How to determine who represents the community
Human rights bodies have recommended that mining companies should be guided by international
criteria in the identification of indigenous peoples and the recognition of their rights, including rights
flowing from customary tenure.
Various corporations have expressed their concern that, in developing dialogue with affected
communities and rights holders, corporations are ill-equipped to judge between contesting claims
by different bodies to be representative of communities. Indigenous peoples and international
human rights standards direct corporations to engage in broad-based consultations with indigenous
authorities in the areas in which they seek to operate and to be guided by them in relation to the
bodies with which they should dialogue. Where national and regional federations of indigenous
peoples exist, they should be consulted. In practice open and inclusive dialogue will generally result in
the identification by indigenous peoples themselves of their own representatives and representative
bodies. In cases where indigenous peoples have not had the opportunity to develop and strengthen
their representative structures to the point where they are equipped to enter into FPIC-based dialogue
and negotiations, then the granting of consent will not be possible and projects should not proceed.
Dialogue with indigenous representatives in contexts outside of specific consent seeking processes
can help provide corporations with guidance in addressing these concerns. However, the corruption
of so-called community leaders through outright bribery or the provision of other favoured treatment is
an unfortunate part of the history of corporate relations with indigenous peoples. Such short-sighted
conduct rarely escapes local notice and usually poisons future relations to the detriment of all parties.
What is the role of corporations in capacity building?
Corporate social responsibility projects conducted with communities prior to obtaining consent
are regarded by many indigenous peoples as having an undue influence on the outcome of FPIC
processes. In the conduct of FPIC processes corporations need to be mindful of not influencing, or
being perceived as trying to influence, the outcome of the FPIC process. Corporations do however
need to ensure that communities are informed of their rights and that mechanisms are established
to ensure adequate funding is available for capacity building and access to independent legal and
technical advisors of the communities choosing. A mutually beneficial starting point would include
discussions with indigenous representatives around where this has been realized, and possible
routes towards ensuring resources are available for improved capacity building for indigenous
peoples, in a manner which is transparent and guarantees the autonomy of indigenous decisionmaking.
What are adequate benefit sharing models?
The issue of benefit sharing, and indigenous expectations around this, arose in a number of the
mining company interviews. One perception was that some indigenous peoples, in particular those
with little experience of the mining sector, had unreasonable expectations as to possible benefits
sharing arrangements. Another perspective, raised by both companies and indigenous peoples, or
those working on their behalf, was that introducing the issue of benefits early in the process tended
to detract from other fundamental issues which needed to be addressed. Yet another issue raised
was what constituted an appropriate financial model for benefit sharing and control over the benefit
stream, as well the potential role of companies, indigenous peoples and third parties in the transparent
and effective administration of benefits. The importance of independent legal counsel and negotiators
for indigenous peoples prior to signing any agreements was also emphasized. Another issue raised
was the effect of confidentiality of benefit agreements on the operationalization of FPIC. Indigenous
peoples raised the issue of cultural appropriateness of benefits and expressed a concern that there
was often an assumption by companies that everything could be quantified in financial terms. Finally,
the notion of going beyond benefit sharing to entering into production sharing agreements with
indigenous peoples was also raised, on the grounds that indigenous peoples have inherent claims
over the resources in their territories. There is consequently a broad range of issues pertaining to
benefit sharing in the context of FPIC processes that could be the subject of further dialogue.
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Making Free, Prior and Informed Consent a Reality