Report asking for Free Prior Informed Consent to become a reality launched in LondonPublished by MAC on 2013-05-07
Source: Statement (2013-05-03)
Report asking for Free Prior Informed Consent to become a reality launched in London
Indigenous Peoples Links (PIPLinks) Press release
2 May 2013
There is now a growing acceptance of the requirement for indigenous peoples' Free Prior Informed Consent (FPIC) in many industries, including the extractive industries. This has been reflected by its incorporation into policies of an increasing number of mining companies, although admittedly sometimes in a more diluted form.
As the need for FPIC is introduced into state law, and made a requirement of financing, companies are increasingly struggling with how to implement FPIC. Yet, for indigenous peoples it is clear that their right to give or withhold FPIC should be seen in a context of them as rights-holders, rather than just yet another stake-holder. Therefore, there seemed to be a need for research to act as a basis for constructing a common ground with regard to the requirement for indigenous peoples' FPIC.
The report, Making Free Prior & Informed Consent a Reality: Indigenous Peoples and the Extractive Sector seeks to do just that. Authored by Cathal Doyle and Jill Carino, it advocates for multinational mining companies, the investor community, and state actors to understand the importance of the FPIC principle from ethical, sustainability and economic perspectives. Fundamentally it argues that it is essential to understand FPIC from an indigenous peoples' rights-based perspective in order to effectively implement it in a manner which is in accordance with indigenous peoples' exercising their right to self-determination.
The report was launched at Middlesex University in London on 2nd May, involving a round-table discussion of the report's contents by indigenous peoples, representatives of the mining industry and invited experts. This was followed by a public launch, at which a number of the indigenous peoples spoke about what FPIC meant to them, following on from a keynote address by the UN Special Rapporteur on Indigenous Peoples, Professor James Anaya. Professor Anaya stressed the importance of FPIC as part of a bundle of rights, and yet how, so far, its implementation was often far from adequate. He noted how both the round-table, and the report itself, were an excellent push forward in the implementation of FPIC.
Anne Marie Sam of the Nak'azdli First Nation in Canada stressed what the concept meant to her. Her elders had noted that the "souls of our ancestors are on the land. You take care of the land and the land takes care of you. Our identity comes from the land". She joined other speakers in passionately advocating for their right to decide their own fate. They stressed the growing importance of indigenous peoples organising, so that they could assert these rights. They also spoke to the emerging theme of indigenous communities defining their own culturally appropriate guidelines for implementing FPIC, which is reviewed - with the aid of case studies - in the report.
The research was conducted on behalf of a consortium of organisations, including Indigenous Peoples Links (PIPLinks), Ecumenical Council for Corporate Responsibility (ECCR), and the Middlesex University School of Law, but backed by a larger number of indigenous advisors and organisations.
It is part of a project which aims to promote the human rights of indigenous peoples by persuading leading multinational mining companies to abide by their obligations under international human rights standards. Specifically, the project aims to achieve sector-wide adoption of FPIC as the global mining industry standard, in order to safeguard the rights of indigenous peoples faced with mining operations in their territories.
The report can be viewed at: http://www.piplinks.org/report%3A-making-free-prior-%2526amp%3B-informed-consent-reality-indigenous-peoples-and-extractive-sector (along with an extract of the conclusions and recommendations, together with a Word version of a Spanish translation of the extract).
Photos of the public launch are available on request
Andy Whitmore, Indigenous Peoples Links (PIPLinks)
Mobile: +44 775 439 5597
Indigenous Peoples, the Extractives Industry, and Free, Prior, Informed Consent
3 May 2013
Last night was the launch of a new report on making free, prior and consent a reality for indigenous peoples, authored by Cathal Doyle and Jill Cariño, of Middlesex University law school and Philippine Task Force for Indigenous Peoples Rights respectively, and sponsored by PIPLinks, Middlesex University Law School and ECCR. Indigenous peoples have long been denied these rights, especially by the extractives industry, but 6 years after the UN Declaration on the Rights of Indigenous Peoples (DRIP) and 2 years after the UN Guiding Principles on Business and Human Rights things are changing, albeit unevenly.
