on Chapter 2.10 on Free, Prior, Informed Consent (FPIC)

Indigenous Peoples Links (PIPLinks) and Middlesex University Business School would like to submit the following comments on the draft IRMA Standard for Responsible Mining in the spirit of constructive criticism, focussing on the area of most concern to us which is chapter 2.10 on Free, Prior, Informed Consent (FPIC).

First, we would like to congratulate the Initiative for Responsible Mining Assurance (IRMA) for both affirming the central importance of FPIC in relation to ensuring respect for indigenous peoples’ rights, and for the practical stance it takes in relation to the implementation and verification of FPIC.

One point we would note is that the chapter could have been focussed more broadly on the rights of indigenous peoples, rather than just FPIC, which as the chapter notes is in part “a mechanism to ensure that their rights and interests will be respected”. However, given the timing and the practical focus of IRMA this is more of an observation for future consideration than a suggestion for change to the present standard.

The initial background section is also to be commended for its focus on a rights based approach, particularly noting the centrality of the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP) to the normative framework of those rights. We would, however, recommend that given its relevance to mining and FPIC a reference to article 20 (1) of the UNDRIP should be included among the rights listed. That article states:
“Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development”.

This, together with the right to self-determination under article 3, implies a right to self-determined livelihoods. This is also reinforced by the rights of indigenous peoples to their traditional livelihoods and occupations under the widely ratified ILO Convention 111 and the right of all peoples to subsistence as a core element of their right to self-determination. The introduction could note that it is vital that corporations do not impinge on these livelihood and subsistence rights without consent and the provision for culturally appropriate alternatives and adequate compensation.

One general point is that there is no requirement under Chapter 2.10 for the operating company to develop “a policy that includes an explicit acknowledgement of the corporate owner’s responsibility to respect FPIC and/or indigenous rights” as there is in the section on human rights due diligence (2.4.1.1). It would be very useful for companies to do so, in order to ensure that all elements of the company were able to properly implement the provisions in Chapter 2.10, as well as providing transparency to indigenous peoples, civil society, and investors with regard to their official position with regard to FPIC.

A second general point is that it would be an improvement in the standard to clearly indicate that recognition of the indigenous right to FPIC requires a corporate understanding and respect of indigenous governance structures and decision-making processes. Although sections talk about jointly created processes and decision-making, others could intimate corporate control (e.g. 2.10.1.1c, where the corporation is potentially responsible for resourcing and capacity-building in processes). An initial statement in the background, or notes, could help dispel any potential misunderstanding, to protect all involved from the accusation that use of financial inducements could serve to manipulate outcomes.

A third general point is that dialogue and negotiations should take place within the territories of the indigenous peoples involved, and be pursued according to a publicly shared and agreed time-frame and location. This is worth stating because a recurring abuse in past “negotiations” has been the isolation of indigenous negotiators from their constituency in order to manipulate outcomes. It is also important to verify that information for the FPIC process, and any agreements reached, are in languages that the indigenous authorities and peoples will understand. (This issue is raised in the notes under defining what FPIC is, but is not explicitly stated in the verification).

The following are specific comments on the particular impact indicators and requirements:-
Add an additional high-level indicator:
“Indicator 2.10.b – The proportion of mining projects in which community decisions to withhold FPIC have been respected and the proportion of projects have not proceeded as a result.”

2.10.1.1 – With regard to the statement “prior to any land disturbance the operating company shall initiate FPIC scoping”, it is proposed it be changed to say “during the project planning and well prior to any land disturbance the operating company shall initiate FPIC scoping”. Although the prerequisite of land disturbance seems reasonable, especially if it is for exploration, it is possible for aerial reconnaissance to be disturbing to indigenous livelihoods. We noted that the ICMM in their indigenous peoples and mining position statement (May 2013) go further in noting companies should “agree on appropriate engagement and consultation processes with potentially impacted Indigenous Peoples and relevant government authorities as early as possible during project planning, to ensure the meaningful participation of Indigenous Peoples in decision making.” By definition project planning precedes land disturbance, and FPIC requires that indigenous peoples be involved in all decision making which impacts on their rights, including decisions related to exploration.

