Children play soccer on the land of the Taquara, a group of indigenous people in Mato Grosso do Sul, Brazil. Photo: Tatiana Cardeal/Oxfam

When it comes to community consultation policies, mining companies are moving in the right direction – but one thing continues to be a sticking point: the ability of communities to say “no.”

I don’t really think it’s up for debate that “no” means “no”. Unfortunately, when it comes to mining companies and indigenous communities, the jury may still be out.

These days, it’s relatively common for mining companies to discuss and make commitments to respect community and indigenous rights in the places they work around the world. And recently, the International Council on Mining and Metals (ICMM)—a mining association aiming to promote sustainability in the sector — released an update of its good practice guide on indigenous peoples and mining. ICMM represents 23 global mining companies operating in more than 800 project sites worldwide, including some heavy hitters like Glencore, BHP Billiton, Rio Tinto, and Anglo American; all of which earn tens of billions of dollars in revenue each year.

Given its composition, ICMM policy changes have the potential for considerable global reach. And in their 2013 statement, they took an important step by embracing Free, Prior, and Informed Consent (FPIC). It was important because – when effectively implemented – FPIC processes enable communities to have a real say in not only how, but whether, oil, gas, and mining projects move forward. Oxfam’s recently released Community Consent Index found that mining company commitments to FPIC have increased significantly over the last three years. ICMM’s commitment helped drive this important shift.

However, as with most policy commitments, the devil is in the details. As I blogged when the 2013 policy came out, it left a few critical questions on FPIC unanswered – namely, how companies should handle situations where communities choose to withhold their consent. These grey areas in the first policy made me hopeful that this guidance might clear things up.

There is a lot to like about ICMM’s new FPIC guidance. For example, it underscores the importance of starting community engagement as early as possible, and of “reaching agreement [with indigenous communities] on how consent will be demonstrated.” It advises companies to seek the views of women and youth in circumstances where traditional decision-making structures exclude these voices, and recommends the use of gender impact assessment to understand how projects may impact men and women differently. The guide also includes several useful case studies, including cases on FPIC implementation in Colombia and Suriname (although these are clearly presented from the company perspective).

Disappointingly however, the guidance remains silent on the most fundamental criteria for achieving true consent — respect for a community’s decision to say “no” to mining. ICMM’s statement acknowledges that FPIC processes must enable indigenous peoples to “give or withhold their consent to a project,” but rather than requiring companies to obtain consent it requires them to “work to” obtain consent and then determine themselves “whether they ought to remain involved with a project.”

This gives companies far too much discretion, and in many ways makes the entire consultation process worth very little. If companies truly want to respect indigenous peoples’ rights, it should never be an option to proceed with a project that has not been given full free, prior and informed consent of the communities affected. As the chair of the Inter-American Commission on Human Rights Rose-Marie Belle Antoine stated earlier this year, “Yes, you have a right to say no. It’s not a question. Otherwise what is the meaning of consent?”

I had hoped ICMM’s new guidance would drive this point home, but  ICMM companies continue to hedge their bets, avoiding making a clear commitment to withdraw when communities don’t tell them what they want to hear. In such circumstances, the guidance does advise companies to consider the heightened risks of proceeding without consent—both reputational and in terms of the potential to generate social conflict. ICMM also recommends in these circumstances that companies conduct independent impact assessments to ensure that “the project will not breach the rights and interests of Indigenous Peoples.”

But here’s the problem: how could any mining or oil project that proceeds without indigenous peoples’ consent not violate their rights?

As former Special Rapporteur on the Rights of Indigenous Peoples James Anaya explained in his 2013 report on indigenous peoples and extractive industries, the scope of permissible exceptions to applying FPIC is extremely narrow for oil and mining projects. Any limitations on indigenous rights must be “strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for the meeting the just and most compelling requirements of a democratic society.” This does not sound like a mining project to me. Professor Anaya further clarifies that land expropriation for a “public purpose” does not suffice as justification for limiting these rights, noting that “a valid public purpose is not found in mere commercial interests or revenue-raising objectives.”

So, while ICMM missed a big opportunity to better define consent in their policy, there is still space for companies to get it right in practice. Hopefully they will heed the positive messages the ICMM lays out around early and participatory FPIC processes and make it to the point themselves where “no” truly means “no”.