Indigenous Peoples: Position Statement

Indigenous Peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live[i], and they can hold a number of defining characteristics. As traditional owners and custodians of their lands and territories, Indigenous Peoples are recognised for managing 25 percent of the Earth’s land surface which coincides with areas that hold 80 percent of the planet’s biodiversity and 40 percent of the world’s terrestrial protected areas and ecologically intact landscapes.[ii] Despite this, Indigenous Peoples make up 15 percent of the world’s poor[iii], and are deeply impacted by the long-term consequences of historic injustices including occupation, and the dispossession of their lands, territories and resources.

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Notes

i. https://www.un.org/development/desa/indigenouspeoples/about-us.html

ii. https://www.un.org/development/desa/dpad/publication/un-desa-policy-brief-101-challenges-and-opportunities-for-indigenous-peoples-sustainability/

iii. https://www.un.org/development/desa/indigenouspeoples/mandated-areas1/economic-and-social-development.html

In some countries, the term ‘Indigenous’ may be controversial and local terms may be used that are broadly equivalent (i.e., Tribal Peoples, First Peoples, Native Peoples, Aboriginal, First Nations, Traditional Owners, Customary Landowners, etc.). In other situations, there may be no, or ambiguous, recognition of Indigenous Peoples by States, or the term may have negative associations that discourage people from acknowledging Indigenous identity. Irrespective of the local context, ICMM members reject any discrimination or disadvantage that may be related to culture, identity or vulnerability and will apply the principles embodied in this position statement to groups that exhibit the commonly accepted characteristics of Indigenous Peoples.

While there is not one official definition for ‘Indigenous Peoples’, ICMM recognises the definition of ’Indigenous Peoples‘ and their commonly accepted characteristics[i] as defined in article 1 of ILO 169. We also respect and utilise regional terms and, where possible, recognise and use the specific names as identified by a group, supporting self-identification. Indigenous Peoples have the right to determine their own identity or membership in accordance with their customs and traditions.[ii]

Indigenous Peoples can share some or all of the following characteristics:

• Self-identification as Indigenous.
• Historical continuity with pre-colonial and/or pre-settler societies.
• A common experience of occupation, colonialism and oppression.
• Occupation of or a strong link to specific lands and territories.
• Distinct social, economic, and political systems.
• Distinct language, culture and beliefs that vary from dominant sectors of society.
• Resolve to maintain and reproduce their ancestral environments and distinctive identities.

These general criteria of ‘Indigenous Peoples’ are purposely inclusive and are thus meant to encompass the diversity of worldwide Indigenous Peoples’ experiences, while still separating ‘Indigenous Peoples’ from other national minorities and local communities as unique and distinct groups and providing a basis for the kinds of rights that they claim.

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Notes

i. Study of the Problem of Discrimination Against Indigenous Populations: Final report submitted by the Special Rapporteur, Mr. José Martínez Cobo. 30 July 1981.

ii. UNDRIP Article 33.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an advanced and comprehensive international instrument detailing the individual and collective rights of Indigenous Peoples, including those affirmed in treaties, agreements and other constructive arrangements with States. It establishes a universal framework of minimum standards for the survival, dignity and wellbeing of Indigenous Peoples. The UNGP, to which all ICMM members are committed, set out companies’ responsibility to respect human rights and specifically require companies to respect all internationally recognised rights. For Indigenous Peoples these are, at a minimum, the rights affirmed in UNDRIP and include, but are not limited to:

• The right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
• The right to self-determination including autonomy or self-government.
• The right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.
• The right to participate in decision-making in matters that would affect them.

Companies should develop, publish, and execute company policy commitments on respecting the rights of Indigenous Peoples as outlined in UNDRIP throughout their operating procedures and management systems. They should set out the standards of behaviour that are expected in regard to respecting Indigenous Peoples’ rights and promoting, as appropriate, Indigenous Peoples’ meaningful participation in mining and mining-related projects. The policy commitments can be stand-alone or part of an integrated or existing policy. Some countries have passed legislation or ratified other international or regional conventions for the protection of Indigenous Peoples that companies should take into account in their respective jurisdictions and as they develop and apply their policy commitments.

This commitment includes the requirement to promote awareness and education for the respect of Indigenous Peoples’ rights among company personnel, especially those that are working in regions where Indigenous Peoples are present and/or work on issues relevant to Indigenous Peoples. This may include developing and implementing cultural awareness education and training for relevant employees and contractors, scaled to their roles, and may include materials on the history, social and cultural traditions and patterns, the rights of Indigenous Peoples and the company’s responsibility to respect these rights as set out in its policy commitments. Companies should provide appropriate inter-cultural dialogue training to personnel engaging with Indigenous Peoples so that they are capable of engaging respectfully with Indigenous Peoples.

