On October 29, 2015, the International Council on Mining and Metals ("ICMM") released an updated version of the Indigenous Peoples and Mining Good Practice Guide ("Guide"). The Guide now provides practical guidance on the implementation of its 2013 official statement on Free, Prior and Informed Consent ("FPIC"). ICMM is an industry association comprised of 23 of the world’s leading mining and mineral companies, as well as 35 national and regional mining associations.
The Guide is intended to reflect ICMM’s commitment to ensuring that mining projects create lasting benefits for companies and local indigenous communities in a manner consistent with the principle of FPIC. While the Guide focuses on the mining industry, many of the issues and processes addressed in the Guide are relevant to other industry sectors and contexts, including oil and gas, hydro and forestry.
ICMM Position on FPIC
In 2013, the ICMM published its official position on FPIC in a document called the Indigenous Peoples and Mining Position Statement (PDF) ("FIPC Statement"). The FPIC Statement encourages ICMM members to seek to obtain the consent of Indigenous Peoples for new projects (and changes to existing projects) that are located on lands traditionally owned by, or are under customary use by, Indigenous Peoples, where such projects are likely to have significant adverse impacts on Indigenous Peoples. It is important to note that the FPIC Statement obliges members to seek consent, but does not require members to obtain consent. This is consistent with the development of the concept of FPIC at international law as part of the ongoing development of the human rights concept of indigenous rights. ICMM’s view of FPIC operates in tandem with a number of related commitments governing interactions between ICMM members and local indigenous communities. ICMM members were expected to align their policy frameworks for Indigenous relations with the FPIC Statement by May 2015.
The Guide outlines strategies for compliance with the ICMM’s commitment to FPIC, and offers guidance on fostering company-community relations more generally. This guidance is sourced in internationally recognized instruments, including the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"), International Labour Organization’s Convention No. 169, and the IFC Performance Standards. The Guide articulates high-level best practice principles for:
- fostering community engagement and participation at all stages of the project life cycle, from initial contact with local communities through to mine closure;
- mitigating project-related impacts;
- developing and implementing negotiated agreements to mediate relations between mining companies and indigenous communities; and
- designing culturally appropriate mechanism for anticipating, responding to and resolving community concerns and grievances.
In addition, the Guide highlights known challenges for applying these principles at the operational level and offers a suite of 13 tools, called the Toolkit, for building and sustaining mutually beneficial relationships with Indigenous groups. This includes guidance on tools and techniques to deal with circumstances where a company cannot gain consent, either because of opposition within the community, or because a community is too fractured to come to a decision. In such circumstances the Guide is clear that: “In cases where agreement cannot be achieved, despite the best efforts of all parties, it will be up to companies to decide whether they should remain involved with a project”. The Guide also discusses the elements of good faith negotiation, an essential prerequisite for demonstrating that FPIC is being sought; eventually obtaining FPIC; and maintaining FPIC throughout the life of a project.
As global demand for energy and minerals continues to grow, developers require a common sense approach to FPIC based on pragmatic advice that can deliver results. The Guide represents a welcome update to an already excellent tool, in order to address practical issues arising from trying to implement FPIC on the ground.
The Indigenous Peoples and Mining Good Practice Guide is available on the ICMM website.