MAKING FREE, PRIOR & INFIRMED CONSENT A REALITY Natalie Lowrey, - - PDF document

MAKING FREE, PRIOR & INFIRMED CONSENT A REALITY

Natalie Lowrey, Communications coordinator, Deep Sea Mining campaign http://deepseaminingoutofourdepth.org I will be using the term or concept 'Indigenous Peoples' throughout the presentation. There is no formal universal definition of the term Indigenous given that a single definition will inevitably be either over-or under-inclusive but I do want to acknowledge that many communities in Pacific Islands nations don't necessarily identify with the term 'Indigenous' and that they have the right to identify as they choose. FREE, PRIOR, AND INFORMED CONSENT Free, Prior and Informed Consent means respect for the right of self-determination, part of which is the right to collective decision-making. It embodies and is fundamental to, recognition of the sovereignty and rights of Indigenous Peoples over their land, territories and resources and the need to be consulted in a manner that is in keeping with the people's own indigenous culture. It is a collective right of Indigenous Peoples to decide what happens to their lands and natural resources, to control their own future and the future of their people. This statement talks about the power to negotiate and highlights that this may therefore be an ongoing process. It is part of a process of operationalising the right of self-determination by guaranteeing respect for their decision-making processes and their associated right to accept or reject a project that will affect them. Free, Prior and Informed Consent is not new. It evolved from human rights discussions on development where it was agreed that everyone has the right to determine their own development. This can be interpreted as being able to say “yes” or “no” to any project proposed or external

• development. Free, Prior and Informed Consent has been identified as an important social safeguard

for mining and infrastructure projects for many years, especially in the context of protecting indigenous peoples’ rights and territories. UNDERSTANDING FREE, PRIOR, AND INFORMED CONSENT Each part of the term has important meanings for a community. The following is an explanation of what each term means: Respecting the right to FPIC cannot be reduced to a process with boxes that can be ticked as they are completed. The right to FPIC is part of peoples’ collective right to self-determination, which includes the right to determine what type of process of participation, consultation, and decision- making is proper for them and this includes their own time-frame to make these decisions. By recognising the right of indigenous peoples and local communities as owners and managers of their customary territory, FPIC assures them a decisive voice at every stage of development planning and implementation of projects that affect them. The requirement for “informed consent” implies that for consent to be given, an informed understanding of the potential impacts is required. This requirement must apply to all stages of the project life-cycle, from concession application to project closure. 1

FPIC is the minimum standard for the involvement of indigenous peoples in decision-making processes about large-scale projects and is necessary to guarantee that the negative impacts of mining will be avoided, and that indigenous peoples’ economic, social and cultural rights will be protected in situations where mining projects are operating on or near indigenous land and waters WHAT FPIC IS NOT What is the difference between Free, Prior, and Informed Consent and stakeholder consultation and negotiation?

• Consent is an outcome of a process. The process may involve consultation and negotiation, but

consent itself is an opportunity to say ‘yes’ or ‘no’ to a proposal or project.

• Consent may be required at several points in a project cycle, and when consent is not reached,

negotiation will be required.

• Consultation involves facilitating a process to both inform and receive feedback from the people

about the proposal; negotiation is where conditions are proposed and compromises are made by different parties.

• Consent remains the point at which people have the power to say ‘yes’ or ‘no.’
• FPIC entitles indigenous peoples to determine the outcome of decision-making that affects them

— it is not merely a right to be consulted about projects that others will ultimately make decisions

• n

The Right to VETO Communities have the right to veto. This means that they indigenous peoples can reject a proposed project from the outset. Given that refusal to engage in consultations constitutes an exercise of their right to self-determination, participation in such consultations should not be assumed to be a mandatory requirement. Mandatory participation in consent seeking processes would be inconsistent with the notion of seeking voluntary consent in a manner that is free of coercion. FREE, PRIOR, AND INFORMED CONSENT AND ITS LEGAL BASIS IN INTERNATIONAL LAW International Standards The contemporary requirement for Indigenous People's Free, Prior, and Informed Consent is derived from the rights of Indigenous Peoples' which are recognised under international and regional human rights treaties and declarations. It is primarily derived from the applicability to Indigenous Peoples' of the right to self-determination affirmed in the International Human Rights Covenants. Contemporary international human rights law and other standards constitute a framework of

