8: General guiding principles and recommendations to mining
companies, indigenous peoples, states, the financial sector,
civil society organizations and the international community
General principles to guide corporate and other actors
1. Contemporary international human rights law and other standards constitute a framework of
obligations which establishes the minimum acceptable standards of conduct for all actors,
including States and corporations in the context of projects within indigenous territories. The
UN Declaration on the Rights of Indigenous Peoples (henceforth UN Declaration) is the clearest
expression of indigenous peoples’ rights and encapsulates the international obligations of all
actors which impact on indigenous peoples’ enjoyment of those rights. Recognition of the rights
affirmed in the UN Declaration, and the responsibilities and duties flowing from them, provides
the basis for an emerging framework for corporate action in indigenous territories. However,
implementation of this framework is in its infancy. The rapid acceptance and implementation of
the provisions of the UN Declaration is necessary for the protection of indigenous peoples’ rights
and the realization of a stable environment in which negotiations, potentially leading to secure
investments, can occur. Such an environment will benefit all parties.
2. Collective acknowledgement by the mining industry and States of the legacy of mining in
indigenous peoples’ territories is fundamental to realigning its relationship with indigenous
peoples. This legacy consists of abandoned sites and disastrous human rights and environmental
records. In accordance with the responsibilities of States and corporations and the international
community processes of reconciliation and avenues of compensation and redress should be
established and implemented.
3. Improvements in corporate and State practice are absolutely essential. For these to be realized
adequate education and training on indigenous rights is necessary for all actors, including
indigenous communities, employees and contractors of mining companies, central and local
government officials, legal practitioners, and members of the police, army and security forces.
4. Effective independent and credible monitoring, as well as readily accessible grievance and redress
mechanisms, are necessary for the realization of a climate in which good faith engagements are
possible.
5. Operationalization of FPIC is dependent on a genuine acknowledgment of the right of all
indigenous peoples to define their own development paths. This necessitates respect for their
rights to be informed and consulted, and to determine under what conditions, investment and
development projects are allowed to proceed within their territories. This includes the right to
accept or reject a particular proposal.
6. As part of their right to give or withhold consent to project it is an essential right of indigenous
communities to be able to consider project proposals and negotiate the contractual conditions
to which they do or do not consent. Corporations that seek to develop a mining project will likely
invest large amounts of resources in its development. It is therefore a reasonable expectation
by companies that, if they abide by their contractual obligations, their mounting investment is
protected from arbitrary expropriation or unilaterally imposed supplementary provisions. Entering
into formal contractual agreements as part of the provision of FPIC, which include a functioning
grievance mechanism, provides a way to protect both the indigenous and corporate party.
7. The requirement for “informed consent” implies that for consent to be given, an informed
understanding of the potential impacts is required. The requirement therefore must apply at
each stage in a project life-cycle, from concession application through to project closure. The
human rights framework stipulates that consent is required prior to concession issuance and
subsequently for major activities such as exploration and exploitation and any substantial
changes to project plans which have material impacts on indigenous peoples’ rights. Clarity and
agreement is required in relation to the precise points at which consent is to be obtained, and
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Making Free, Prior and Informed Consent a Reality