different ways, i.e. there is no one standard definition’. The company also held that consent ‘is
not always defined in the same way by external groups, and so community expectations can
be set at completely unrealistic levels and that causes conflict’. More specifically, the Xstrata
representative suggested ‘that some anti-mining groups deliberately use consent to try to
introduce conflict, increase conflict, or change peoples’ expectations, and that has been very
unhelpful over the last few years, [and] made it much more difficult for companies to embrace
free prior and informed consent as it is more broadly understood by indigenous groups and by
most other third parties’.
b) Consent of whom?
The issue of whether the consent of all impacted communities was required in a context where
the majority of communities and peoples support a proposed project was raised by the De Beers
representative.
The Anglo American representative asked if there was ‘some sort of threshold’ for consent in
such contexts, ‘is it a majority of indigenous groups, is it all indigenous communities?’ In raising
this definitional question, as a ‘practical dilemma’ about which the industry was concerned, the
Anglo American representative also acknowledged that there are practical issues which are
‘probably quite hard to answer in the abstract because ... the answers can only be context
specific’.
The Xstrata representative expressed the view that consent ‘should be the desired outcome
but it should not be defined as requiring unanimous support from all of the potentially impacted
indigenous peoples, and it does also not constitute a right to veto’ of individuals or small groups
within a community.
c) FPIC of non-indigenous communities
The Anglo American representative noted that ‘clearly, the special rights and interests of
Indigenous Peoples underpin the FPIC debate. Therefore, we don’t see a strong case for
extending FPIC to non-indigenous communities, although if such a decision was made through
normal democratic processes within countries then we would of course respect that.’
The Rio Tinto representative noted that there was always the ‘optionality for companies, if they
so choose, to deal in the same way with non-indigenous communities’. Addressing the issue of
‘dealing with communities where the central government is not necessarily on board’ the Rio
Tinto representative observed that ‘we are kind of put in the position of not necessarily being
antagonistic to government but of almost kind of working in parallel and trying to avoid the other
trap which is becoming pseudo government yourself’.
d) Who is indigenous and how is membership determined?
The Anglo American representative pointed out that one of the impacts of the IFC’s engagement
with the requirement for FPIC was ‘a trend towards increasing self-identification’, particularly in
parts of South America. In this regard it was suggested that ‘there is a risk that you are going
to have a lot more communities who suddenly want to be treated as such, and there really isn’t
clear guidance around … how you do that’. An associated concern was expressed about how
difficult political situations could arise ‘if you have got a group who self-identify as Indigenous and
a government who doesn’t want to acknowledge them and afford them those rights and you’re
the company caught in the middle what are you to do?’
The Rio Tinto representative pointed out that they have to ‘work out what is the community’,
given the ‘tremendous variability among indigenous peoples’ and the fact that communities may
not be the ‘physical entities that bring people together’, but might be defined on something quite
different such as ‘ethnicity, or land affiliation, or other issues’. It also asked ‘what do you do in
areas where there are disparate communities?’
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Making Free, Prior and Informed Consent a Reality