IRMA Standard for Responsible Mining (Draft 2.0)
Chapter 2.10 Free Prior and Informed Consent FPIC

Background

For more than a quarter century, the international community has recognized that special attention needs to be paid to the individual and collective rights of indigenous peoples. [1] 

The following rights of indigenous peoples are especially relevant in relation to industrial-scale mining developments:[2]

  • the right to self-determination, by virtue of which indigenous peoples freely determine their political status and pursue their economic, social and cultural development;
  • rights to property, culture, religion, and non-discrimination in relation to lands, territories and natural resources, including sacred places and objects
  • rights to health and physical well-being in relation to a clean and healthy environment
  • rights to set and pursue their own priorities for development
  • the right to make authoritative decisions about external projects or investments

Both States and corporations should respect these rights. Corporations may demonstrate such respect by obtaining the Free, Prior and Informed Consent (FPIC) of indigenous peoples and providing for culturally appropriate alternatives and adequate compensation and benefits for projects that affect indigenous peoples’ rights.[3] 

Key elements of the requirement for consent of indigenous peoples have been recognized by international law since 1989, when the General Conference of the International Labour Organization adopted Convention 169 on Indigenous and Tribal Peoples.[4]  Since 1989, FPIC has gained broader application and more widespread support in national laws and various international instruments and bodies.[5]

Objectives/Intent of this Chapter

To respect the rights, dignity, aspirations, culture, and livelihoods of indigenous peoples.

Scope of Application

Chapter Relevance:  Operating companies may provide evidence that this Chapter is not relevant if they can prove that there are no indigenous peoples who may be affected by their exploration or mining activities, or potential mine expansions.

New vs. Existing Mines:  New mines shall meet the requirements in this chapter. At existing mines, where FPIC was not obtained in the past, operating companies will be expected to demonstrate that they are operating in a manner that seeks to achieve the objective of this chapter. Additionally, it should be noted that if there are human-rights-related impacts on indigenous peoples that have not been mitigated or remediated at existing mines, they will need to be addressed as per Chapter 2.4; and other unremediated impacts may be addressed through the operational-level grievance mechanism as per Chapter 2.13. (See the table “Cross Reference to Other Chapters” in the Notes Section of this Chapter for more information.)

Both new and existing mines shall obtain the free, prior and informed consent of indigenous peoples if there are proposed changes to the company’s plans or activities that may significantly change the nature or degree of an existing impact, or result in additional impacts on indigenous peoples rights, lands, territories, resources, properties, livelihoods, cultures or religions.

Overlap with national laws:  The State always holds the primary duty to protect indigenous peoples’ rights. Nothing in this chapter is intended to reduce the primary responsibility of the State to consult with indigenous peoples in order to obtain their FPIC and protect their rights. However, IRMA recognizes that in the absence of national laws, or in the exercise of their right to self-determination, some indigenous peoples may wish to engage with companies without State involvement.

As per Chapter 1.1, if national FPIC laws exist, companies shall abide by those laws. Where a host government has established an existing legislative framework that requires or enables agreements between mining companies and indigenous communities (as in Australia), it may not be necessary for companies to run a parallel FPIC process based on the requirements of this chapter. It would, however, be necessary for the company demonstrate to IRMA auditors that the process whereby the agreement was reached conformed with or exceeded the IRMA FPIC requirements (for example, there was no express or implied threat to invoke compulsory powers if agreement could not be reached, and the community was advised at the outset that the company would not undertake an activity in the absence of community consent), and the general intent of this chapter.  One of the most important means of verifying this will be for auditors to determine whether or not the indigenous peoples were satisfied with the process that was followed and the outcome of that process.

NOTES TO READERS ON MAJOR CHANGES TO THIS CHAPTER:

  • Added a scope of application section, which includes information on IRMA’s expectations for existing mines where operators did not carry out FPIC at the appropriate time (i.e., “prior” to mining activities), and also IRMA’s expectations for mines where there is overlap between national laws and the IRMA Standard.
  • Added a requirement to address the situation where States have not carried out their own responsibility to carry out FPIC prior to awarding concessions/leases/access to minerals (see 2.10.2.1).
  • Provided more specifics on the types of situations when the requirement to obtain FPIC applies (See 2.10.2.2).
  • The means of verification (MOV) have been removed from this version of the draft IRMA Standard. If you would prefer to review and comment on a version of the draft Standard that has the means of verification, you can download a pdf version of the Standard with MOV.
     

Free, Prior and Informed Consent (FPIC) Requirements

2.10.1.  Policy Commitment

2.10.1.1.  The operating company shall have a publicly available policy that includes a statement of the company’s respect for indigenous peoples’ rights, as set out in the United Nations Declaration on the Rights of Indigenous Peoples.[6]

2.10.1.2.  The operating company shall ensure that indigenous peoples potentially affected by the company’s mining-related activities are aware of the policy.

