ICMM Indigenous Peoples and Mining Position Statement

7/27/2019 ICMM Indigenous Peoples and Mining Position Statement

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POSITION STATEMENTMay 2013

Indigenous Peoples and

Mining

Policy 2010-1



OVERVIEW

This position statement sets out ICMM members’approach to engaging with Indigenous Peoples1

and to free, prior and informed consent (FPIC)and replaces ICMM’s 2008 Mining and Indigenous Peoples Position Statement . ICMM’s vision isfor constructive relationships between mining

and metals companies and Indigenous Peoplesthat are based on mutual respect, meaningfulengagement, trust and mutual benefit.Recognizing the potential vulnerability ofIndigenous Peoples, the commitments in thisposition statement may be summarized asrequiring members to:

• respect the rights, interests, special connections tolands and waters, and perspectives of IndigenousPeoples, where mining projects are to be located onlands traditionally owned by or under customary useof Indigenous Peoples

• adopt and apply engagement and consultationprocesses that ensure the meaningful participation ofindigenous communities in decision making, througha process that is consistent with their traditionaldecision-making processes and is based on good faithnegotiation

• work to obtain the consent of Indigenous Peopleswhere required by this position statement.

In ICMM’s view, FPIC comprises a process, and anoutcome. Through this process Indigenous Peoples are:

(i) able to freely make decisions without coercion,intimidation or manipulation; (ii) given sufficient timeto be involved in project decision making before keydecisions are made and impacts occur; and (iii) fullyinformed about the project and its potential impactsand benefits. The outcome is that Indigenous Peoplescan give or withhold their consent to a project, througha process that strives to be consistent with theirtraditional decision-making processes while respectinginternationally recognized human rights2 and is basedon good faith negotiation3. The commitments in thisposition statement relating to consent apply to newprojects and changes to existing projects that are likelyto have significant impacts on indigenous communities.

The position statement will not apply retrospectively4.Where both indigenous and non-indigenous peoples arelikely to be significantly impacted, members may chooseto extend the commitments embodied in this positionstatement to non-indigenous people.

BACKGROUND ON ICMM PRINCIPLES ANDPOSITION STATEMENTS

All ICMM member companies implement the ICMMSustainable Development Framework as a condition ofmembership. This includes commitments to implement10 principles and any related position statementsthroughout their businesses, to report in line with theGlobal Reporting Initiative’s (GRI) SustainabilityReporting Framework and to obtain independent

external assurance that the ICMM commitments arebeing met (this framework is described in detail atwww.icmm.com).

ICMM principles of particular relevance to IndigenousPeoples and project decision making are:

Principle 3: Uphold fundamental human rightsand respect cultures, customs and values in dealingswith employees and others who are affected by ouractivities.

Principle 6: Seek continual improvement of our

environmental performance.

Principle 9: Contribute to the social, economic andinstitutional development of the communities in whichwe operate.

In accordance with the principles, ICMM has alsodeveloped a number of position statements that furtherelaborate member commitments to particular issues.Company members are obliged to comply with thesestatements by incorporating them into their operationalpractices.

1 As defined in article 1 of the International Labour Organization’sIndigenous and Tribal Peoples Convention (ILO 169).2 The UN Guiding Principles on Business and Human Rights outlines theresponsibility of business to “avoid infringing on the rights of others andto address adverse impacts with which they are involved”.3 This involves all parties being willing to: (i) engage in negotiation andto meet at reasonable times and frequency; (ii) provide informationneeded for informed negotiation and explore key issues of importance;

(iii) agree mutually acceptable procedures for negotiation that includesufficient time for decision making; and (iv) compromise in pursuit ofreaching a formal and documented agreement. This is consistent withthe attributes of good faith negotiation outlined in IFC’s Guidance Note 7on Indigenous Peoples (paragraph GN 25).4 Members are expected to implement the commitments in this positionstatement by May 2015. The commitments will not apply to projects thathave started the approvals and permitting processes at the time of theadoption of the position statement.

P O

S I T I O N

S T A T E M E N T

All ICMM member companies commit to implement and

measure their performance against a set of 10 sustainable

development principles. Where members seek greater

clarity on some of the key challenges facing the industry,

ICMM develops supporting position statements.



RECOGNITION STATEMENTS

ICMM members recognize that:

1 Indigenous Peoples often have profound and specialconnections to, and identification with, lands andwaters and these are tied to their physical, spiritual,cultural and economic well-being. They may also havevaluable traditional knowledge and experience inmanaging the environment in a sustainable manner.