Companies can, where they see this as appropriate and aligned to their common interests, take actions that support reconciliation with Indigenous Peoples. Such actions might include initiatives that contribute to improved social, economic and/or environmental outcomes. They also might include taking actions to support efforts that promote the advancement of Indigenous People rights and helping to level power imbalances, thereby creating fairer conditions for their equitable participation. This might also include actions that contribute to Indigenous-led and/or government-led reconciliation initiatives.

Companies are required to conduct due diligence such as social, human rights and environmental baseline analyses and impact assessments early and in advance of any project activities to identify those Indigenous Peoples who may be impacted by a project as well as the nature and extent of potential adverse impacts on Indigenous Peoples’ rights. Reviewing or conducting comprehensive and appropriate mapping of lands, territories and resources and their physical or cultural usage by Indigenous Peoples is an important step in the due diligence process to identify all potentially affected Indigenous Peoples, including those that may be displaced or Peoples in vulnerable situations in the area of a proposed project or activity. Companies should engage with Indigenous Peoples, and/or relevant State authorities and other responsible agencies, to understand Indigenous usage of lands, territories and resources, potential title or land claims and relevant Indigenous cultural patterns. If a project has the potential to impact Indigenous Peoples living in voluntary isolation or initial contact, a company’s due diligence activities should carefully consider the potential impacts to such Peoples, and respect for their rights given their desire to live in isolation.

As outlined by the UNGP, the due diligence process should include assessing actual and potential adverse impacts to Indigenous Peoples’ rights, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed. It should cover potential adverse impacts that may be caused or contributed to by a company’s activities or may be directly linked to its operations, products or services by its business relationships.

Due diligence should be ongoing throughout a project’s lifecycle, recognising that the risks to Indigenous Peoples’ rights may change over time as the company’s operations and operating context evolves. Where operations have resulted in ongoing impacts to Indigenous Peoples’ rights from past activities, companies should carry out due diligence to address ongoing impacts.

Helpful guidance on human rights due diligence is found in ICMM's Human Rights Due Diligence Guidance, 2023.

Companies should adhere to local laws and regulations relating to engagement and negotiations with Indigenous Peoples where these may exist as a basis for developing appropriate engagement processes. In defining the scope of engagement, companies should apply a principle of proportionality, such that a company’s engagement and any mitigation measures adopted (i.e., avoidance, minimisation, mitigation and remedy of adverse impacts) should seek to address anticipated impacts on the rights of Indigenous Peoples in a manner commensurate with the nature and scale of the impacts.

This commitment includes the requirement that engagement processes enable the meaningful participation of Indigenous Peoples in due diligence processes and for the good faith negotiation of any agreements. They should be consistent with Indigenous Peoples’ procedures, protocols, governance structures and decision-making processes. Engagement processes are to embody the attributes of good faith and should be co-designed, culturally appropriate and inclusive. Companies should respect Indigenous Peoples’ timelines for engagement, and support them to develop their own engagement protocols, and to engage in accordance with those protocols. Through good faith and meaningful engagement, companies will engage with transparency, equity and inclusion to avoid contributing to internal community conflict and division and respect the internal governance of these communities.

Such processes can be documented in an engagement plan. These processes should identify representatives of potentially affected Indigenous Peoples; set out agreed-upon consultation processes and protocols including preferred approaches to decision-making; describe how consensus will be demonstrated; set out reciprocal responsibilities of parties to the engagement process and describe agreed avenues of recourse in the event of disagreements or impasses occurring. Such engagement processes should define what constitutes agreement (demonstrating consent) by Indigenous Peoples to impacts on their lands or other rights.

In some instances, companies may face scenarios where Indigenous Peoples do not wish to participate in engagement over a proposed project. Without prejudice to the rights of Indigenous Peoples to withhold their agreement, the company should document the steps taken to engage with Indigenous Peoples and the rationale taken in each step. Companies will continue to respect the rights of Indigenous Peoples even when Indigenous Peoples do not wish to engage.

Companies should support robust information sharing with Indigenous Peoples to further enable meaningful engagement. Companies should also support Indigenous Peoples’ capacity for good faith negotiation on an equitable basis, through the provision of reasonable financial or other agreed-upon assistance where necessary. This can include supporting Indigenous Peoples’ capacity to engage in decision-making and agreement-making, for example by providing access to independent expert advice where appropriate, capacity building, facilitation and mediation, or involving external observers. If companies provide access to independent expert advice, they may consider the feasibility of creating independent funding mechanisms that enable Indigenous Peoples to access such capacity support through mechanisms that avoid any conflict of interest.

Agreement should be established through meaningful engagement and good faith negotiation before projects proceed, maintained and enabled by ongoing due diligence processes, and take into account changing circumstances.

