Firstly, a big thank you to Emily Greenspan at Oxfam for giving profile in her blog to ICMM’s recently updated Indigenous Peoples and Mining Good Practice Guide. I also appreciate Oxfam’s recognition of the important shift that ICMM’s 2013 Indigenous Peoples and Mining Position Statement has helped to drive in increasing mining company commitments to Free, Prior and Informed Consent. I did however want to briefly reflect on the central thread that runs through Emily’s blog about the need for mining companies to accept that “no” truly means “no”. I fully accept Emily’s assertion that “no” should always mean “no” in the realm of interpersonal relationships and individual choices. In matters of public policy and development decision-making, however, we live in a more complex world.
The reality is that governments – in balancing the rights and interests of different groups in society – are tasked with making difficult choices that may limit the rights of individuals or groups: so governments in the first instance, not companies, get to decide whether an Indigenous communities’ right to say “no” is unequivocal. Where States delegate decision-making autonomy over natural resource developments to Indigenous Peoples, if consent is not given then “no” clearly means “no”. However, in other circumstances if a government determines that a mining project should proceed where consent is not forthcoming, companies face a difficult choice.
As James Anaya (former Special Rapporteur on the Rights of Indigenous) reasoned in his 2013 report to the Human Rights Council that Emily referenced, in taking such decisions States remains bound to respect and protect the rights of indigenous peoples and must ensure that other applicable safeguards are implemented as well. ICMM’s guidance also makes it clear that any decision by companies to proceed with a project in the absence of consent should be preceded by companies own independent assessment to ensure they are satisfied the project will not breach the rights and interests of Indigenous Peoples (see page 86).
As Emily observes, ICMM’s statement acknowledges that FPIC processes must enable indigenous peoples to “give or withhold their consent to a project”. Rather than miss the opportunity to better define consent in our policy as Emily has suggested, I would maintain that we have given guidance on how companies should strive to achieve consent, and how to navigate the range of decision-making scenarios that may arise if consent is not forthcoming.
Emily rightly states that where consent is not forthcoming, it is for individual members to determine whether they ought to remain involved with a project. Over two years since the adoption of the ICMM policy, many of our members have actively pursued consent processes with host Indigenous communities. To date, none have faced the difficult choice of how to proceed where consent has not been given.
Aidan Davy, Deputy President, ICMM