customary ownership and declared that Merian is operating on Pamaka land. However, in
practical terms, the company has operated and negotiated as if it is operating on state land,
not traditionally held Maroon lands. Regardless of the uncertainties surrounding tribal
ownership of land, it is incumbent on any company to exercise due diligence to consult
affected, or potentially affected, tribal peoples prior to developing any land to which the
tribes lay claim.
When companies recognize customary land ownership, the nature of consent agreements
are stronger because the terms become tied to those rights. This moves beyond achieving
good relations with local people and applying the principles of FPIC to the degree that a
company chooses. At Merian, recognition of customary land ownership could facilitate a
form of consent premised on the full extent of the Pamaka’s land rights. In the Panel’s view,
while the Cooperation Agreement did include preferential employment and procurement
for the Pamaka, infrastructure improvement and maintenance, a complaints and grievance
mechanism, community development funding, and several other benefits, it did not go far
enough to create a truly equitable benefit-sharing agreement that reflects customary
ownership interests of the Pamaka. Instead, it constitutes what could be described as a
‘good neighbor agreement’; that is, a general set of development benefits that any local
community would be in a position to secure. The Pamaka may have consented to
community development projects on their territories, but they did not have an opportunity
to consent to resource development, or to negotiate to secure tangible benefits from the
project in exchange for access to their land holding.
In the Panel’s view, the Community Development Foundation provides for a modest transfer
of funds to the Pamaka and does not reflect what would likely emerge from a negotiation
grounded in a recognition of the Pamaka’s land and resource rights. This modest transfer is
inadequate to fully compensate for the Merian mine if Pamaka ownership (even if only
surface ownership) of the land used by the mine is genuinely conceded. The company’s
desire to apply FPIC principles may have guided community engagement at Merian.
However, the process was not meaningful from a substantive land rights perspective.
Summary points
• At Merian, the company has shown a commitment to community engagement.
• The Pamaka may have consented to community development projects on their
territories, but they did not have an opportunity to consent to resource
development, or to negotiate to secure tangible benefits from the project in
exchange for access to their land holding.
• It is incumbent on developers to exercise due diligence to consult affected, or
potentially affected, indigenous and tribal peoples prior to developing any land to
which the tribes lay claim.
• In the Panel’s view, negotiating on the basis of land ownership would have
provided the Pamaka with a more economically robust, front-end compensation
and benefit-sharing arrangement.
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