the company and an agreement was reached which focuses particularly on business development.
At Argyle, in 2004 and 2005, a Participation Agreement and an Indigenous Land Use Agreement
were entered into with all of the relevant traditional owners, represented by the Kimberly Land
Council. The Rio Tinto representative described this as reflecting an on-going relationship with the
traditional owners, which had matured since the initial agreement in the 1980s with a smaller group
of Aboriginal elders. The agreement recognizes indigenous peoples’ land rights and addresses
employment, education and income generation.
The 2013 agreement entered into with the Gundjeihmi Aboriginal Corporation at the Ranger project,
after 13 years of negotiations, replaced the earlier contested agreement. The negotiations led to a
mining agreement with the Land Council and a separate support agreement between the company
and Traditional Owners. As a result of the negotiations the company feels that there is now a much
more positive relationship with the Traditional Owners.
The Anglo American representative identified the company’s Quellaveco project in Southern Peru as
an example of good practice in terms of community engagement. Indigenous Amayra communities
in high lands were among the impacted groups with which the company engaged. The engagement
approach was not distinct for the indigenous groups who formed a small minority of the impacted
communities. The company described itself as ‘looking for understanding and consent’, with the
approach they adopted representing an ‘example of, how, if you do things with transparency and
patience, they can work’. They described it as ‘a cautious success story’ in which ‘you have consent
day by day’ with the question always being ‘what do you need to keep it tomorrow’. The dialogue
table was described as forcing a lot of listening on their behalf and allowing them to develop ‘a great
understanding of socio–political dynamics and the peoples’ aspirations’. Another case that was
regarded with cautious optimism by the Anglo American representative was the Michiquillay project
in Peru, where a secret ballot was conducted prior to exploration with the two communities, neither
of which self-identifies as indigenous. Both of the communities supported the project and continued
to do so, despite the fact that the surrounding area was one of the most conflict prone areas in terms
of mining projects in Latin America.
At its Ok Tedi project BHP Billiton required Ok Tedi Mining Ltd (OTML) to ‘demonstrate continued
support for the operation of local communities down the river system’. To do this ‘OTML enlisted
an NGO to run an informed consent process called the Community Mine Continuation Agreement’.
According to the BHP Billiton representative, a decision was later taken to withdraw from the project
following international opposition and issues with downstream communities. This did not, however,
stop the mine from operating.
The BHP Billiton representative cited the company’s Olympic Dam expansion project in South
Australia as an example of where broad community support has been revisited in the context of
material changes to a pre-existing project. The Browse project, in which BHP Billiton subsequently
sold its minority share, was cited as an example of agreement making in the context of State
intervention if an agreement was not reached. The fact that this case is illustrative of the absence of
the ‘Free’ dimension of FPIC has been noted.157
The Xstrata representative described a number of projects which they regarded as representing
good practice in terms of engagement with traditional leadership structures. These included the
consultation programme conducted for the social impact assessment for McArther River (Zinc) Mine
(MRM) Phase 3 (2011) Development Project, in Australia’s Northern Territory, where there have been
some tensions with the Northern Land Council. The process involved the prioritization of meetings
with the Traditional Owners of all four language groups across an extensive geographic region. Site
visits were organized, consultations on culturally inappropriate days were avoided, and the MRM
General Manager and an indigenous woman were appointed to undertake the consultation. Among
the challenges encountered were reaching everyone, low levels of literacy, consultation fatigue and
competition for access and time.
Another example provided was the Frieda River project’s land access programme and resolution of
land ownership dispute (2012), which formed part of the permitting process in Papua New Guinea.
Two tribal communities were in conflict over customary land ownership and usage, with no written
Making Free, Prior and Informed Consent a Reality
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