The International Council of Mining & Metals (“ICMM”) recently released a position statement on indigenous peoples and mining that explicitly requires its 22 member companies to work to obtain the free, prior, and informed consent (“FPIC”) of indigenous communities for new projects (and changes to existing projects).
Specifically, ICMM 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[.]
The position statement replaces an earlier statement, released in 2008, which included a specific consultation requirement, but did not require companies to seek consent. The new position statement explains that consent processes should:
focus on reaching agreement on the basis of which a project (or changes to a project) should proceed;
strive to be consistent with traditional decision-making processes while respecting internationally recognized human rights; and
be based on good faith negotiation.
The position statement also states that consent processes should not:
confer veto rights to individuals or sub-groups;
require unanimous support; and
require companies to agree to aspects of the project that are not under their control
The position statement is not intended to apply retrospectively. As with all ICMM commitments, companies will be required to independent external assurance that they are meeting the requirements reflected in the new position statement.
Looking ahead, companies face the challenge of operationalizing these commitments through the development of consultation and consent processes that ensure the meaningful participation of indigenous communities in decision making. This requires a concerted focus on capacity building, both within companies and within communities.
Companies must also determine how best to operate consistently with international and industry expectations while managing complex relationships with sovereign states. This is particularly challenging when governments view corporate consultation processes with specific communities as directly threatening to state sovereignty.
Finally, companies also face the challenge of implementing corporate-wide consultation commitments in different national contexts while addressing local legal and regulatory requirements that may be inconsistent from one country to the next. Many of concerns were explored in a report published by Foley Hoag in 2010, Implementing a Corporate Free, Prior, and Informed Consent Policy: Benefits and Challenges.