-
to truly address even the more problematic issues, such as FPIC. tions and foster a stronger relationship between the mining sector
Crucially, IRMA early on recognized the importance for indigenous and indigenous peoples. This is not to say they are without their
peoples (and local communities) to be directly represented as a key challenges, evidence from the RSPO and FSC demonstrate that sys-
stakeholder in negotiations, and not just be added as a subgroup of tematic weaknesses exist over the efficacy of the monitoring regime
non-governmental organizations (NGOs). where responsibility is delegated to auditing firms that are funda-
Both these positive steps – the inclusion of indigenous peoples mentally failing to identify and mitigate illegal practices. For these
and the time taken to fully consult resulted in the second draft of initiatives to be effective and uphold indigenous rights, compa-
the Standard for Responsible Mining, which was released in April nies must be legally bound to their human rights obligations as
2016. This draft includes provisions requiring the FPIC of indige- at present there are no clear obligations on corporations in relation
nous peoples and may afford indigenous peoples with another to respecting human rights under international human rights law,
apart from the weak formulation of the “responsibility to respect
human rights” in the UNGP. Furthermore, the tensions between
International Law, 24 Hastings Int’l. and Comp. Law Rev. 475 (2001); and B. Frey, The
these voluntary standards adopted by industry and company obli-
Legal and Ethical Responsibilities of Transnational Corporations in the Protections gations to comply with national laws may create contradictory
of International Human Rights, 6 Minn. J. Global Trade 153 (1996). pressures in the future.
158 A. MacInnes et al. / Perspectives in Ecology and Conservation 15 (2017) 152–160
This said, one of the core strengths of ASI is in the way it to the legality of concessions and their potential revocation (Voss
has involved indigenous peoples. Since 2015 it has established an and Greenspan, 2012). The World Resources Institute published a
Indigenous Peoples Advisory Forum whose principle aim is to sup- report in 2007 that makes a business case for FPIC, arguing that
port indigenous engagement with the ASI (Aluminium Stewardship extractive companies incur greater long-term costs if they operate
Council, 2017b), guiding their input through their chosen orga- without the consent of affected communities (Herz et al., 2007).
nizations. ASI represents a new type of involvement for affected Newmont’s experience in Cajamarca is a notable example, where
communities – one of collaboration rather than subjugation. Thus, indigenous protests to the development of the massive Mina Conga
the ASI standard is taking an important stand towards fulfilling project bought operations to a halt. The mining giant claims that it
its role as a safeguard for indigenous peoples’ rights across the lost approximately $2 million per day in the first few days of local
entire aluminium value chain. By requiring companies to commit protests (International Business Times, 2012). The project remains
to respect and implement, FPIC. ASI has built solid foundations paralyzed to date. The message is clear. The extractive industry
for a comprehensive third-party certification system, one which must toe the line on human rights and pursue due FPIC processes
respects fundamental freedoms. These foundations will face their or face increasing difficulties in dealing with both the local and the
true test when the certification comes into effect later this year. international community.
Conclusions References
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