context of a First Nation in British Columbia where councils were ‘established within the Aboriginal
communities who are ... participating actively in the environmental assessment process’. The
suggestion was made that in the context of obtaining consent ‘you could see the industry start
to try to look more towards those kind of models overtime in communities where there is the
capacity to do that’.
b) Indigenous Peoples FPIC Protocols
The issue of community FPIC protocols was addressed in a number of the discussions. While all
of the companies, with the exception of De Beers, claimed not to have experience of engaging
with communities that had defined their own FPIC protocols, the Rio Tinto representative
suggested that a ‘protocol presumably includes who represents whom about what and reflects
their social structure’. The representative suggested that ‘a lot of companies shy away from FPIC
because they say how do we know who we are dealing with…and getting around that so that you
can see what the real structures are in the community…is often not very easy?’. As a result they
held that ‘the more that can be done up front the better otherwise companies have to go in and
develop the mechanism for engagement not necessarily knowing much about the community’
which raises the issue of ‘imposing a foreign model that is inappropriate for that community’. In
light of this the Rio Tinto representative regarded ‘whatever can be set up prior’ as being very
welcome, ‘whether that’s structures for engagement or processes and protocols’.
The Xstrata representative raised a concern regarding ‘conflict over who are the community leaders
or what are the appropriate protocols’. The Xstrata representative explained that ‘historically,
Xstrata engaged with tribal leaders, now its approach has evolved to allow engagement with
each affected household, as this allows the inclusion of the whole community, including minority
groups such as women and the elderly, in the process and has been well-received.’. As a result
they suggested that ‘this idea that there is a sort of a coherent view that itself has broad based
support of a protocol for FPIC.. is just problematic in a lot of communities, particular where you
have fragmented leadership structures or conflict over the leadership structure’.
The Anglo American representative expressed the view that ‘mining companies are clearly going
to need support in implementing FPIC. Similarly, I’m sure it would be useful for communities
engaging with the mining sector for the first time to understand how mutually beneficial agreements
can be reached. It would be helpful to know of successful cases – from both a company and
community perspective – that can be used to inform approaches.’
The BHP Billiton representative noted the need for FPIC not to be a tick-box exercise, and that it
is ‘complicated by how the local community believes corporates should engage with them’ which
is ‘certainly not a generic process that is common in all jurisdictions’. The company regarded
community protocols as ‘an area where there does need to be more development, more case
studies, examples, development of best practice and identification of what works in practice and
what doesn’t work’ and held that ‘anything that helps you put it into effect would be helpful’.
The De Beers representative noted the company’s constructive engagement with a First Nation
in Canada on the basis of their FPIC protocol, and the suggestions it made to them with regard
to the potential financial implications of certain aspects of the protocol pertaining to community
sovereignty over resources and production sharing agreements.
Commenting on the potential of indigenous defined FPIC protocols, the ICMM representative
noted that they had not had any practical experience with them, but saw ‘value in that kind of
an approach’ and thought that ‘in principle’ it was ‘very interesting’. It suggested that ‘having a
repository signalling how this has been done in different contexts could be incredibly helpful’ and
particularly ‘interesting if it is a process that has actually been applied with a good outcome’, as
‘then you could say it’s a sort of a template for how the world should be’.
Making Free, Prior and Informed Consent a Reality
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