its people, including Aboriginal persons” and the “development of the Project will not result in any
significant adverse environmental effects.”174 The LKDFN view De Beers as not approaching the
engagement with them on the basis of obtaining their consent.
The other impacted First Nations have not to-date expressed an intent to withhold their consent
to the project. The case therefore raises the issue of who determines if impacts are considered
substantial, and how FPIC should be operationalized in contexts where there are multiple
communities or indigenous peoples impacted by a project proposal. A related issue is how divergent
opinions between communities on whether to provide consent or not are dealt with as part of FPIC
processes.
The case also begs the question as to the implications of a company developing or improving
its policy on FPIC in a context where it already has operations in place, and whether this poses
challenges in light past practices or arrangements which have ongoing implications for communities.
All of the cases raise issues in relation to benefit sharing and optimum negotiation positions for
indigenous communities when engaging with companies in the context of FPIC processes. The
Victor experience suggests that industry-wide greater transparency and access to information
on existing benefit sharing arrangements between mining companies and indigenous peoples is
necessary so that indigenous peoples who are considering engaging in benefit sharing negotiations
have an insight into what they can reasonably expect to negotiate with mining companies operating
in their territories. The cases also raise the question as to what the potential implications are for past
agreements which were entered into in contexts where indigenous peoples’ negotiating power with
mining companies was weak, relative to their current negotiating power under an FPIC framework.
De Beers’ engagement with the First Nation X
De Beers had conducted regional exploration work covering the territory of a Canadian First Nation
[referred to here as First Nation X in the interests of the company and the community]. The company
decided to halt this exploration activity when it became clear that the First Nation was opposed to
exploration and mining in its territories. The First Nation requested that any future engagement with
them be based on their own protocols. In 2012, De Beers replied to the First Nation’s request stating:
Bruce Shisheesh removes sheriff’s injunction notice at a Victor mine demonstration on 17th February 2013.
Photo: APTN
Making Free, Prior and Informed Consent a Reality
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