“We also have agreed that any mining would be subject to free, prior informed consent by
[First Nation X]. We are prepared to work within your protocols. We will be retaining our mining
claims that are currently in existence. However, we will not work on these without the consent of
[First Nation X] (or other First Nations). We agree completely that where there is an overlap of
traditional lands, or sharing, then this should be resolved by the First Nations involved.”175
De Beers’ commitment not to work on claims in First Nation X’s territory and to comply with their
protocols is praiseworthy, and offers an important example for other mining companies to follow. It
also touches on two important issues around FPIC from the perspective of indigenous peoples.
One is the question of the stage at which consent should be obtained. First Nation X, in common
with the position of most Canadian First Nations, is of the view that respect for the jurisdictional and
territorial rights of indigenous peoples implies that consent must be obtained prior to the issuance
of any lease or concession over their territories, as well as for access to those territories in order
to conduct exploration or exploitation activities. This consent must be obtained on the basis of the
terms defined by the indigenous peoples themselves. Such an interpretation is consistent with the
obligations which flow from international human rights standards. The fact that De Beers commitment
is framed within the context of its existing mining claims, obtained without First Nation X consent,
means that while it is a ground-breaking commitment for the industry, it nevertheless still falls short
of international human rights standards.
A second issue that the case raises is how consent is to be operationalized where there are multiple
communities or people sharing the area impacted by a project proposal, in particular where there are
diverging opinions or existing land disputes among these communities. De Beers’ communication
with First Nation X suggests that in such cases it will operate on the principle that First Nations
themselves should be the ones to resolve any disputes in relation to overlapping traditional lands. It
commits De Beers to working ‘within shared areas where there is consensus between the affected
First Nations’. However, De Beers also state that ‘in areas of dispute they would only work in such
areas where there is support from two or more First Nations involved in the disputed area’.176 This
appears more conservative than the position adopted by Canadian First Nations themselves, which
holds that operations should not be located in areas in which a) there are disputed land claims, b)
unresolved community overlaps exists, or c) over which there is conflict. It is also at odds with the
notion that the FPIC of each First Nation has to be respected in order for their particular rights to be
safeguarded.
In addition to drawing out these issues the case also demonstrates that, where indigenous peoples
have sufficient leverage to assert their territorial jurisdiction and decision-making rights, corporations
may engage with them on an ‘as-if’ basis, where they operate as if the indigenous peoples’ inherent
rights over their territories and resources were fully recognized under the national legislative
framework.
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Making Free, Prior and Informed Consent a Reality