c) Oversight and Grievance
The importance of oversight of consultation and consent seeking processes was raised by the
Rio Tinto representative. The company representative noted the potential role that civil society
could play in this regard and also suggested that the IFC Compliance / Advisor Ombudsman
(CAO) ‘has given a lot of credibility to some of these situations’. The Rio Tinto representative
also noted the important oversight role of Land Councils in Australia which ‘keep a firm grip on
negotiations between aboriginal clans and companies and are very much a part of the process’.
In the United States context it discussed the novel approach being adopted at its Eagle project.
The Xstrata representative expressed the view that ‘reasonable avenues of recourse’ are
necessary when engaging in a consent seeking processes. Consequently, ‘the grievance
mechanism part of an FPIC process is going to be very important’ as ‘one of the huge challenges’
from their perspective ‘is how do you ensure that all of the participants are acting in good faith,
and how ...do you ensure that the process isn’t disrupted by minority groups with a particular
view point, or political agenda, or whatever it might be’.
Positive practices raised by companies
Almost 40 cases were raised in the context of the interviews. Some were experiences from which
the companies claimed to have learned important lessons. Others were examples of elements of
good practice, but not full FPIC, while others were cases involving a commitment to obtaining FPIC.
Addressing the first set of cases the Rio Tinto representative noted that ‘every company has its
Bougainville, but you have to work even harder to get over it to prove that you are a different beast
now and worthwhile talking to at least, if not engaging fully with’.
The Anglo American representatives made reference to lessons learned from the Cerrejon project,
and their on-going efforts to address these legacy issues. BHP Billiton referred to the lessons it had
learned from relying on a local partner to conduct an FPIC process in the Philippines, stating that
they reached ‘the point where we lost confidence’ in some aspects of the FPIC process that was
conducted, despite it being documented by the National Commission on Indigenous Peoples. Their
conclusion from that experience was they ‘will always want to be in control and have our people
doing the work and not rely on a third party’.
A number of cases were pointed to where companies identified aspects of positive practice in their
engagement with indigenous peoples. Unlike the cases discussed in the ‘company FPIC case study’
section below, these cases are not examples of where a public commitment was made to obtain
indigenous peoples’ FPIC. The project research did not extend to validating the information with the
impacted communities, so the following perspectives are solely based on information provided by
the companies.
The Rio Tinto representative pointed to the Community Environment Monitoring Program at its
Eagle Project in Michigan, which is due to commence production in 2014. Under this program, ‘the
Tribe can appoint a representative to the Monitoring Board, the Tribe has a say in what monitoring
will be undertaken and the Tribe can be involved in actual monitoring activities’. The Rio Tinto
representative describes ‘this model of comprehensive independent community environmental
monitoring’ as establishing a new benchmark within the company, and as serving ‘as a model for the
resource development industry’.
The Rio Tinto representative discussed the constructive manner in which the agreements had evolved
at Argyle and at Gove. The negotiation of an agreement with the traditional owners at Gove in 2010
was described as ‘truly reflecting FPIC’ with respect to the new and extended leases. According
to the Rio Tinto representative the traditional owners stated that subject to appropriate negotiated
terms, their aim was to support the project renewal, despite the fact that they had objected to original
imposition in 1969. The Rio Tinto representative explained that regardless of what may or may not
have been required at law, the company started with the mind-set that traditional owner consent was
indeed required along with public acknowledgement of and respect for their land rights and their
entitlement to negotiate benefits. Privately employed lawyers and financial advisors were funded by
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Making Free, Prior and Informed Consent a Reality