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.
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