sharing in governance of extractive industries

Getting to “no” in mining and community consent

When it comes to community consultation policies, mining companies are moving in the right direction – but one thing continues to be a sticking point: the ability of communities to say “no.”

I don’t really think it’s up for debate that “no” means “no”. Unfortunately, when it comes to mining companies and indigenous communities, the jury may still be out.

These days, it’s relatively common for mining companies to discuss and make commitments to respect community and indigenous rights in the places they work around the world. And recently, the International Council on Mining and Metals (ICMM)—a mining association aiming to promote sustainability in the sector — released an update of its good practice guide on indigenous peoples and mining. ICMM represents 23 global mining companies operating in more than 800 project sites worldwide, including some heavy hitters like Glencore, BHP Billiton, Rio Tinto, and Anglo American; all of which earn tens of billions of dollars in revenue each year.

Given its composition, ICMM policy changes have the potential for considerable global reach. And in their 2013 statement, they took an important step by embracing Free, Prior, and Informed Consent (FPIC). It was important because – when effectively implemented – FPIC processes enable communities to have a real say in not only how, but whether, oil, gas, and mining projects move forward. Oxfam’s recently released Community Consent Index found that mining company commitments to FPIC have increased significantly over the last three years. ICMM’s commitment helped drive this important shift.

However, as with most policy commitments, the devil is in the details. As I blogged when the 2013 policy came out, it left a few critical questions on FPIC unanswered – namely, how companies should handle situations where communities choose to withhold their consent. These grey areas in the first policy made me hopeful that this guidance might clear things up.

There is a lot to like about ICMM’s new FPIC guidance. For example, it underscores the importance of starting community engagement as early as possible, and of “reaching agreement [with indigenous communities] on how consent will be demonstrated.” It advises companies to seek the views of women and youth in circumstances where traditional decision-making structures exclude these voices, and recommends the use of gender impact assessment to understand how projects may impact men and women differently. The guide also includes several useful case studies, including cases on FPIC implementation in Colombia and Suriname (although these are clearly presented from the company perspective).

Disappointingly however, the guidance remains silent on the most fundamental criteria for achieving true consent — respect for a community’s decision to say “no” to mining. ICMM’s statement acknowledges that FPIC processes must enable indigenous peoples to “give or withhold their consent to a project,” but rather than requiring companies to obtain consent it requires them to “work to” obtain consent and then determine themselves “whether they ought to remain involved with a project.”

This gives companies far too much discretion, and in many ways makes the entire consultation process worth very little. If companies truly want to respect indigenous peoples’ rights, it should never be an option to proceed with a project that has not been given full free, prior and informed consent of the communities affected. As the chair of the Inter-American Commission on Human Rights Rose-Marie Belle Antoine stated earlier this year, “Yes, you have a right to say no. It’s not a question. Otherwise what is the meaning of consent?”

I had hoped ICMM’s new guidance would drive this point home, but  ICMM companies continue to hedge their bets, avoiding making a clear commitment to withdraw when communities don’t tell them what they want to hear. In such circumstances, the guidance does advise companies to consider the heightened risks of proceeding without consent—both reputational and in terms of the potential to generate social conflict. ICMM also recommends in these circumstances that companies conduct independent impact assessments to ensure that “the project will not breach the rights and interests of Indigenous Peoples.”

But here’s the problem: how could any mining or oil project that proceeds without indigenous peoples’ consent not violate their rights?

As former Special Rapporteur on the Rights of Indigenous Peoples James Anaya explained in his 2013 report on indigenous peoples and extractive industries, the scope of permissible exceptions to applying FPIC is extremely narrow for oil and mining projects. Any limitations on indigenous rights must be “strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for the meeting the just and most compelling requirements of a democratic society.” This does not sound like a mining project to me. Professor Anaya further clarifies that land expropriation for a “public purpose” does not suffice as justification for limiting these rights, noting that “a valid public purpose is not found in mere commercial interests or revenue-raising objectives.”

