Increasingly, companies are recognizing FPIC as a fundamental aspect of human rights due diligence.

Last week the International Council of Metals and Mining (ICMM) released a new mining and indigenous peoples position statement requiring its 22 member companies to integrate Free Prior and Informed Consent (FPIC) into their practices around engagement with indigenous communities. ICMM is an industry association aiming to promote sustainable development in the mining sector. While certain provisions weaken ICMM’s statement, overall ICMM’s commitment to FPIC reflects a gradually turning tide which began to pick up momentum in 2011, when the World Bank’s International Finance Corporation (IFC) announced a similar FPIC requirement. Increasingly, companies are recognizing FPIC as a fundamental aspect of human rights due diligence that can help to create shared value for companies and communities and mitigate the risk of social conflict down the road.

ICMM’s commitment to FPIC is an important step, demonstrating that the mining industry is beginning to recognize that the terms of the debate have shifted. No longer should companies be discussing whether they need to consult communities, but rather whether and how they can ensure community consent. Indigenous peoples’ organizations (along with Oxfam and others) have worked many years to encourage the industry to embrace FPIC, and ICMM’s commitment will be useful to promote accountability among ICMM members and to encourage more companies to follow ICMM’s lead.

With its new position statement ICMM requires member companies to begin incorporating FPIC into their practices in over 800 project sites around the world, with commitments coming into full effect by May 2015. ICMM describes FPIC as both a process and an outcome and states:

The outcome is that Indigenous Peoples can give or withhold their consent to a project, through a process that strives to be consistent with their traditional decision-making processes while respecting internationally recognized human rights and is based on good faith negotiation.

Importantly, the statement recognizes that negotiations should be carried out in good faith and that in certain circumstances indigenous peoples may choose to withhold their consent to a project. The statement applies FPIC both to new projects and changes to existing projects likely to have significant impacts on indigenous peoples.

However, some of the FPIC language later in the policy could create confusion for companies. For example, the statement references a 2008 guidance document from the UN’s Department of Economic and Social Affairs which states that “neither Indigenous Peoples nor any other population group have the right to veto development projects that affect them,” so FPIC should be considered a “principle to be respected to the greatest degree possible in development planning and implementation.” ICMM does not elaborate on the difference between “withholding consent” and “veto.” Nor do they reference more recent guidance from the UN on FPIC which states, “Consent is a freely given decision that may be a ‘Yes’ or a ‘No,’ including the option to reconsider if the proposed activities change or if new information relevant to the proposed activities emerges.”

ICMM generates further ambiguity by stating: “In balancing the rights and interests of Indigenous Peoples with the wider population, government might determine that a project should proceed and specify the conditions that should apply. In such circumstances, ICMM members will determine whether they ought to remain involved with a project.” Effective FPIC implementation requires that companies be willing to respect the decision of indigenous communities regarding whether a project should be developed regardless of a government’s interest in pushing ahead.

Finally, ICMM limits the FPIC requirement to projects that impact indigenous peoples. However, community consent is also emerging more broadly as a principle of best practice for sustainable development in any community. Oxfam recognizes that FPIC is a right in international law specifically for indigenous peoples, but also believes that all communities affected by oil and mining projects must be able to participate in effective decision making and negotiation in processes that affect them.  When they say “no” to a project, companies and governments need to respect this.

As with all of the new policies I’ve written about in previous blogs (IFC, Peru’s Indigenous Peoples Consultation Law, and individual oil and mining company policies), the true test will be in implementation. ICMM’s members must prioritize good faith engagement and respect indigenous peoples’ decisions with regard to oil and mining project development. If policy commitments fail to move beyond mere lip service, rights violations will continue and the risks of violence and social conflict will only increase.