• bligations which establishes the MINIMUM acceptable standards of conduct for all actors,

including States and corporations in the context of projects within indigenous territories. 2

Free, Prior, and Informed Consent is recognised in … When affirming that the requirement of Free, Prior and Informed Consent flows from other rights the treaty bodies responsible for these covenants have increasingly framed the requirement in light

• f the right to self-determination.

The United Nations Declaration on the Rights of Indigenous Peoples promotes the right of Indigenous Peoples to give or deny their Free, Prior, and Informed Consent for projects that affect them, their land and natural resources. Following the adoption of the UN Declaration of the Rights

• f Indigenous Peoples in 2007 there has been increased emphasis on the requirements to obtain

Free, Prior, and Informed Consent in relation to extractive and other projects impacting on Indigenous Peoples An example of this is the fact that over thirty percent of the cases addressed by Committee on the Elimination of Racial Discrimination (CERD) in the context of its Early Warning and Urgent Action procedure have involved issues related to the failure to obtain Indigenous Peoples' Free, Prior, and Informed Consent in relation to extractive projects. Free, Prior, and Informed Consent is both a right in itself, and can help protect other human rights including rights to property, culture, religion, livelihood, health and physical wellbeing. Duty of States UN Declarations are not legally binding. However, they represent the commitment of governments to abide by certain principles and standards, and are considered to be ‘normative’. For example, the UN Universal Declaration of Human Rights is not a binding treaty but over time has come to have enormous force and influence in international human rights law. Legislation no matter how clear it is does not ensure real Free, Prior and Informed Consent if government is able to exert pro-mining pressure on the agencies involved in the process of

• btaining consent.

Side Note: Free Prior and Informed Consent is consistent with relevant parts of Papua New Guinea’s National Goals and Directive Principles. Responsibility of Companies The Special Rapporteur on the Rights of Indigenous Peoples' has explained that consultation procedures must be agreed before companies and State enter into agreements in relation to proposed extractive projects. Free Prior and Informed Consent is arguably a necessary component of the Corporate Social Responsibility agenda for the extractive industry, as it acts as both a fundamental tool of good engagement practice and aides to mitigate the social risk imbedded in projects that neighbour Indigenous Peoples. Without the consent of affected communities, mining companies face potential legal, reputational and financial risks. There is much evidence including reports that address the positive correlation between the performance of companies and their respect for Indigenous Peoples' 'right to withhold consent to development' in or near their territories. Despite multinational mining companies placing increasing emphasis on engagement with 3

Indigenous Peoples as part of their policies very few respect the right of Indigenous Peoples' to give

• r deny their Free, Prior, and Informed Consent for projects in, or near their territories.

There is now a growing acceptance of the requirement for Indigenous Peoples Free, Prior and Informed Consent by the extractive industries. The International Financial Corporation has now got Free Prior and Informed Consent as a requirement in its Performance Standards and recently International Council on Mining and Metals came out with a stronger Free Prior and Informed Consent statement after receiving much criticism for their prior position. Since becoming an international standard in non-binding law, free, prior, and informed consent (FPIC) has been increasingly recognised by major actors in the extractive industry, such as Rio