2.10.2.  General Requirements

2.10.2.1.  The operating company shall conduct due diligence to determine if the host government has conducted an adequate consultation process aimed at obtaining indigenous peoples’ informed consent prior to granting access to mineral resources. The key findings of due diligence assessments shall be made publically available and, if relevant, shall include the company’s justification for proceeding with a project (including a free, prior and informed consent process with indigenous peoples) in the absence of full compliance by the State to fulfil its consultation and consent duties.[7]

2.10.2.2.  Until it has obtained the free, prior and informed consent of potentially affected indigenous peoples, the operating company shall not undertake any mining-related activities that may affect indigenous peoples’ rights or interests, including those that may: impact on lands, territories and resources;[8]  require the physical relocation of people; cause disruption to traditional livelihoods; impact on critical cultural heritage; or involve the use of cultural heritage for commercial purposes.

2.10.2.3.  The operating company shall obtain FPIC from indigenous peoples for proposed significant changes to mining-related activities that may result in significant new or increased impacts on indigenous peoples rights or interests.

2.10.2.4.  If indigenous peoples’ representatives clearly communicate, at any point during engagement with the operating company, that they do not wish to proceed with FPIC-related discussions, the company shall recognize that it does not have consent, and shall cease to pursue any proposed activities. The company may approach indigenous peoples to renew discussions only if agreed to by indigenous peoples’ representative.

2.10.3.  Free, Prior and Informed Consent (FPIC) Scoping

2.10.3.1.  Where FPIC is required, the operating company shall:

a. Identify indigenous peoples that own, occupy or otherwise use land, territories or resources that may be affected by the operating company’s mining-related activities;

b. Identify the appropriate means of engagement for each community or population of indigenous peoples. Where indigenous peoples’ customary approaches do not enable the meaningful participation of women, vulnerable or marginalized groups within indigenous communities, the operating company shall make a reasonable effort to find other ways of facilitating this involvement; and

c. Disclose to indigenous peoples, in a culturally appropriate manner, the preliminary project concepts and/or proposed activities, and the indigenous peoples’ right to FPIC.

2.10.3.2.  The company shall demonstrate that it has take reasonable steps to collaborate with indigenous peoples’ representatives and other relevant members of affected communities of indigenous peoples to:

a. Identify indigenous peoples’ rights and interests that may be affected by the proposed activities;

b. Identify additional studies or assessments needed to determine the range and degree of potential impacts on indigenous peoples’ rights or interests; and

c. Identify if there are capacity issues that may prevent full and informed participation of indigenous peoples. If issues are identified, the operating company shall provide funding or facilitate other means to enable indigenous peoples to address capacity issues in their preferred manner.

2.10.3.3.  The operating company shall collaborate with the indigenous peoples representatives to design and implement plans to address the information gaps and needs identified through the scoping process.

2.10.4.  Determine FPIC Process [9]

2.10.4.1.  If there is more than one indigenous peoples’ population or community that may be affected by the operating company’s mining-related activities, they may be included in a single process or separate FPIC processes, as desired by the indigenous peoples.

2.10.4.2.  If the potentially affected indigenous peoples have an FPIC protocol in place or under development, the operating company shall abide by it. Otherwise, the operating company shall engage with indigenous peoples’ representative institutions in an effort to reach a mutual understanding regarding the FPIC process to be followed.

2.10.4.3.  The operating company shall make a reasonable effort to document and make information on the mutually-agreed FPIC process publicly available.

2.10.5.  Carry Out the FPIC Process

2.10.5.1.  The operating company shall document, in a manner agreed to by the indigenous peoples, the FPIC process that was followed. This documentation shall be made publicly available unless the indigenous peoples’ representatives have explicitly requested otherwise.

2.10.5.2.  The operating company shall make the outcome (i.e., was consent granted or not) of the FPIC process publicly available.

2.10.5.3.  If the process results in consent being given by indigenous peoples to certain mining-related activities, an agreement outlining the terms and conditions shall be signed or otherwise validated by the operating company and legitimate representative(s) of the indigenous peoples. The agreement shall be binding unless the parties agree otherwise. The agreement shall be made publicly available unless the indigenous peoples’ representatives ‘ explicitly request otherwise.

2.10.6.  Failure to Obtain Indigenous Peoples’ Consent

2.10.6.1.  If a company does not obtain consent from indigenous peoples, mining-related activities shall not proceed.

2.10.7.  Implementation and Ongoing Engagement

2.10.7.1.  The operating company shall maintain a system to document the status of the commitments made during the FPIC consent process and make this available to the indigenous peoples’ representatives.

