A major mining industry group has released new commitments on Indigenous rights. As mining companies race to access transition minerals, they must adopt clear policies respecting a community's right to say "no" to mining.
The International Council on Mining and Metals (ICMM), which represents many of the world’s largest mining companies and a third of the global metals and mining industry, released their revised Indigenous Peoples and Mining Position Statement last week. This policy is particularly important given the rapid rollout of renewable energy technologies and transport electrification that will likely increase new extraction of minerals.
The problem? Roughly half of identified mining projects globally involving transition minerals needed to phase out of fossil fuels (those needed for electrical vehicle batteries and renewable energy technology) are on Indigenous peoples’ lands. Amid this mining boom, weak industry policies could lead to increased human rights abuses in a sector with an already problematic track record. Mining is the most dangerous sector for human rights defenders, and Indigenous peoples represented more than one-third of global assassinations of defenders in 2023 despite representing only 5% of the population.
After more than a decade tracking mining industry standards relating to Indigenous peoples’ rights, I was eager to see ICMM’s new commitments. Would they measure up to existing corporate standards on Indigenous rights, like those of the United Nations or the Initiative for Responsible Mining Assurance (IRMA)? Or would they fall short like most mining company policies on Indigenous rights? The result is a mixed bag.
On the one hand, ICMM’s new position statement recognizes Indigenous peoples’ right to self-determination and affirms a clear definition of the principle of Free, Prior, and Informed Consent (FPIC). It defines FPIC as both a process and an outcome; “that Indigenous Peoples can collectively grant or withhold their consent (demonstrated in an agreement) for a specified activity as part of a given decision-making process.” For too long, the mining sector has conflated consulting communities with ensuring their FPIC. Companies are eager to engage in dialogue with communities to get to “yes,” but often refuse to acknowledge the right of communities to oppose projects. It’s heartening to see ICMM’s explicit recognition of the ability of communities to withhold consent. The policy also states that Indigenous peoples can “withdraw their agreement if there is non-compliance with the established terms or a change in the extent of the impacts on their rights.”
The policy also acknowledges that mining projects can contribute to the marginalization of subgroups of the population, including women and girls, and states that community engagement processes should pay “particular attention to the equitable participation of Indigenous women and others in vulnerable situations.” Oxfam research on mining company policies has found that few companies publicly commit either to addressing the gendered impacts of their operations on communities or to gender-responsive FPIC. This is an important area for policy reform.
The policy calls on companies to conduct human rights due diligence , recognizes the UN Guiding Principles on Business and Human Rights, and makes clear that while States have the responsibility to protect human rights, companies also have the responsibility to respect human rights. It notes that “regardless of how States meet their commitments, or where they fail to do so, the independent responsibility for companies to conduct due diligence and establish that they respect the rights of Indigenous Peoples remains.” In other words, a State’s failure to protect Indigenous peoples’ right to FPIC does not leave the company off the hook for respecting rights.
That said, however, ICMM’s guidance to companies on how to implement community consultation and consent processes when differences of opinion arise is extremely problematic. In the explanatory notes for the commitments, ICMM references unspecified “situations in which States might determine that a project should be authorised even without consent.” The explanatory notes also emphasize the State’s obligation to make a genuine attempt to achieve consent and highlight risks associated with moving forward a project without consent. Nevertheless, ICMM has muddied the water with language companies could interpret as a greenlight to bypass effective FPIC processes. The notes state that any company determination to proceed without consent “must adhere to established criteria of necessity and proportionality for permissible limitations on Indigenous Peoples’ rights,” but under what circumstances might a mining project be so necessary as to justify a violation of Indigenous peoples’ rights? Here the guidance creates ambiguity when the point is clear – if communities do not support the project, then it should not move forward.
The policy also misses an opportunity to establish protections for Indigenous peoples living in voluntary isolation, who face severe health risks from contact with outsiders. It asks companies to “carefully consider their potential impacts to such Peoples, and respect for their rights,” but falls short of calling on companies to refrain from mining in areas that may impact these peoples, in line with the Inter-American Commission on Human Rights’ guidance.
Mining companies must adopt clear and comprehensive FPIC policies, recognizing Indigenous peoples’ rights to make decisions about their lands and livelihoods with no ambiguity, caveats, or provisos. As companies look to incorporate ICMM’s guidance into their own standards, and as governments look to strengthen regulation in this booming sector, they must publicly acknowledge and accept a community’s right to say “no” to mining projects. Mining sector standards that fully embrace Indigenous peoples’ right to FPIC will help to build trust with Indigenous communities, reduce the risk of social conflict, and create a positive precedent to ensure a more just global energy system.