• Tinto. Despite this, the industry as a whole has not endorsed FPIC and has publicly stated

reservations in regards to the principle and its implementation. We have reached a tipping point in terms of the acceptance of Free, Prior and Informed Consent as the standard to which all corporate actors must comply in order to meet their responsibility to respect Indigenous Peoples human rights. Non-recognition by States of the existence of Indigenous Peoples' or their land rights, or the absence of legislation to give them effect, does not constitute a legitimate basis for corporate failure to respect their rights. CASE STUDY: Jabiluka Even though Rio Tinto didn't acquire ERA and the Jabiluka lease until 2000 it is important to understand the history of the Jabiluka project and the campaign led by the Traditonal Owners of that area the Mirrar people. The 1976 Aboriginal Land Right Act requires the consent of traditional land owners prior to the authorisation of mining in their territories. That legislation provides for obtaining consent with a centralised bureaucracy, a land council, having the exclusive roles of identifying, consulting and representing the Traditional Owners. In 1982, Mirrar approval was formally given through the Northern Land Council. This 'consent' was subsequently rejected by Traditional Owners as flawed and invalid, having been granted, in the midst of what the Mirrar have described as 'confusion and unconscionable pressure'. The Northern Territory government and Northern Land Council failed to implement the consent provisions of the 1976 Aboriginal Land Rights Act in a manner that ensured true Free Prior and Informed Consent – an example of consent that was neither free or informed at the local level. The Northern Land Council told ERA in 1991 that the Mirrar did not consent to the project, by this time the mining lease has been granted on the basis of the agreement with the Northern Land

• Council. In 1997/98 ERA, under the control of North Ltd, commenced digging an underground

portal with Northern Territory government approval. This led to an escalation in the Mirra Traditional Owner opposition. This opposition involved:  an eight month blockade of Jabiluka in 1998 involving over 5000 people, over 500 of whom were arrested including Senior Traditional Owner Yvonne Margarula;  a Federal Court case;  challenges to the environmental impact assessment;  a site visit from a high-level UNESCO scientific mission; 4

 resolutions in the European Parliament and US congress; and  an Australian Senate inquiry Throughout this period the Northern Land Council received payments under the Jabiluka agreement which the Mirrar Traditional Owners objected to. The blockade at Jabiluka and blockades at the offices of North Ltd in Melbourne, investor focused campaigns and shareholder activism raised the profile of the case significantly, until Rio Tinto purchased North Ltd in 2000. Jabiluka had become a prominent issue, drawing significant international and public attention and pressure. This pressure resulted in the then Chair of Rio Tinto, Robert Wilson, to make pubic statements in 2001 that as a majority shareholder of ERA they would not support the development of the project without Mirrar consent. This in turn led to a discussion

• n an agreement with the Traditional Owners. The Northern Land Council took no part in these

discussions but was required to execute the agreement reached. In 2003 ERA began back filling the work that had been done and in February 2005, following three years of negotiations ERA formally recognised the Traditional Owners' objections and agreed not to proceed with mining developments at Jabiluka without their approval. The long term care and maintenance of the site of ongoing. This is an unusual case as it doesn't relate to the consent to the grant of the mining release by the government, which had already been granted. The agreement relates to development of the project by the company holding the lease. In other words companies who have been granted a mining lease can still follow Free Prior and Informed consent. Other interesting aspects of this case study are that it challenges corporate conceptions of traditional authorities and custom as being exclusively male dominated arenas within which women are excluded from major decision-making processes. It also demonstrates the potential role that common cause between aboriginal peoples and the wider general public can play in realising the consent requirement. Jabiluka and the agreement between the Mirrar and Rio Tinto is proof that Free, Prior and Informed Consent can be reached even when a project has been given the green light. That means going beyond Stakeholder consultation and respecting the rights of affected communities. Remember without the consent of affected communities, mining companies face potential legal, reputational and financial risks. CONCLUSIONS – Free, Prior & Informed Consent and Deep Sea Mining · Development of legislation should be the first point at which FPIC is recognised and implemented · Pacific Island Governments should develop national legislation prior to any further approvals of exploration or operation licences · This legislation must clearly define obligations upon governments and companies regarding the application of FPIC, precautionary principle and best environmental practices throughout the mining cycle · FPIC is retrospectively applied to all existing exploration and operation licences – this along with application of the precautionary approach will help address gaps in the environmental and social 5

risk assessments of existing projects 6