3: Case Studies addressing indigenous peoples’ FPIC protocols
A number of the indigenous representatives interviewed addressed the practical role which
indigenous peoples’ protocols can play in the operationalization of a rights compliant model
of FPIC. Such views resonate with the experience of a growing number of indigenous peoples
throughout the world that formalizing their own engagement rules and procedures, in the form of
FPIC protocols, policies, templates or guidelines,110 may be one of the more effective avenues
available to assert self-determined and indigenous controlled models of FPIC. In addition these
protocols frequently address those ‘practical concerns’ raised by corporations with regard to FPIC
operationalization, including issues such as: procedural clarity; representation; and pan community
or peoples governance structures. As a result, while not a panacea for the complex issues which
arise in the context of mining engagements, these indigenous protocol approaches can go some
ways towards reducing long term investment risk exposure by providing both the clarity and certainty
which corporations seek. This protocol approach is addressed in four case studies covering three
jurisdictions: Canada, the Philippines and Colombia. Two cases studies address the Canadian
experience, as First Nations there have been leading the way in the formulation of these FPIC tools.
The Philippines and Colombian protocols cover numerous communities and were developed in
contexts where legally recognized rights, including the requirement for FPIC, are not upheld by the
State. They consequently provide important insights for companies considering operating in such
contexts.
Resguardo Indígena de Cañamono Lomaprieta, Riosucio y Supía Caldas,
Colombia
Resguardo and Colombian Context
The Resguardo111 of Cañamono Lomapretia covers 4,800 hectares and consists of 22,000 Embera
Chamí people living in 32 communities. It was registered as ancestral territory by the Spanish Crown
in 1540 and has a long history of gold mining during both the colonial and post-colonial era. The
indigenous population of the region have historical gold mining practices, and have continued these
practices of ancestral artisanal mining to this day. They now form an important part of their traditional
livelihoods and incomes. These practices have been considered illegal and criminalized by the
State, and those engaged in it have been jailed as a result.
The 1991 Constitution recognized the existence and inherent rights of indigenous peoples. Together
with the ratification of ILO Convention 169, it recognized the autonomous character of these peoples.
Official title has been given for ancestral lands covering more than 25% of Colombia’s land base,
with ongoing negotiations which will increase this amount.
However, over the last two decades there has been a new wave of repression of indigenous
communities associated with the State taking possession of their lands for extractive and
infrastructure projects. The current government has identified mining as a strategic focus, referring
to the “mining locomotive” which will drive the economy forward. It has adopted a strategy of
restructuring traditional Resguardos in order to attempt to facilitate third party access to them. This
is reflected in the enactment of legislation, including the Mining Code, which weakens the territorial
rights and special jurisdiction of indigenous peoples. Mining concessions have been issued to over
30% of the country, covering vast proportions of indigenous peoples’ territories. The 89 Colombian
indigenous peoples with officially titled lands are overlooked in the process, and mining companies
are informed by the responsible government agencies that there are no indigenous peoples in these
territories occupied by indigenous peoples for 400 years.
Precautionary measures have been issued by the Inter-American Commission on Human Rights
as a result of displacement threats to communities, while the Colombia Constitutional Court issued
an order recognizing 34 indigenous peoples as being in grave threat of extinction as a result of
military and paramilitary activities and encroachment of development projects into their territories.
The reform of the Mining Code was declared unconstitutional by the Constitutional Court due to
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Making Free, Prior and Informed Consent a Reality