rights dynamics associated with working to obtain FPIC in jurisdictions where the broader conditions are not rights-compatible. The Panel provided a number of general recommendations for the industry at large. As a next step, these recommendations, alongside the findings of this report, will be discussed at RESOLVE’s FPIC Solutions Dialogue. The Panel also outlined a number of specific measures to improve community engagement and human rights performance at the Merian mine. Some of these constitute measures to remediate past practice and respond to identified gaps. For example, there is a need to address the issue of the incomplete state of social baseline data and impact assessments that identify human rights issues. The Panel recommends that these studies be completed, and that the data and findings of these studies be shared with the Maroon tribes and incorporated into site-level strategies, plans and management systems at Merian. The Panel also encourages the site to use these studies as a basis for understanding the ramifications associated with the dispossession of some Maroon people from their customary lands. A central point that the Panel has sought to communicate is that indigenous and tribal peoples’ ability to negotiate with a company (or a state) is a function of the broader set of human rights that support FPIC. Consent that is based on collective land and resource rights provides a robust economic framework for negotiating with indigenous and tribal peoples. This could include, for example, equity shares, royalty payments, community development funds or trusts wholly owned and governed by the community and of an amount commensurate with recognition of customary land as an economic asset, and other strategies to achieve wealth transfer over time. 54 Without recognizing customary land as an economic asset, the transfer of wealth tends to be at the discretion of corporate actors. While discretionary community development initiatives are important (and if wellconceived, can build the capacity of indigenous and tribal peoples to exercise their human rights) they tend to position landowners as passive recipients with needs, rather than positioning them as active partners in resource development with economic assets and rights. Finally, there is the question of how a company works to obtain FPIC when the option to develop the resource has already been taken. FPIC implies a continuing relationship of negotiation and consent subsequent to an initial approval. FPIC for ongoing decisions in the absence of indigenous and tribal peoples having the opportunity to consent to resource development in earlier phases, and negotiate an economic exchange on the basis of land ownership, does not constitute FPIC within a human rights framework. The Panel 54 For a discussion of genuine partnership and sharing of benefits with indigenous and tribal peoples in the context of resource extraction see chapter IV, paras. 75-77 in: UN Special Rapporteur on the rights of indigenous peoples, James Anaya, “Compilation of the conclusions and recommendations of the Special Rapporteur on the rights of indigenous peoples, James Anaya, on extractive industries affecting indigenous peoples and other issues related to business and human rights,” A/HRC/FBHR/2012/CRP.1, 29 November 2012. 32

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