5: Company case studies
The BHP Billiton representative noted the importance of ‘case studies examples where companies
have implemented an FPIC compliant process that has worked effectively’. This didn’t necessarily
mean addressing cases in which consent was forthcoming but those in which both parties agree
‘that it was the full and fair process and the community made the decision that was right for them
based on all the information and it wasn’t corrupted or it wasn’t compromised, it just worked well’.
According to the BHP Billiton representative ‘that sort of case study exploration would be very useful
as this evolves, because one of the nervousness issues for companies is the lack of track record of
effectively doing this in a way that works well’.
However, the relatively nascent nature of the industry’s engagement with the principle, and the
lack of an informed understanding of what this means from the perspective of the impacted
indigenous peoples, means that such cases are few and far between. As pointed out by the Rio Tinto
representative ‘you don’t build something like this overnight, it’s a very complex process both on the
company side and on the community side, and no wonder there’s not very many examples around
because we really just started trying to do it in the fashion that its laid out under the FPIC framework’.
The following four cases address examples where companies have committed to obtaining FPIC.
In all of the cases the perspectives of the indigenous representatives was sought. In one case this
perspective was not obtained for timing reasons, so the perspective offered is that of the Land
Council which acts on acts on behalf of the Traditional Owners in the conduct of FPIC processes.
A fifth case study, addressing Inmet’s Cobre Panama project and the Ngobe people, was also
researched. The perspectives afforded by the company and the consultants working for it on the
one hand and an indigenous leader and a Canadian professor on the other,158 on the nature of
the consultations and consent seeking processes diverged substantially. Company responses to
issues raised by the indigenous leader were received as this report was going to print. Despite
our best efforts there was insufficient time to reconcile these diverging perspectives and reach
an adequately informed and agreed set of observations. As a result it was decided to remove the
case study. The authors hope to revisit the case outside the context of the report as it touched on
interesting questions which are relevant in other contexts. These include examining through the
lens of indigenous peoples’ rights: a) the process for the operationalization of FPIC for relocation of
two communities which occurred some years subsequent to the issuance of the concession; b) the
potential implications of obtaining consent for relocation from these communities, in a context where
the consent of other impacted indigenous communities who will not be relocated is not sought;
and c) the rights basis for the requirement for FPIC of indigenous communities who have either a
tradition of moving between locations, with which they may have some historical relationship, or
have had to do so for practical reasons such as economic necessity, population expansion, conflict,
or the unavailability of a suitable land base.
Jabiluka – Rio Tinto / ERA and the Mirarr People
Name of Project: Jabiluka
Company: Rio Tinto (majority shareholder in local operator Energy Resources of Australia (ERA))
Location: Northern Territory, Australia
Indigenous Peoples: Mirarr
Minerals: Uranium
Current Status: ERA maintains Jabiluka lease. No mining operations being conducted there and a
contractual agreement in place requiring Mirarr consent for their conduct.
The Jabiluka case, involving the Mirarr people, is one of the most frequently cited by Rio Tinto in
international fora as evidence of its willingness to respect decisions of indigenous peoples who are
Making Free, Prior and Informed Consent a Reality
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