So, while ICMM missed a big opportunity to better define consent in their policy, there is still space for companies to get it right in practice. Hopefully they will heed the positive messages the ICMM lays out around early and participatory FPIC processes and make it to the point themselves where “no” truly means “no”.

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Comment by Emily Greenspan on December 8, 2015 at 23:13

Thanks for sharing your comments. Picking up on the issues that Jodi raises, I’m in full agreement that participatory decision-making processes do not always proceed smoothly and result in unanimous agreement. Nevertheless, communities manage to work through these challenges. Note that FPIC does not require that every individual member of a community agree with the decision that a community makes. After internal discussion and debate, some of the communities that Oxfam and our partners support in different parts of the world have decided that oil or mining projects should not proceed on their lands. These decisions should be respected. This will help to avoid violating the rights of indigenous peoples (who have the right to self-determination) and create an enabling environment for the projection of the human rights of all affected communities.

Also keep in mind that there is a strong business case for community consent. FPIC can be a tool to reduce social conflict and increase the legitimacy of the project in the eyes of all stakeholders. Ultimately if a project developer is unable to secure the consent of the local community they increase the risks to their project, which can have a significant impact on their bottom line (see Costs of Company-Community Conflict in the Extractive Sector).

To Paul’s comment on bringing States on board, you may be interested in a recent report produced by Oxfam and the Due Process of Law Foundation looking at consultation laws in Latin America, examining implementation challenges, and proposing recommendations for States and other actors. The report is posted here (executive summary in English will be available in the next few weeks).

Comment by Jodi Liss on December 8, 2015 at 13:16

Although I respect the sentiment behind "no means no", I have found that things are not always so absolute in the wide world. Sometimes a no on an extractive project means no, but sometimes it means other things like "not under these circumstances or these terms" or "not with this company" or there are political reasons or there is division within the community and some say yes and others no. It is not so clear cut in every case.

Comment by Paul Cisneros on December 8, 2015 at 1:01

Hello Emily, very interesting piece, thanks for sharing it in GOXI.

You raise valid points about companies needing clearer guidelines for implementation. By looking at the Latin American experience with FPIC I think that one incentive companies have to not care enough about FPIC is the lack of local regulations on the matter. Most countries in the region with large indigenous populations have internalized the FPCI principles on paper, but lack specific regulations and institutions to implement them. Also, when regulations exist and are not respected, there is often a lack legal force to enforce them (e.g. courts are not independent). It is great that the industry is being proactive on this issue but I wonder if there is any form of market incentive that could bring States closer into supporting these innovations?

Comment by Eric Joyce on December 7, 2015 at 20:08

Emily, this is a great post in lot of ways. it's properly illuminating and grippingly full of interesting detail. Sorry to sound like a minor associate professor somewhere, but I really found your writing compelling.

I have two thoughts to chip in - not to disagree, actually, but you got me thinking about the issue of local consent and in particular where indigenous populations are involved. 

One thought is that in the US or UK, and most developed nations I can think of, a big project with national revenue or other significance - new airport, big mining project, nuclear power station - would go through local planning bodies but through appeal would always end up with the national (or sometimes state - in Scotland, too, Scottish) government. Revenue raising, when it might involve a fair proportion of national earnings (like a big project in a small African state - Simandou for example) - can't really be have 'mere' applied to it. That said, I think you cover that with the James Anaya quote. There's always going to have to be a balance applied between local and national interest. 

My other point is really just an extension of your really interesting discussion of what local interest is and how it can be judged. I guess where there are local democracies then they should be allowed to operate, but where there isn't it's terribly important that projects can show how they benefit local people. Often, they can but they're not challenged enough, I think. That's an economic argument, of course, and often these things are left to large human rights and environmental groups - who often put local economic interests behind their own organisations international objectives. 

That's my tuppence-worth. Thanks again for your piece. eric


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