Indigenous Peoples in many regions of the world havebeen historically disadvantaged and may often stillexperience discrimination, high levels of poverty andother forms of political and social disadvantage.Mining and metals projects can have significantimpacts on local communities, both positive andnegative.

2 The interests of Indigenous Peoples in mining andmetals projects are generally recognized as one ormore of the following: owners of formal title to landor recognized legal interests in land or resources;claimants for ownership of land or resources;

customary owners or occupants of land or resources;users of land or resources for purposes such ashunting, fishing, gathering of seeds/fruits andmedicines, or for spiritual or ritual purposes; inmaterial objects or resources of cultural significance;in landscapes which have special significance becauseof association, tradition or beliefs; members of hostcommunities whose social, economic and physicalenvironment may be affected by mining andassociated activities.

3 Indigenous Peoples have individual and collectiverights and interests and it is internationally recognizedthat their rights should be protected by governments

and respected by companies. Two of the keyinternational instruments in this area areInternational Labour Organization (ILO) ConventionNo. 169 on Indigenous and Tribal Peoples (1989), andthe UN Declaration on the Rights of IndigenousPeoples (UNDRIP) adopted by the UN GeneralAssembly in September 20075. “UNDRIP sets outrights that countries should aspire to recognize,guarantee and implement” and “establishes aframework for discussion and dialogue betweenIndigenous Peoples and States”.6

4 Successful mining and metals projects require the

support of a range of interested and affected parties.This includes both the formal legal and regulatoryapprovals granted by governments and the broadsupport of a company’s host communities. IndigenousPeoples often have cultural characteristics,

5

As of October 2012, 22 countries had ratified ILO 169 which is legallybinding in those states.6 As stated in the UN Development Group’s Guidelines on Indigenous Peoples’ Issues (2008).7 As expressed in the UN’s Department of Economic and Social AffairsResource Kit on Indigenous Peoples’ Issues (2008).8 As defined in ILO 169 and outlined in section 1.3 of ICMM’s Good Practice Guide: Indigenous Peoples and Mining (2010).

governance structures and ways of interacting anddecision making that sets them apart from thenon-indigenous population. This requires companiesto engage in ways that are culturally appropriate andto pay special attention to the capacities, rights andinterests of Indigenous Peoples, within the context ofbroader community engagement. States have the rightto make decisions on the development of resourcesaccording to applicable national laws, including thoselaws implementing host country obligations under

international law. Some countries have made an explicitconsent provision under national or sub-national laws.In most countries however, “neither IndigenousPeoples nor any other population group have theright to veto development projects that affect them”,so FPIC should be regarded as a “principle to berespected to the greatest degree possible indevelopment planning and implementation” 7.

5 States also have an important role to play in theprocess of engaging with Indigenous Peoples. Theymay be involved in determining which communitiesshould be considered indigenous, in shaping the

process for achieving FPIC and in determining howthis relates to regulated processes for ensuringcommunity participation in decision making.Given their role in balancing the rights and interestsof Indigenous Peoples with the wider population,states may also play an important role in supportingthe resolution of disagreements that may arisebetween Indigenous Peoples and companies in thepursuit of FPIC.

6 In some countries, the term indigenous may becontroversial and local terms may be in use that arebroadly equivalent (such as tribal peoples, firstpeoples, native people, aboriginal people). In other

situations, there may be no recognition of indigeneityby states, or the term may have negative associationsthat discourage people from acknowledgingindigenous identity. Irrespective of the local context,ICMM members reject any discrimination ordisadvantage that may be related to culture, identityor vulnerability and will seek to apply the principlesembodied in this position statement to groups thatexhibit the commonly accepted characteristics ofIndigenous Peoples8.



9 Includes natural areas with cultural and/or spiritual values such assacred groves or water bodies.10 Relocation of Indigenous Peoples and impacts on critical culturalheritage should be avoided to the extent possible.

COMMITMENTS

In addition to existing commitments under the ICMMSustainable Development Framework, ICMM membercompanies commit to:

1 Engage with potentially impacted Indigenous Peopleswith the objectives of: (i) ensuring that the developmentof mining and metals projects fosters respect for the

rights, interests, aspirations, culture and naturalresource-based livelihoods of Indigenous Peoples;(ii) designing projects to avoid adverse impacts andminimizing, managing or compensating for unavoidableresidual impacts; and (iii) ensuring sustainable benefitsand opportunities for Indigenous Peoples through thedevelopment of mining and metals projects.