The application of FPIC in relation to a company’s due diligence and agreement-making activities enables Indigenous Peoples to negotiate the conditions under which a project or activity will be designed, implemented, monitored and evaluated. As a process, FPIC also enables Indigenous Peoples to freely give or withhold their agreement, should they choose to do so. FPIC processes do not necessarily require unanimity amongst the members of an Indigenous community, and agreement may be achieved even when individuals or groups within a community explicitly disagree. Agreements with Indigenous Peoples are to be made in accordance with their own decision-making processes and representative institutions.

The agreement-making process should also respect the needs, desires and timelines of Indigenous Peoples, and the processes through which their decisions are typically made. Agreements with Indigenous Peoples can build and sustain mutually beneficial relationships between companies and Indigenous Peoples and other relevant parties and stakeholders. However, for this to occur, agreements must be fair, equitable, flexible and mutually agreed upon by both companies and affected Indigenous Peoples.

Critical cultural heritage is defined in the glossary. Accordingly, what is ‘critical’ is determined and/or recognised by international institutions or domestic regulatory or judicial authorities, and companies should not proceed unless it is lawful to do so. Where there is clear international recognition or domestic legal recognition of critical cultural heritage, and significant impacts are unavoidable, companies should follow the process set out within this position statement, of human rights due diligence, meaningful engagement and obtaining an agreement.

Where it is ambiguous and/or the company and potentially affected Indigenous Peoples disagree as to whether there is international recognition or domestic legal recognition of critical cultural heritage, or there are potential significant impacts, and assuming the process outlined within this position statement does not result in an agreement, companies will follow the requirements set out in Commitment 5. This may include, for example, seeking an advisory opinion from a neutral, mutually agreed expert.

Helpful guidance on FPIC is found in ICMM's Good Practice Guide: Indigenous Peoples and Mining, Second Edition, 2015, Section 2.5 Free, prior and informed consent (FPIC) and Chapter 4, Agreements. Further guidance on the application of FPIC is provided by the International Finance Corporation's Guidance Note 7, Indigenous Peoples, 2012, GN 28-34 and the UN Global Compact's Business Reference Guide to the UN Declaration on the Rights of Indigenous Peoples. Guidance on meaningful engagement is found in the Global Industry Standard on Tailings Management, 2020.

Companies should develop a policy or approach that outlines appropriate steps to take and how they will manage impacts in those circumstances in which Indigenous Peoples do not provide their agreement to anticipated impacts to their land or other rights. In such circumstances, steps may include renewed or expanded efforts for dialogue with Indigenous Peoples and relevant parties to resolve differences of opinion. This can entail seeking mediation or advice from mutually acceptable parties, and/or pursuing processes that have been designed by States for such situations, and/or escalating issues to the highest relevant corporate-level decision-makers (i.e., senior management, executive and Board-level) for a decision on how the activity should progress. Companies may decide they should reconsider the scope of an activity given its potential for adverse impacts or decide whether they ought to remain involved with a project and consider the decision to responsibly disengage.

There are also situations in which States might determine that a project should be authorised even without consent and specify the conditions that should apply. However, international human rights standards establish that such a determination can be made only after the State has made genuine attempts to obtain consent[i], and the determination must adhere to established criteria of necessity and proportionality for permissible limitations on Indigenous Peoples’ rights, as reflected in UNDRIP.[ii]

Regardless of State approval, any decision by companies to proceed with a project without agreement demonstrating consent should be preceded by a due diligence process and consultation with internal and external experts. Where companies are not able to obtain agreement from affected Indigenous Peoples over impacts to their rights, especially in relation to relocation from their lands or impacts to their critical cultural heritage, companies should exhaust options and measures to explore feasible alternatives to project design and avoid risks that would threaten the cultural or physical survival of Indigenous Peoples.

In any event, for a company to proceed with a project or activities without the agreement of affected Indigenous Peoples over impacts carries risks that companies should fully evaluate according to established policies and procedures. These risks may include operational disruption and reputational impacts and potential for conflict associated with proceeding in the face of community opposition. Where due diligence indicates that it is more likely that Indigenous Peoples will be negatively affected and the impacts are more likely to be significant, the risks become more pronounced. Avoiding such risks is critical to determining the future quality of relations with affected Indigenous Peoples, the company’s social licence to operate and ultimately, the company’s capacity to conform with its responsibility to respect Indigenous Peoples’ rights.

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Notes

i. See Ågren v. Sweden, CERD/C/102/D/54/2013, para. 6.20.

ii. UNDRIP Article 46.2.

Companies are required to demonstrate they have undertaken meaningful engagement with Indigenous Peoples to understand their aspirations for social and economic development and taken steps to progress suitable opportunities for benefit sharing that enable mutually beneficial outcomes beyond the life of operations.

