contribute to the infringement of the rights of indigenous and tribal peoples that are
internationally recognized, particularly in contexts where the reach and application of
domestic laws insufficiently safeguard those rights. 62 Typically, the exercise of such due
diligence by companies seeking to develop or extract resources within indigenous or tribal
peoples’ territories will be facilitated by companies themselves by engaging with indigenous
and tribal peoples in association with FPIC processes.
International financial institutions and industry groups also recognize the responsibility of
businesses to respect indigenous and tribal peoples’ rights. Notably, in 2012, the
International Finance Corporation (“IFC”) strengthened its requirements relating to
engagement with indigenous and tribal peoples. IFC clients are required to identify the
nature and degree of expected economic, social, cultural, and environmental impacts of
their projects on indigenous and tribal peoples, to avoid adverse impacts and, where they
are unavoidable, to minimize, restore, and/or compensate for them. 63 Recognizing that
indigenous and tribal peoples may be particularly vulnerable to the loss of, alienation from,
or exploitation of their land and access to natural and cultural resources, the IFC requires its
clients to obtain the FPIC of affected indigenous and tribal peoples if the client proposes to:
(i)
(ii)
(iii)
locate a project or commercially develop natural resources on lands traditionally
owned by, or under the customary use of, indigenous and tribal peoples, and
where adverse impacts can be expected
relocate an indigenous community, or
embark on a project that may have unavoidable, significant impacts on critical
cultural heritage of indigenous and tribal peoples.
Newmont recognizes the IFC Environmental and Social Performance Standards as a key
point of reference within its Sustainability and Stakeholder Engagement Policy. The policy
also includes an explicit commitment to build constructive relationships with indigenous and
tribal peoples and recognize their social, economic, and cultural heritage.
The International Council on Mining and Metals (“ICMM”), the mining industry’s
international industry body, of which Newmont is a founding member, has recognized that
“mining and metals companies have a responsibility to respect the human rights of the
62
UN Special Rapporteur on the rights of indigenous peoples, James Anaya, “Report of the Special
Rapporteur on the rights of indigenous peoples,” A/HRC/21/47, July 6, 2012, para. 83. The
commentary to principle 11 of the Guiding Principles also clarifies that the corporate responsibility
to respect human rights “exists independently of States’ abilities and/or willingness to fulfill their
own human rights obligations, and does not diminish those obligations. And it exists over and above
compliance with national laws and regulations protecting human rights.”
63
IFC, Performance Standard 7,
http://www.ifc.org/wps/wcm/connect/115482804a0255db96fbffd1a5d13d27/PS_English_2012_Full
-Document.pdf?MOD=AJPERES. The IFC’s 2006 Performance Standard on indigenous peoples
required “free, prior, informed consultation.”