Indigenous Peoples and Mining

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This position statement sets out ICMM members’ approach to engaging with Indigenous Peoples[1] and to Free, Prior and Informed Consent (FPIC) and replaces ICMM’s 2008 Mining and Indigenous Peoples Position Statement. ICMM’s vision is for constructive relationships between mining and metals companies and Indigenous Peoples that are based on mutual respect, meaningful engagement, trust and mutual benefit. Recognising the potential vulnerability of Indigenous Peoples, the commitments in this Position Statement may be summarised as requiring members to:

In ICMM’s view, FPIC comprises a process, and an outcome. Through this process Indigenous Peoples are: (i) able to freely make decisions without coercion, intimidation or manipulation; (ii) given sufficient time to be involved in project decision making before key decisions are made and impacts occur; and (iii) fully informed about the project and its potential impacts and benefits.

The outcome is that Indigenous Peoples can give or withhold their consent to a project, through a process that strives to be consistent with their traditional decision-making processes while respecting internationally recognised human rights[2] and is based on good faith negotiation[3].

The commitments in this position statement relating to consent apply to new projects and changes to existing projects that are likely to have significant impacts on indigenous communities. The position statement will not apply retrospectively[4]. Where both Indigenous and non-Indigenous Peoples are likely to be significantly impacted, members may choose to extend the commitments embodied in this Position Statement to non-Indigenous people.

Relationship between the ICMM Mining Principles and Position Statements

All ICMM company members are expected to implement the ICMM Mining Principles as a condition of membership. Incorporating comprehensive environmental, social and governance requirements, robust site-level validation of performance expectations and credible assurance of corporate sustainability reports, ICMM’s Mining Principles seek to maximise benefits to host communities and minimise negative impacts to effectively manage societal challenges.

ICMM principles of particular relevance to Indigenous Peoples and project decision making are:

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HUMAN RIGHTS

Respect human rights and the interests, cultures, customs and values of employees and others affected by our activities.

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ENVIRONMENTAL PERFORMANCE

Pursue continual improvement in environmental performance issues, such as water stewardship, energy use and climate change.

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SOCIAL PERFORMANCE

Pursue continual improvement in social performance and contribute to the social, economic and institutional development of host countries and communities.

Since 2003, Position Statements have been developed to clearly articulate member commitments on a number of critical industry challenges. Position Statements are endorsed by the ICMM Council and include specific commitments that members must implement, alongside the Performance Expectations.

Recognition statements

ICMM members recognise that:

Commitments

In addition to existing commitments under the ICMM Mining Principles, ICMM company members commit to:

  1. Engage with potentially impacted Indigenous Peoples with the objectives of: (i) ensuring that the development of mining and metals projects fosters respect for the rights, interests, aspirations, culture and natural resource-based livelihoods of Indigenous Peoples; (ii) designing projects to avoid adverse impacts and minimising, managing or compensating for unavoidable residual impacts; and (iii) ensuring sustainable benefits and opportunities for Indigenous Peoples through the development of mining and metals projects.
  2. Understand and respect the rights, interests and perspectives of Indigenous Peoples regarding a project and its potential impacts. Social and environmental impact assessments or other social baseline analyses will be undertaken to identify those who may be impacted by a project as well as the nature and extent of potential impacts on Indigenous Peoples and any other potentially impacted communities. The conduct of such studies should be participatory and inclusive to help build broad cross-cultural understanding between companies and communities and in support of the objectives described in commitment 1 above.
  3. 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. Where required, support should be provided to build community capacity for good faith negotiation on an equitable basis. These processes should strive to be consistent with Indigenous Peoples’ decision-making processes and reflect internationally accepted human rights, and be commensurate with the scale of the potential impacts and vulnerability of impacted communities. The processes should embody the attributes of good faith negotiation and be documented in a plan that identifies representatives of potentially impacted indigenous communities and government, agreed consultation processes and protocols, reciprocal responsibilities of parties to the engagement process and agreed avenues of recourse in the event of disagreements or impasses occurring (see commitment 6 below). The plan should also define what would constitute consent from indigenous communities that may be significantly impacted. Agreed engagement and consultation processes should be applied in collaboration with potentially impacted indigenous communities, in a manner that ensures their meaningful participation in decision making.
  4. Work to obtain the consent of indigenous communities for new projects (and changes to existing projects) that are located on lands traditionally owned by or under customary use of Indigenous Peoples and are likely to have significant adverse impacts on Indigenous Peoples, including where relocation of Indigenous Peoples and/or significant adverse impacts on critical cultural heritage[9] are likely to occur[10]. Consent processes should focus on reaching agreement on the basis for which a project (or changes to existing projects) should proceed. These processes should neither confer veto rights to individuals or sub-groups nor require unanimous support from potentially impacted Indigenous Peoples (unless legally mandated). Consent processes should not require companies to agree to aspects not under their control.
  5. Collaborate with the responsible authorities to achieve outcomes consistent with the commitments in this position statement, in situations where government is responsible for managing Indigenous Peoples’ interests in a way that limits company involvement. Where a host government requires members to follow processes that have been designed to achieve the outcomes sought through this position statement, ICMM members will not be expected to establish parallel processes.
  6. Address the likelihood that differences of opinion will arise, which in some cases may lead to setbacks or delays in reaching a negotiated agreementin good faith. Companies and potentially impacted indigenous communities should agree on reasonable tests or avenues of recourse at the outset, to be applied where differences of opinion arise. This might include seeking mediation or advice from mutually acceptable parties. Where commitment 4 applies and consent is not forthcoming despite the best efforts of all parties, in balancing the rights and interests of Indigenous Peoples with the wider population, government might determine that a project should proceed and specify the conditions that should apply. In such circumstances, ICMM members will determine whether they ought to remain involved with a project.

Future ICMM work

ICMM commits to continued engagement with Indigenous Peoples and their representatives and will continue to develop approaches relating to the interests and concerns of Indigenous Peoples. Among the elements of work currently planned or anticipated for the next few years are:

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 1. As defined in article 1 of the International Labour Organization’s Indigenous and Tribal Peoples Convention (ILO 169).

2. The UN Guiding Principles on Business and Human Rights outlines the responsibility of business to ‘avoid infringing on the rights of others and to address adverse impacts with which they are involved’.

3. This involves all parties being willing to: (i) engage in negotiation and to meet at reasonable times and frequency; (ii) provide information needed for informed negotiation and explore key issues of importance; (iii) agree mutually acceptable procedures for negotiation that include sufficient time for decision making; and (iv) compromise in pursuit of reaching a formal and documented agreement. This is consistent with the attributes of good faith negotiation outlined in IFC’s Guidance Note 7 on Indigenous Peoples (paragraph GN 25).

4. Members are expected to implement the commitments in this position statement by May 2015. The commitments will not apply to projects that have started the approvals and permitting processes at the time of the adoption of the position statement.

5. As of October 2012, 22 countries had ratified ILO 169 which is legally binding in those states.

6. As stated in the UN Development Group’s Guidelines on Indigenous Peoples’ Issues (2008).

7. As expressed in the UN’s Department of Economic and Social Affairs Resource Kit on Indigenous Peoples’ Issues (2008).

8. As defined in ILO 169 and outlined in section 1.3 of ICMM’s Good Practice Guide: Indigenous Peoples and Mining (2010).

9. Includes natural areas with cultural and/or spiritual values such as sacred groves or water bodies.

10. Relocation of Indigenous Peoples and impacts on critical cultural heritage should be avoided to the extent possible.