19 August 2024 Ivan Arriagada Chair International Council on Mining and Metals Rohitesh Dhawan CEO International Council on Mining and Metals Open Letter on the adoption of the International Council on Mining and Metals (ICMM) Indigenous Peoples and Mining Position Statement The Indigenous Peoples Rights International (IPRI) and the undersigned organizations express our profound concern regarding ICMM’s recently adopted Indigenous Peoples and Mining Position Statement (MPS). While there are improvements in the final MPS from the draft, it remains fundamentally inconsistent with what it rhetorically states several times as clear commitments to respect the rights of Indigenous Peoples. IPRI and other Indigenous organizations engaged with ICMM in good faith, providing written comments, inputs, and participating in both face-to-face and virtual meetings relating to the MPS. During these discussions, IPRI, alongside other Indigenous organizations and leaders, clearly emphasized that the MPS must fully respect the rights of Indigenous Peoples, regardless of state recognition. A key aspect of this respect is the implementation of free, prior, and informed consent (FPIC), ensuring that Indigenous communities have the unequivocal right to say no to mining projects that affect their lands and resources, as well as cultural heritage which shall be respected by states and companies. Despite these clear and firm demands from Indigenous representatives, the final MPS allows for a process where the decision of Indigenous communities to withhold consent can be overridden by the company or authorized by the state. This is deeply concerning, as it permits mining activities to proceed in violation of Indigenous Peoples’ rights to our lands, resources, to our cultural heritage and self-determination. The MPS, therefore, appears to redefine FPIC not as a true consent process but as a mechanism to pressure Indigenous communities into agreement, knowing that the project may continue regardless of their opposition. The MPS thereby serves as a tool for mining companies to assert their power to undermine the rights of Indigenous Peoples when they do not give their consent, instead of what they claim as respecting Indigenous Peoples rights. IPRI acknowledges that the MPS partially addressed various issues, including improvements in relation to defining the free, prior and informed consent process. This includes the recognition that “Indigenous Peoples have the right to withdraw their agreement if there is non-compliance with the established terms or a change in the extent of the impacts on their rights.” [1] Moreover, Commitment 4 appropriately notes that “[i]n accordance with the principles of FPIC, agreement should be achieved through informed and meaningful engagement and good faith negotiation, through means … that facilitate freely giving or withholding agreement.” Which should include “demonstration of consent to anticipated impacts, mitigation measures developed through the due diligence process, and a redress mechanism for potential infringements of the agreement or of Indigenous Peoples’ rights.” Nevertheless, Commitment 4 is rendered useless by Commitment 5, when Indigenous Peoples withhold their consent. “Recognising that there may be circumstances in which agreement is not obtained, this Position Statement sets out the process that ICMM members will take in this instance. ICMM members will develop a policy or approach outlining the steps they have taken to fulfill these commitments where agreement is not obtained.” As further elaborated in the explanatory notes, these include the development of “a policy or approach that outlines appropriate steps to take and how they will manage impacts in those circumstances in which Indigenous Peoples do not provide their agreement to anticipated impacts to their land or other rights.” Alternatives for ICMM members include “mediation,” “pursuing processes that have been designed by States for these situations” or even “escalating issues to the highest relevant corporate-level decision-makers… for a decision on how the activity should progress.” They can also proceed in situations in which “States might determine that a project should be authorized without consent.” Ultimately, granting permission for a company to proceed with a project without the agreement of affected Indigenous Peoples and a superficial commitment to “fully evaluate [the risks] according to the established policies and procedures.” This treatment of FPIC is unjust and incompatible with the rights of Indigenous Peoples as affirmed in international human rights standards. The ICMM and its members, through this position statement, have clearly decided to continue the gross rights violations and injustices that have historically plagued Indigenous Peoples’ interactions with the mining industry. The MPS, as it stands, reduces the ICMM’s purported commitment to respect Indigenous rights to mere rhetoric, as it allows for the selective disregard of those rights when they conflict with corporate or state interests. Indigenous Peoples’ rights are inherent, interdependent, and must be respected in their entirety—no entity, whether state or corporate, has the authority to choose which of these rights they will honor or disregard. We thereby reiterate our demand that mining companies must properly implement the FPIC process and fully respect the collective decision of affected communities including a no consent decision. We shall continue to engage with ICMM and its members in demanding their full respect of Indigenous Peoples rights especially in the context of mining for critical transition minerals in which more than 60% is within and nearby Indigenous Peoples. Signed by: [1] ICMM Indigenous Peoples Mining Position Statement. (See Recognition Statements stating that ICMM members recognize that “Free, prior and informed consent (FPIC) is a human rights norm derived from various foundational rights vested in Indigenous Peoples, and it operates as a process that safeguards Indigenous Peoples’ substantive rights, including their rights to lands, resources and cultural heritage. Through due diligence processes that are guided by the principles of FPIC, Indigenous Peoples can meaningfully participate in decision-making and freely agree, or not agree, to anticipated impacts on their rights and to the terms under which those impacts will be managed. Maintaining agreement is an ongoing mutual responsibility. Indigenous Peoples have the right to withdraw their agreement if there is non-compliance with the established terms or a change in the extent of the impacts on their rights.”)
