rights dynamics associated with working to obtain FPIC in jurisdictions where the broader
conditions are not rights-compatible. The Panel provided a number of general
recommendations for the industry at large. As a next step, these recommendations,
alongside the findings of this report, will be discussed at RESOLVE’s FPIC Solutions Dialogue.
The Panel also outlined a number of specific measures to improve community engagement
and human rights performance at the Merian mine. Some of these constitute measures to
remediate past practice and respond to identified gaps. For example, there is a need to
address the issue of the incomplete state of social baseline data and impact assessments
that identify human rights issues. The Panel recommends that these studies be completed,
and that the data and findings of these studies be shared with the Maroon tribes and
incorporated into site-level strategies, plans and management systems at Merian. The Panel
also encourages the site to use these studies as a basis for understanding the ramifications
associated with the dispossession of some Maroon people from their customary lands.
A central point that the Panel has sought to communicate is that indigenous and tribal
peoples’ ability to negotiate with a company (or a state) is a function of the broader set of
human rights that support FPIC. Consent that is based on collective land and resource rights
provides a robust economic framework for negotiating with indigenous and tribal peoples.
This could include, for example, equity shares, royalty payments, community development
funds or trusts wholly owned and governed by the community and of an amount
commensurate with recognition of customary land as an economic asset, and other
strategies to achieve wealth transfer over time. 54 Without recognizing customary land as an
economic asset, the transfer of wealth tends to be at the discretion of corporate actors.
While discretionary community development initiatives are important (and if wellconceived, can build the capacity of indigenous and tribal peoples to exercise their human
rights) they tend to position landowners as passive recipients with needs, rather than
positioning them as active partners in resource development with economic assets and
rights.
Finally, there is the question of how a company works to obtain FPIC when the option to
develop the resource has already been taken. FPIC implies a continuing relationship of
negotiation and consent subsequent to an initial approval. FPIC for ongoing decisions in the
absence of indigenous and tribal peoples having the opportunity to consent to resource
development in earlier phases, and negotiate an economic exchange on the basis of land
ownership, does not constitute FPIC within a human rights framework. The Panel
54
For a discussion of genuine partnership and sharing of benefits with indigenous and tribal peoples
in the context of resource extraction see chapter IV, paras. 75-77 in: UN Special Rapporteur on the
rights of indigenous peoples, James Anaya, “Compilation of the conclusions and recommendations
of the Special Rapporteur on the rights of indigenous peoples, James Anaya, on extractive industries
affecting indigenous peoples and other issues related to business and human rights,”
A/HRC/FBHR/2012/CRP.1, 29 November 2012.
32