2 Understand and respect the rights, interests andperspectives of Indigenous Peoples regarding a projectand its potential impacts. Social and environmentalimpact assessments or other social baseline analyseswill be undertaken to identify those who may beimpacted by a project as well as the nature and extent

of potential impacts on Indigenous Peoples and anyother potentially impacted communities. The conductof such studies should be participatory and inclusiveto help build broad cross-cultural understandingbetween companies and communities and in supportof the objectives described in commitment 1 above.

3 Agree on appropriate engagement and consultationprocesses with potentially impacted IndigenousPeoples and relevant government authorities as earlyas possible during project planning, to ensure themeaningful participation of Indigenous Peoples indecision making. Where required, support should be

provided to build community capacity for good faithnegotiation on an equitable basis. These processesshould strive to be consistent with Indigenous Peoples’decision-making processes and reflect internationallyaccepted human rights, and be commensurate withthe scale of the potential impacts and vulnerability ofimpacted communities. The processes should embodythe attributes of good faith negotiation and bedocumented in a plan that identifies representatives ofpotentially impacted indigenous communities andgovernment, agreed consultation processes andprotocols, reciprocal responsibilities of parties to theengagement process and agreed avenues of recoursein the event of disagreements or impasses occurring

(see commitment 6 below). The plan should alsodefine what would constitute consent from indigenouscommunities that may be significantly impacted.Agreed engagement and consultation processes shouldbe applied in collaboration with potentially impactedindigenous communities, in a manner that ensurestheir meaningful participation in decision making.

4 Work to obtain the consent of indigenouscommunities for new projects (and changes toexisting projects) that are located on landstraditionally owned by or under customary use ofIndigenous Peoples and are likely to have significantadverse impacts on Indigenous Peoples, includingwhere relocation of Indigenous Peoples and/or

significant adverse impacts on critical culturalheritage9 are likely to occur10. Consent processesshould focus on reaching agreement on the basisfor which a project (or changes to existing projects)should proceed. These processes should neitherconfer veto rights to individuals or sub-groups norrequire unanimous support from potentiallyimpacted Indigenous Peoples (unless legallymandated). Consent processes should not requirecompanies to agree to aspects not under theircontrol.

5 Collaborate with the responsible authorities toachieve outcomes consistent with the commitments

in this position statement, in situations wheregovernment is responsible for managing IndigenousPeoples’ interests in a way that limits companyinvolvement. Where a host government requiresmembers to follow processes that have beendesigned to achieve the outcomes sought throughthis position statement, ICMM members will not beexpected to establish parallel processes.

6 Address the likelihood that differences of opinionwill arise, which in some cases may lead tosetbacks or delays in reaching a negotiatedagreement in good faith. Companies and potentially

impacted indigenous communities should agree onreasonable tests or avenues of recourse at theoutset, to be applied where differences of opinionarise. This might include seeking mediation oradvice from mutually acceptable parties. Wherecommitment 4 applies and consent is notforthcoming despite the best efforts of all parties,in balancing the rights and interests of IndigenousPeoples with the wider population, governmentmight determine that a project should proceed andspecify the conditions that should apply. In suchcircumstances, ICMM members will determinewhether they ought to remain involved with aproject.

P O

S I T I O N

S T A T E M E N T



FUTURE ICMM WORK

ICMM commits to continued engagement withIndigenous Peoples and their representatives and willcontinue to develop approaches relating to the interestsand concerns of Indigenous Peoples. Among theelements of work currently planned or anticipated forthe next few years are:

• updating ICMM’s good practice guidance on

Indigenous Peoples and Mining to supportmembers in implementing this position statement

• the promotion of good practice more broadly acrossthe mining and metals sector

• continued dialogue with Indigenous Peoples’organizations, development institutions and/orgovernments at the national and international levels.



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www.icmm.com

ICMM

The International Council on Mining and Metals (ICMM)was established in 2001 to improve sustainable developmentperformance in the mining and metals industry. Today, itbrings together many of the world’s largest mining andmetals companies as well as national and regional miningassociations and global commodity associations. Our visionis one of leading companies working together and withothers to strengthen the contribution of mining, mineralsand metals to sustainable development.

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ICMM Indigenous Peoples and Mining Position Statement