The new Good Practice Guide - Indigenous Peoples and Mining released by the International Council on Mining & Metals (“ICMM”) should prove informative to a wide variety of stakeholders concerned the impacts of corporate activities on indigenous communities. The topics covered by the guide include: engagement and consultation; impact assessments and baseline studies; negotiated agreements; benefit sharing; and grievance mechanisms.
ICMM produced the guide for companies in the mining industry, including its 19 member companies, but explicitly notes that the guide has relevance for companies in the oil and gas and construction industries, as well as indigenous peoples' groups, governments, and civil society organizations. The guide is intended, in part, to implement the commitments set forth in ICMM's Position Statement on Mining and Indigenous Peoples, published in 2008.
The guide both underscores the ethical importance of "acknowledging and respecting Indigenous Peoples' rights and interests," and seeks to emphasize the business case for responsible corporate engagement with indigenous communities. Throughout the guide are examples of "The Costs of Getting It Wrong," and the stories are convincing. In one example, a company received government approval for the resettlement of a specific population, but ultimately had to abandon the project after community opposition led to attacks on the mine site and a nearly-unanimous public referendum against the mine development. Through such case studies, the guide highlights the challenges that may be faced by companies that fulfill government regulatory requirements regarding environmental and social impact assessments, but fail to meet the expectations of the communities that may be impacted by their operations. The examples cited in the guide demonstrate that gaining a social license to operate may be more challenging than gaining governmental approval, and that failure to secure a social license can slow or halt a project.
Although indigenous groups may be disappointed that the ICMM maintains its standard of free, prior, informed consultation and broad community support, rather than consent, they may be pleased with some aspects of the guide. For instance, one section of the guide recommends establishing agreements with indigenous groups, akin to Impact Benefit Agreements in Canada, claiming that this is “mutually beneficial.” Although this may not be a “consent” policy, obtaining a formalized agreement through the processes described in the guide would be quite challenging without the community’s implicit consent.
Notably, the guide emphasizes the value of community involvement in and co-design of baseline studies and impact assessments, a best practice also highlighted in Foley Hoag’s recent report, Implementing a Corporate Free, Prior, and Informed Consent Policy: Benefits and Challenges. In addition, it offers numerous examples of companies that have helped indigenous communities take advantage of training and employment opportunities, as well as companies that have worked to ensure that development funds are allocated in accordance with community priorities. The guide places significant importance on cultural impacts, rather than only emphasizing physical or economic impacts on indigenous people, and also highlights the need for cultural heritage assessments and management plans. In short, the new guide is a significant addition to the practical guidance available to mining and other extractive companies regarding indigenous peoples.