may exclude certain groups that are profoundly important in terms of getting to the concept’ of
consent.
While they acknowledged that ‘good practice on FPIC generally says that you should seek consent
using traditional decision making techniques’ the Anglo American representative suggested that
doing so ‘could lead to a potential tension’ between human rights ‘as outlined in the Ruggie
principles / democratic norms and traditional decision making’. However, the company also
acknowledged that where they arise, the solution to these tensions ‘would have to be case
specific’.
c) Maintaining consent
An aspect of the definitional issue which arose in a number of the interviews was once consent
has been obtained how is it maintained? The De Beers representative raised a Canadian case
where the community had held a referendum ‘in which 85% of the people had voted in favour of
the project and the leaders had supported it’, which from the company’s perspective indicated
that ‘the margin of the vote had been substantial’. According to the company, following changes
in community leadership and demographic changes within the community, due to people moving
back to the area from elsewhere, they ‘decided that they wanted the contact changed and the
agreement torn up’. In addition ‘some in the community were saying that the company needed to
come back once a year in order to re-obtain consent.’
The concern that FPIC, as defined by some NGOs, needs to be re-obtained on an annual basis,
was also raised by the BHP Billiton representative as grounds for its reluctance to commit to it.
According to the BHP Billiton representative, ‘companies need a reasonable level of certainty
about the long term support for a project before they can commit capital to major resource
developments.’
d) Legacy Issues
One of the areas where a particular obstacle to FPIC was highlighted was in the context of
addressing legacy issues. The ICMM noted that ‘if you enter into a situation where some prior
action on the part of government has put indigenous peoples at odds with whoever come into
that situation, this can be very difficult to recover from. In such contexts they regarded it as
being ‘extraordinarily difficult for companies to navigate and reach a point of even getting to a
conversation with indigenous peoples about the prospects of developing a project in a way that
they would feel comfortable with’.
Commenting on how to address these legacy issues the Rio Tinto representative’s view was
that in many of the settings in which we all work are ones in which there is a high degree of
mistrust and have a bad history or a legacy of bad relationships so very often third parties are
needed as oversight, as moderators’. For this reason the Rio Tinto representative held that ‘the
implementation of FPIC was a mutual project for all of us, communities, civil society, government
and industry, and each situation is different but very often there are roles for civil society to
playing moderating or oversight influence’.
The Xstrata representative noted that in cases which have a very conflicted history ‘you come
in bearing the scars of the previous owners really, and having to rectify some of the errors of the
previous owners’.
e) Junior mining companies and FPIC
Closely related to this issue of legacy issues was the question of how juniors engaged with
communities and the implication of the FPIC requirement for them, given their potential lack
of capacity to deal with FPIC. Two perspectives were expressed by the Anglo American
representatives on the potential implications of the IFC 2012 Performance Standard for juniors.
One saw the IFC FPIC requirement as ‘going to influence project finance significantly, and that
the big companies who are used to being leaders on social responsibility type issues are not
Making Free, Prior and Informed Consent a Reality
47