agreed by, or inherent in, the project right from the start … is important’. They also observed that
‘when we talk about the challenges of FPIC we are talking about the things that can prevent a
successful process happening, but a successful process itself is a huge strategic benefit ... as long
as it is seen as an on-going process by both the company and the government and the communities’.
The BHP Billiton representative noted that they had ‘gone through an exercise of mapping [our
Group Level Documents (internal standards)] to the elements of free prior and informed consent,
and … are probably in a similar position to most companies, [in] that we are very comfortable with
the free prior and informed elements, but we have always struggled with consent’. The issues they
identified as ‘associated with the struggle with consent’ ‘link back with the sovereign rights of States’
and ‘concerns about manipulation or exploitation or…corruption of process’.
The Inmet representative explained that the current differences of opinion of what consent meant
in practice was the primary concern they have about creating and implementing a formal policy.
There is concern that having a formal FPIC policy, particularly incorporating an explicit definition of
consent, could expose the company to criticism, rather than being seen as a positive step forward
in the FPIC conversation. In Inmet’s case their commitment to obtain FPIC for resettlement in the
Cobre Panama project was a result of their corporate responsibility vision, their corporate values
and the perspective that they will not develop a project if they do not have privilege to operate from
the local communities.
The ICMM representatives suggested that, should they move towards a free prior and informed
consent standard, they would ‘want communities to recognize that ICMM members have set out
the expectation of responsible behaviour in this space’ which other companies should also be
adhering to. They also expressed the view that ‘the debate needs to shift from “FPIC or not FPIC”,
to addressing the practical implementation challenges’. In this context they would ‘like to think that
the ICMM can be part of moving the debate in that direction’. They also raised the question as to
what a good process for arriving at their policy in relation to FPIC should look like.
A general perspective which emerged from the discussions on policy was that companies felt that
even if their policies did not publicly commit to obtaining FPIC, there was nothing in their policies
which acted as an obstacle to obtaining consent. The view was that in practice companies were in
fact already attempting to operationalize the principle, and that further dialogue and discussion on
how this could be achieved was welcome. At the same time this was coupled with the perspective
on actual practice, which emerged from a number of interviews, that accepting the outcome of
consent seeking process in circumstances where consent was withheld was something that they
struggled with in contexts where the resource could potentially be exploited by another company.
The obstacles which the companies interviewed saw to the operationalization of FPIC in practice
and the potential solutions or opportunities they envisaged in relation to these are addressed in the
following section.
Corporate perspectives on FPIC operationalization
Definitional ambiguities
A number of questions arose around the definition of consent and to whom and when it applies.
a) Concept of consent
The view was expressed by the ICMM representative that defining consent, and arriving at what
it looked like from the community’s perspective, should be part of a broader discussion whereby
companies engage with Indigenous communities early on to agree appropriate engagement
and consultation processes (including what would constitute consent). However, they raised
a concern that the concept of consent could be defined in a manner that is disadvantageous
to members of the community, such as in cases where consent was defined as ‘when an
unrepresentative number of elders, for example, who may personally benefit but whose people
may be disadvantaged, approve.’
The Xstrata representative held that there was a need to ‘get past … the fears around what
consent does and doesn’t mean. Communities that define FPIC protocols, define consent in
Making Free, Prior and Informed Consent a Reality
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