In his keynote UN Special Rapporteur James Anaya described the report as "a very important contribution to implementing FPIC and moving forward the debate". Certainly a lot more movement is needed, but a lot of progress has also been made since indigenous peoples began organising at a transnational level, especially through the UN Working Group on Indigenous Peoples in the 1980s (subsequently replaced by the Permanent Forum on Indigenous Issues; Andrea Muehlebach has written an excellent article on the Working Groups' cultural politics). I'm inclined to agree with Anaya, that we're at an important turning point in the treatment of indigenous peoples: whereas previously the central issue for indigenous peoples was securing rights to self-determination in relation to their lands, territories and resources, increasingly the central issue is designing and implementing policies and mechanisms that will secure these rights in detailed practice. Certainly the devil is always in the detail, and drawing out the differing emphases in the perspectives of indigenous peoples and multinational corporations and therewith the gap between their respective concerns is a key purpose of the report. But the report is also clear on two points. First, indigenous peoples' right to self-determination is not in itself complicated. It is affirmed by all the major international human rights covenants and responsible bodies and clearly requires that prior consent from indigenous peoples is required before any utility is derived from their lands, territories and resources. Second, the extractives industry is well aware of these facts and by and large is seriously and substantively engaging their responsibility to respect these rights. ICMM, IPIECA and other corporate membership bodies are grappling with how to comply with the clear (and ever-more closely scrutinised) requirements of law, although as the report's authors make clear, they have serious legacy issues.
Which is where the details become important, and I commend the authors for consulting companies to accurately convey their perspectives. As Doyle explained in his remarks last night, the fact that the report could include consultations with such heavy-hitters as Rio Tinto, Xstrata, or De Beers says something of the distance travelled in the last decade and underlines Anaya's point about the extent of the "turn" in the treatment of indigenous peoples. Yet the report is also clear that when it comes to quantifying the impacts of proposed extractive projects and establishing the knowledge-base on which FPIC decisions are made, indigenous peoples are the experts and their perspectives and methodologies must be taken seriously.
So it was appropriate that the launch consisted mainly of indigenous representatives giving their perspectives on how FPIC has (or more often has not) worked for them in their respective contexts. Anne Marie Sam, a member of the Lusilyoo (frog) clan from the Nak'azdli First Nation in British Columbia, recounted the disastrous consultations around the Mount Milligan gold and copper mine. After the Lusilyoo countered the mining company's claim to be expert assessors with their own assessment methodology, they were accused of being "greedy Indians" and of "asking too many questions". In the end the miners obtained consent from another clan, had this deemed sufficient, and the project is underway, albeit at enormous cost and negligible local benefit. (Sam has written a short account of the process here (download); more background is here and here). The key lesson drawn by First Nations was that focussing on external processes (ESIAs etc) can distract from working on internal processes like building community cohesion and consensus. Even where there is internal disagreement, local communities usually can agree on the importance of protecting the land.
Brian Wyatt of the National Native Title Council in Australia highlighted two key issues variously raised by all the speakers. The first is that indigenous peoples carry the burden of proof of demonstrating connection to their lands. A legacy of the Mabo judgment, the implication is that they are responsible for demonstrating how they will be impacted if those connections are disrupted. No wonder then the arguments over IA methodologies and calculating suitable compensation. The second is that FPIC is a right belonging to indigenous peoples and also implies the right to say no. In other words, it is not merely another tool available to companies to manage and minimise their risk, a point I have raised elsewhere in relation to due diligence.
All these issues come back to the reports' starting point that FPIC directly stems from indigenous peoples' right to self-determination stated clearly in DRIP and the human rights covenants. It is not an optional extra that can be granted or withheld by prevailing interests. Once upon a time this was an activist perspective and was openly challenged by companies and governments alike. These days it is a legal principle with all the compliance requirements and non-compliance risks law entails. It is also why this report is so timely and useful, for indigenous peoples and extractives companies alike.