2.10.1.2 – This section contains the statement:-
“Collaboration with respect to FPIC scoping shall be gender and age inclusive, and involve a broad cross-section of members of the indigenous peoples. If there are societal norms or other barriers to participation for some groups within the indigenous peoples, operating company shall endeavor to enhance full participation by establishing separate processes or other means of inclusive engagement.”

We believe there needs to be some reference to ensuring respect for indigenous governance mechanisms in this section. Although it is both laudable and rights-compliant that the process should be “gender and age inclusive”, it is not for the company to seek to impose methods of decision-making upon indigenous peoples. To do so could be based on an erroneous assumption that decision-making processes do not involve all members of the community, and, more importantly, could be used – or seen to be used – as a mechanism for the company to undermine traditional governance structures in order achieve its own goals.

To address concerns around manipulation, the following could be included:
a) No projects can be considered to have obtained indigenous peoples’ FPIC where the indigenous governance structures have not granted this;
b) indigenous governance structures must be the initial interface for consultations;
c) the potential for falsified claims of agreement that may be confined to a limited group need to be safeguarded against through sectoral and geographically broadened interviews of verification;
d) efforts to enhance full participation must therefore be pursued with great caution, full transparency, respect for indigenous governance mechanisms, broad participation and consensus of indigenous community members and agreed third party support.

In terms of verification the following are possible criteria:-
a) transparency around the processes of consultation and their outcomes, including the decisions of indigenous governance mechanisms;
b) mechanisms for community members to contest the granting of FPIC where it is alleged this was manipulated, provided by a limited group, or obtained though processes which prevented their participation in decision-making, or was not in keeping with their customary laws and practices.

2.10.1.3 – Where indigenous peoples have made their consultation procedures with third parties publicly available these should be respected. Verification of compliance may include written records of agreement, but may also include other forms of record such as via video, and agreements in physical forms appropriate to culture.

2.10.3.1 – In the section on complaints and grievance mechanisms it is particularly important to note that for indigenous peoples these should, where they exist, be based on traditional dispute resolutions. The issue mentioned later (under 5.3.3.1. – “The company and stakeholders shall consider the option of utilizing an independent third-party mediator or another mechanism such as a traditional dispute resolution process”). However, it is particularly relevant to mention here, in chapter 2.10, given indigenous people’s general use of such mechanisms. It is also worth stating that agreements should provide for contractually binding obligations on the signatory parties, and in the case of grievance mechanisms provide an agreed escalation channel for resolution of issues which cannot be resolved through agreement between the indigenous and corporate party.

2.10.4 Add the following to the verification criteria:-
a) The frequency with which decisions not to grant FPIC are respected (at various phases of projects: project planning, land access; exploration, exploitation, project changes)
b) The extent to which proposals are modified based on indigenous peoples demands.

2.10.5 – It would be worth having verification in this section which addresses how effective any grievance mechanism is, and how empowered the community is in any process to resolve such issues, as well as the effective resolutions of disputes. It should also monitor any renewed agreements.

Indigenous peoples should participate in the definition of performance indicators for grievance mechanisms. Verification could include the extent to which indigenous peoples are satisfied with the outcomes of grievance mechanisms. It could also address a) the extent to which indigenous peoples are in a position to renegotiate agreements in cases where ownership of the mining concession is transferred to another entity and b) explicit triggers for consent to be sought in the context of changes to on-going projects.

Given that FPIC may lead to indigenous peoples accepting certain aspects of a project or modifying initial plans the note on page 71 where it says “and that indigenous peoples can approve or reject a project or activity,” could be changed to: “and that indigenous peoples can approve, partially or conditionally approve, or reject a project or activity,”.

Also in the notes section on page 71, with regard to the paragraph that starts – “For the sake of brevity, this chapter uses the term indigenous peoples …” it may also be good to refer (in notes / footnotes) to the ICMM’s Good Practice Guide (2010), which on page 5 outlines useful guidance & ICMM’s “indigenous peoples and mining position statement (May 2013) recognition statement 61 – as these are already accepted as an industry standard.

In closing we want to thank you for the opportunity to comment, and again for the commendable work that has gone into this standard. We look forward to input on future iterations.

Yours,

Andy Whitmore
Coordinator of PIPLinks

Cathal Doyle,
Research Fellow Middlesex University Business School