9. Encourage the review of judgments of the Inter-American Court and ensure that, even in the absence of obtaining FPIC, the company understands and considers other safeguards, including: a. above mentioned studies about indigenous and tribal land and resource rights b. mitigation measures for identified human rights risks and impacts c. future benefit-sharing arrangements that are based on a practical recognition of indigenous and tribal land and resource rights. 10. To the question of whether Newmont could obtain FPIC for future significant decisions at Merian in the absence of FPIC for project development, it is the Panel’s view that, by definition, consent in retrospect does not constitute FPIC. The Panel does consider it possible, however, for the company to retrospectively address its prior impact on indigenous and tribal land and resource rights, as a basis for working to obtain FPIC for future significant decisions. Under these conditions, FPIC would be conditional on remedying those issues associated with past practice and negotiating on the basis of the land and resource rights. Only Maroon peoples can determine whether these conditions would provide an adequate basis for entering into FPIC negotiations for future significant decisions. 7 Additional guidance for industry Drawing on the lessons of Merian, the following set of recommendations provides general guidance for resource developers working to obtain FPIC. 1. FPIC is a mechanism that safeguards indigenous and tribal peoples’ rights, including land and resource rights. While states are ultimately responsible for ensuring protection of indigenous and tribal peoples’ rights, companies should independently exercise due diligence and ensure that they do not themselves infringe or contribute to infringement of indigenous and tribal people’s rights. The operationalization of FPIC within a human rights framework by corporate actors is part of the exercise of this due diligence. 2. In exercising due diligence, companies should identify situations where indigenous or tribal peoples’ claims to customary land are uncertain or subject to dispute prior to undertaking any activities on that land. Companies may play a role in facilitating resolution of these matters. For example, as recommended above, companies can finance specialists (such as anthropologists and geographers) chosen by traditional authorities to work with those authorities to map their customary land ownership. Companies should not conduct or advance mining-related activities until such matters are understood and a process for resolution agreed between the indigenous or tribal peoples. 29

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