positions between the company perspective and that of the community leader who was interviewed
rendered it impossible to reach a mutually agreed set of observations (see section 5 below).
Newmont was referred to in interviews as another mining company with policy commitments in relation
to indigenous peoples’ FPIC. Its policy states that its resettlement plans ‘honor the principles of free
prior informed consent’ and that the necessary permits, permissions and land titles are acquired
before any exploration, mining and other related activity commences and that such permissions are
obtained honoring the principle of free prior informed consent
AngloGold Ashanti, which consolidated the gold mining interests of Anglo American, notes that
An exception [from its compliance with IFC Performance Standards] could be the issue of
Free, Prior Informed Consent (FPIC) in the Indigenous Peoples management standard. We
await the outcome of the International Council on Mining and Metals (ICMM)’s engagement
with the IFC on this issue.149
AngloGold Ashanti is however reported to have stated, in the context of seeking to mine in Colombia,
that it would ‘comply with the communities’ right to say no to a project, although no law says we have
to do it’.150 In the Oil and Gas sector Talisman has lead the way from a policy perspective, though its
implementation in practices has been questioned.151
The International Council for Mining and Metals (ICMM) is a mining industry body representing 22
of the world’s major extractive companies. While acknowledging that FPIC is ‘of particular concern
to Indigenous Peoples involved with mining’,152 its official position continues to be that ‘FPIC is
not something companies can unilaterally grant’,153 and that ‘a blanket endorsement of the right
to FPIC is not currently possible, particularly given the difficulties entailed in applying the concept
in practice.’154 ICMM members therefore only commit to consulting Indigenous Peoples in order
to seek ‘broad community support for new projects or activities’.155 The ICMM’s Council of CEOs
has however committed ICMM members to participating in fora dealing with the concept of free,
prior and informed consent,156 and has initiated a process of drafting a new position statement on
Indigenous Peoples and Mining setting out its members approach to FPIC.
Drivers for FPIC in Company policy
The De Beers representative interviewed described the incorporation of the consent requirement into
policy and practice as not only ‘the right thing to do’, and meeting ‘the gut test, where you get a warm
fuzzy feeling about your policy instead of feeling that it was not quite right’, but also as important for
their reputation by setting them aside from the pack. The focus on establishing relationship with the
communities and seeing them as potential employees and partners in the supply chain was also a
consideration.
The Anglo American representative expressed the view that “We have, historically, had relatively
limited interactions with Indigenous Peoples, so it isn’t an issue that Anglo American would naturally
seek to take a leadership stance on. However, FPIC is increasingly important for the industry, and it
is quite likely that it will become a more prominent issue for Anglo American in years to come.”
The Rio Tinto representative explained that ‘the company of choice argument’ had been quite powerful
with their board. In terms of moving the debate forward, they suggested that ‘assisting in the business
case for free prior and informed consent’ was important as ‘in the end the business case is there,
because it costs less to build projects when you have harmonious relationship with the communities,
and then further on into operations you draw on those communities as employees’. In addition to
the business case they also suggested that ‘the notion of working in conjunction with government
and communities for this’ was important, and that ultimately ‘building in community agreements into
the larger investment agreements...will work better...at least the government recognizing your right,
if not requiring you, to develop agreements with local communities’. In this regard, they noted that
‘there is still a role for both industry and civil society and media and government to make the case for
consent based process because there are still plenty of companies out there who don’t believe that’.
The Xstrata representative noted that addressing community agreements in investment agreements
‘is an emerging area that could be very beneficial’ and expressed the view that having ‘these things
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Making Free, Prior and Informed Consent a Reality