A related issue around group membership was raised by the Anglo American representative.
They noted that being recognized ‘as a member of the community can have implications for
access to social funds’. The company held that in these contexts the issue of membership is
related to the issue of representation with ‘disputes over who represents the community very
linked with disputes over who is a member of the community.’
e) When and how often is consent required?
The BHP Billiton representative expressed an interest in thoughts around the issue of exploration
and FPIC, and ‘at what point would FPIC be expected to apply’? This was in light of the fact that
‘exploration ranges … from desk top surveys …to satellite data, to aerial magnetic flyovers of
the region, potentially to satellite related stuff, to taking stream bed samples … or … some basic
drilling, to full scale drilling programmes, to putting in declines for bulk samples etc’.
The BHP Billiton representative also raised the notion of finding the “sweet spot” at which consent
could be sought. This would be where they ‘are confident that there is something there but … not
so heavily invested that you can’t back out’. They suggest that finding that point is the challenge.
Consent in this scenario would consist of two points. One would be ‘before you go on any land
and do exploration’, something which they described as ‘FPIC light’, as ‘we don’t necessarily
want to have to go over a significant FPIC hurdle when we don’t know if there is potential for a
material discovery’. The second point is when the community has to take a ‘full scale decision’
as to whether they are going to allow the company ‘proceed with a significant development’. The
issue the BHP Billiton representative saw with the latter case is ‘at what point does a company
say I am not going to proceed with large scale exploration and trial mining unless I know I can
proceed with full scale development.
The Xstrata representative noted that they ‘prefer broad based support, because consent implies
a kind of once off flip the light switch and you have consent, where as we see it as an on-going
process that leads to an agreement which is then monitored and reviewed over time’. It was also
suggested that ‘the word consent can be taken as a one off, [where] you have got consent that’s it,
but it is very much an iterative process’. Ensuring that their people on the ground and communities
understood it as ‘an on-going process of consultation and … gaining the support of the community
throughout the operation’s life’ was described as one of the challenges that they faced.
The Anglo American representative explained that they understand the argument ‘that there
should be consent even before there is land licenced, before you should even apply for a licence
to do exploration’, but expressed the view that it ‘is possibly going a little too far, because the
first physical or social impact would be once you start to do exploration, so that seems to be an
appropriate point to me to ask for consent’. Consent at this initial stage would be for access, and
not for the final development plan as that could not be determined until later in the project lifecycle.
Perceived challenges to operationalization
a) National Sovereignty – antithetical to FPIC or merely another consideration to be
managed?
The ICMM representative noted that ‘part of the challenge in this space is that governments
have a responsibility to balance the rights of indigenous groups, or other minority groups with
the rights of the wider population’. As a result of this ‘one of the political realities [is that] you may
find yourself in a situation where governments say OK we’ll subscribe to the notion of consent,
but ultimately the sovereign government, it is within our gift to determine whether or not a project
should move forward.’ Given this context the ICMM representative felt that ‘depending upon how
things go in the next few years companies may get ahead of legal provisions, which is a good
thing, but we almost need a body of practice which demonstrates the art of the possible, before
companies can consistently do that from solid ground’.
Making Free, Prior and Informed Consent a Reality
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