5
Panel observations on the operationalization of FPIC at Merian
This section details some of the challenges that the Panel observed in terms of the efforts
made by Surgold and Newmont to operationalize elements of FPIC. It is important to restate that Surgold does not claim to have obtained FPIC at Merian, nor is it pursuing an FPIC
process. Rather, Surgold states that its engagement and agreement-making processes are
“based on the principles of FPIC”. Newmont is interested in understanding where gaps exist
in its current practice and what might be required to obtain FPIC should it develop another
project on Maroon territory in the future. The discussion that follows represents the Panel’s
reflections on these issues. Recommendations are provided in the following section.
5.1
Engaging the Pamaka as landowners
The Panel’s first point of consideration is the ambiguity of the company’s approach to the
Pamaka’s status as customary land owners. The assertion of land ownership according to
their customary land tenure is the foundation upon which Maroon tribes have sought to
engage with outsiders.41 How the company views the Pamaka’s claim to land ownership
determines the basis upon which negotiation occurs. If the company accepts that the
Pamaka have land rights, then the Pamaka become visible as landowners with economic
interests with whom the company must engage. Customary land ownership would have
provided justification for the Pamaka to negotiate a stronger front-end, benefit-sharing
arrangement, such as an equity stake in the project. 42 While consent agreements do not
require the negotiation of an equity stake, and benefit-sharing can take many forms, land
ownership provides a more robust framework for meaningful benefit-sharing in a major
resource project.
The Panel recognizes that while the principle of customary land ownership may be
straightforward, the practicalities are more complex. An obvious point of complexity is that
the state does not formally recognize the land and resource rights of Maroon tribes.
Further, there is some dispute between Maroon peoples regarding which tribes have rights
over certain parcels of land. Practical difficulties arise in light of the government’s inaction
on the Inter-American Court’s orders to recognize and secure Maroon customary land
tenure. To date, the government has not sought to demarcate land or provide legislative or
administrative protections of land rights, as mandated by the Court. It is against this
backdrop that the Panel observes a level of ambiguity in how Surgold approaches the
question of land rights. At a general level, the company has demonstrated an awareness of
41
The Panel focused on matters pertaining to surface rights and has not considered whether the
Pamaka has a claim to sub-surface mineral rights.
42
In two of the community meetings, Pamaka leaders told the Panel if they had had the power and
opportunity to negotiate with the company, they would have wished to negotiate an equity stake in
the project. That the Pamaka are interested in such an arrangement would have to be verified
through direct engagement.
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