2.10.7.2.  Engagement with indigenous peoples shall continue throughout all stages of the mining project.

Notes

FPIC, in the context of this standard, requires that engagement with indigenous peoples be free from external manipulation, coercion and intimidation; that potentially affected indigenous peoples be notified that their consent will be sought sufficiently in advance of commencement of any mining-related activities; that there be full disclosure of information regarding all aspects of the proposed project in a manner that is accessible and understandable to the indigenous people; and that indigenous peoples can approve, partially or conditionally approve, or reject a project or activity, and companies abide by the decision.

Because of the requirement that FPIC be free from external manipulation, coercion and intimidation, an FPIC process cannot be undertaken in situations where indigenous or tribal peoples are living in voluntary isolation. Consequently, IRMA will not certify a mine if affected communities include indigenous peoples living in voluntary isolation.

This chapter uses the term indigenous peoples, recognizing that there may be peoples for whom this chapter applies who prefer to use other terms such as tribal, aboriginal, first nations, adivasi, etc., but who have the right to FPIC according to international and/or national laws. There is no universally accepted definition of “indigenous peoples” and the prevailing view is that no formal universal definition is necessary for the recognition and protection of their rights. Generally, however, a fundamental criterion for identifying indigenous peoples is their self-identification as such. Therefore, indigenous peoples may include those not explicitly recognized by national governments. For the purposes of interpreting this standard IRMA proposes the definition presented in the Glossary, adopted from guidance published by the UN Permanent Forum on Indigenous Peoples. Also, IRMA will be developing a guidance document for this chapter that will provide additional information on this and other FPIC-related issues.

Cross Reference to Other Chapters

 Chapter

 Issues

2.4—Human Rights Compliance and Due Diligence If indigenous peoples’ human rights have been infringed upon at existing mines, a company will be expected to mitigate and remediate the impacts as per Chapter 2.4.  This includes human-rights-related impacts on indigenous peoples from past activities at existing mines that have not been adequately mitigation or remediated.
2.8—Community and Stakeholder Engagement Chapter 2.8 applies to engagement with stakeholders, including rights holders such as indigenous peoples. Therefore, in addition to meeting the requirements above, engagement with indigenous peoples shall conform to the requirements in Chapter 2.8. In particular, criterion 2.8.3 is important to ensure that indigenous peoples have the capacity to fully understand their rights and collaborate effectively in FPIC process, including in the collection of relevant information. Also, 2.8.4 ensures that communications and information are in culturally appropriate languages and formats that are accessible and understandable to affected indigenous peoples, and that information is provided in a timely, manner.
2.11—Cultural Heritage As per requirement 2.11.5.1, where impacts may occur to indigenous peoples’ critical cultural heritage, negotiation shall take place through the FPIC process, unless otherwise specified by the indigenous peoples. 
2.12—Resettlement As per requirement 2.12.6.3, if a project requires the displacement of indigenous peoples, the operating company shall not proceed with resettlement unless it obtains FPIC from affected indigenous peoples. 
2.13—Grievance Mechanism and Access to Other Remedies Grievances or concerns related to the implementation of FPIC and any related agreements may be addressed through the operational-level grievance mechanism, or other mechanisms for handling grievances agreed to by the indigenous peoples and the company. Complaints or grievances related to unremediated or unsatisfactory mitigation of impacts from past mining-related activities may also be raised through the operational-level grievance mechanism as per Chapter 2.13.
3.7—Protected Areas As per requirement 3.7.4.1, mining-related activities shall only be undertaken in Indigenous and Community Conserved Areas if agreed to through the FPIC process.
4.1—Environmental and Social Impact Assessment Some of the aspects of FPIC scoping may be carried out as part of the ESIA (e.g., relevant data collection and studies), however, it is likely that engagement with indigenous peoples will take place before the ESIA process begins, since it would be in the company’s best interest to know prior to undertaking the significant step of ESIA whether or not potentially affected indigenous peoples are even interested in pursuing an FPIC process related to mineral development. 
4.2—Reclamation and Closure As per requirement 4.2.8.4, if there is the potential that the mining project will required long-term water treatment, this must be explicitly discussed as part of the Free, Prior and Informed Consent process.

 

Endnotes

1. United Nations Development Group (UNDG). 2008. Guidelines on Indigenous Peoples’ Issues. p. 10.

2. Anaya, J. 2013. Extractive Industries and Indigenous Peoples. Report of the Special Rapporteur on the Rights of Indigenous Peoples. UN Doc. A/HRC/24/41. Para. 28.

3. IFC. 2012. Performance Standard 7 Indigenous Peoples. Objectives and Paras. 9 and 14.

4. ILO. Convention 169.

5. For a detailed discussion of recent international jurisprudence related to FPIC, see: Gilbert, J. and Doyle, C. 2011. "A New Dawn over the Land: Shedding Light on Collective Ownership and Consent.” pp. 24-42.

6. Available at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

7. The company shall make all documents relating to the due diligence process available to the IRMA auditor for review.

8. These include lands, territories and resources that indigenous peoples possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

9. This may be carried out concurrent with 2.10.3.

 

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