The development of benefit sharing mechanisms should be equitable, transparent and participatory of affected Indigenous Peoples, and investment decisions should be aligned to community priorities. Where necessary, companies should encourage third-party technical support to address any capacity gaps in identifying or progressing suitable opportunities. Subsets of Indigenous Peoples, especially women, children and young people, elders, people with disabilities, and others in vulnerable situations should be included in the design and/or implementation of socio-economic development and social investment projects.

Meaningful engagement on benefit sharing with Indigenous Peoples could include the consideration of opportunities for Indigenous Peoples’ commercial participation in projects and their increased participation in supply chains and value chains. Such engagement can also consider economic diversification programmes and regional development opportunities in collaboration with Indigenous Peoples, States, and other relevant parties or stakeholders with a view to reducing dependency and achieving long-term sustainability.

Companies should include Indigenous Peoples, where they wish to participate, in the execution of environmental initiatives and post-closure socio-economic development that seek to benefit Indigenous Peoples and support the rehabilitation of valued environmental components and their traditional uses by Indigenous Peoples.

Companies can, where appropriate, work in partnership with Indigenous Peoples' and other key stakeholders that have experience, trusted access to affected Peoples, and resources to help the company deliver its commitments to share benefits. 

Members have committed to reporting against ICMM’s Social and Economic Reporting Framework. The framework requires members to report on ‘Employment’ & ‘Procurement’ metrics and to disaggregate data, as far as is possible, by gender, ethnicity, and other areas of diversity. Indigenous employment and procurement targets and progress can be reported under this framework.

Indigenous Peoples can play an important role in the stewardship and protection of the environment and resources, and accordingly make a valuable contribution in balancing the benefits of natural resource development with potential adverse impacts to the environment.

Incorporating such Indigenous knowledge, worldviews and practices can support members to conduct and implement more effective impact assessments, due diligence, environmental and social investment programmes and closure planning and execution. It is important to meaningfully engage with Indigenous Peoples to understand their traditional knowledge about the environment, how they use and manage it, and the valued environmental components that are important to them and that are critical for exercising their rights. By incorporating this traditional knowledge into impact assessments and other processes, companies can develop more comprehensive assessments that better respect the rights of Indigenous Peoples. Co-designing the scopes of these processes and programmes and resultant management measures can support more effective identification and avoidance or reduction of impacts. Members should share the findings or outcomes of such processes and programmes with affected Indigenous Peoples to enable transparency and may also consider conducting joint assessments or Indigenous-led assessments.

Planning for closure is also an integral opportunity for companies to collaborate with Indigenous Peoples and incorporate their knowledge when making decisions related to the design and implementation of closure planning and execution, in order to achieve post-closure and future land use plans that align to Indigenous Peoples’ vision for the land after mine closure. By engaging early on matters related to closure, companies can align their closure plans with Indigenous values and knowledge and avoid potential negative impacts. Helpful guidance on post-closure development can be found in ICMM’s Integrated Mine Closure: Good Practice Guide.

Companies should respect that Indigenous Peoples have the right to maintain, control and protect their Indigenous knowledge and knowledge systems and respect that some knowledge may involve spiritual practices and beliefs, where the sharing of that information is highly sensitive. Companies should respect and support Indigenous cultural and intellectual property and obtain permission if collecting, storing, accessing, using and/or reusing the cultural and intellectual information and knowledge of Indigenous Peoples. Companies should include consideration for the parameters, if applicable, by which such information and property can be returned when a project or activity ends. Companies should also offer third-party independent support to enable Indigenous Peoples to use their intellectual property rights to expand and maintain culture, where appropriate.

Companies should develop cultural heritage management plans with affected Indigenous Peoples, where such adverse impacts to cultural heritage are identified, as well as any associated control and mitigation measures. Such plans shall be informed through ongoing engagement that remains adaptive and incorporates new information as it becomes known. Companies can also support the promotion, revival and celebration of cultural heritage, where agreed upon by Indigenous Peoples, by implementing awareness and education initiatives, participating in festivals and events, supporting language preservation endeavours, and other efforts.

Helpful guidance on cultural heritage management is found in ICMM's Good Practice Guide: Indigenous Peoples and Mining, Second Edition, 2015, Part 1, Chapter 3, Managing Impacts.

In keeping with this commitment, companies are to make available an adequate grievance procedure, which may include (as per the UNGP) non-judicial processes through which alleged business-related human rights abuses can be raised and remediation can be sought. Grievance procedures should be designed with the involvement of concerned Indigenous Peoples. Remediation refers to both the processes of providing redress for an infringement of rights and the substantive outcomes that can counteract or make good the infringement. Outcomes may take a range of forms – for example apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions.

Helpful guidance on establishing effective grievance mechanisms is found in ICMM's Handling and Resolving Local-level Concerns and Grievances: Human Rights in the Mining and Metals Sector Guidance, 2019. Guidance on remedy and human rights due diligence is found in ICMM's Human Rights Due Diligence Guidance, 2023.