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A new mining trade association statement on mining and Indigenous Peoples fails to advance Indigenous rights and creates unnecessary confusion, risking further violations of Indigenous Peoples’ rights worldwide. The statement comes as demand for energy transition minerals, which are used in EV batteries and other renewable energy technologies, is skyrocketing. More than half of energy transition minerals worldwide are on Indigenous Peoples’ lands.
The International Council on Mining and Metals (ICMM) is the principal trade association of mining companies. Amongst its members are the world’s largest mining multinationals, and its membership represents roughly 30% of the global metals market. The ICMM’s members are expected to adhere to the principles and positions adopted by the organization. As such, the ICMM’s position statements have the potential to be highly influential amongst the largest and most visible global mining companies. Furthermore, the ICMM is trying to develop a “consolidated standard” for responsible mining to serve as a global benchmark for companies to be measured against, although many civil society groups remain skeptical of the process given its industry-controlled governance and the risk of consolidation towards a lowest common denominator, rather than a high-bar, standard.
The ICMM’s updated Indigenous Peoples’ Position Statement was published on August 8th, 2024, replacing the mining industry association’s original Indigenous Peoples and Mining Position Statement published in 2013. While the new ICMM document is little more than a restatement of already existing international Indigenous Rights norms, it risks creating more harm than good. It includes ambiguous and seemingly contradictory language in critical sections, which leave open to broad interpretation how companies should proceed when:
- a State (i.e. a country) does not recognize the right to Free, Prior, and Informed Consent (FPIC), does not recognize the existence of affected Indigenous Peoples within an impacted area, or otherwise fails to carry out an adequate FPIC process;
- a State approves a project despite lack of consent by an impacted Indigenous community to said project; and
- acquiring a mine site where FPIC was not carried out or carried out inadequately prior to the company’s acquisition of said mining operation.
These are common scenarios faced by mining companies which put at risk the rights of Indigenous Peoples. A policy that truly acknowledges the inherent rights of Indigenous sovereignty and self-determination must provide clear, unambiguous guidance.
Instead, the statement’s shortcomings risk validating its members’ ongoing and future violations of the inherent rights of Indigenous Peoples. These and a series of other critical flaws and shortcomings have been identified by civil society and Indigenous rights organizations including the SIRGE Coalition, First Peoples Worldwide, Asia Indigenous Peoples Network on Extractive Industries and Energy (AIPNEE), and Oxfam America.
The Right of Indigenous Peoples to Withhold Consent as Part of the Right to Free, Prior, and Informed Consent
Encouragingly, the statement recognizes the right to withhold consent several times. For example: “[a]s a process, FPIC also enables Indigenous Peoples to freely give or withhold their agreement, should they choose to do so” (on page 15).
Unfortunately, on the very next page it asserts that “[t]here are also situations in which States might determine that a project should be authorised even without consent.”
The ICMM conditions this assertion by clarifying that “international human rights standards establish that such a determination can be made only after the State has made genuine attempts to obtain consent, and the determination must adhere to established criteria of necessity and proportionality for permissible limitations on Indigenous Peoples’ rights, as reflected in UNDRIP.” The statement also goes on to reiterate the independent duty of companies to engage in human rights due diligence regardless of State action. But the decision to include this language and support it by citing Article 46(2)—a controversial provision in the UN Declaration of the Rights of Indigenous Peoples (UNDRIP) that offers little practical clarity as to the scope of its application and has been subject to repeated criticism by Indigenous Peoples and their allies—contradicts the Statement’s purported respect for the right to withhold consent. It conditions this inherent right with hypothetical scenarios in which companies may proceed with mining projects despite an explicit lack of consent.
Companies’ Independent Duty to Respect Human Rights under the UN Guiding Principles on Business and Human Rights
Under international law, States are the actors ultimately responsible for ensuring the protection of human rights. However, one of the great contributions of the UN Guiding Principles on Business and Human Rights (UNGPs) is the explicit requirement for non-state corporate actors to comply with an independent duty to respect fundamental human rights, regardless of the failure of a given State to recognize or protect said rights.
The official commentary to Section II(A)(1.1) of the UNGPs reads as follows:
“The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.”
The ICMM’s Position Statement recognizes this by stating on page 3 that “[r]egardless 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.”
However, the statement also asserts on page 2 that “[d]ecisions about whether projects can initially proceed are State decisions.” This language could lead to the interpretation that companies may proceed with a project, regardless of the country’s compliance with its obligations to protect Indigenous rights, as long as they engage in a due diligence process that the statement fails to define with any degree of sufficient clarity and detail.
The failure of a State to conduct a proper FPIC process is a violation of fundamental Indigenous rights, and under such circumstances no project should proceed.
Denial of Retroactive Application of FPIC
According to the Position Statement, no retrospective application of an FPIC process is required in the case of projects where FPIC was never carried out, or was flawed in its execution. This is particularly problematic as many mines owned by ICMM members were opened without an adequate FPIC process, often by non-ICMM member companies. This provision allows ICMM members to freely inherit and profit from the legacies of neocolonialism and environmental racism set in motion by other actors—leaving no entity fully accountable for those harms.
And while the Position Statement calls on companies to provide for and engage in grievance mechanisms with affected communities, it does not require companies to participate in independent grievance mechanisms if they do not deem it necessary or appropriate. The Position Statement is of little-to-no value for rights holders without explicitly setting out how ICMM members’ compliance will be externally monitored, and what steps can be taken by affected Indigenous communities that are accessible and independent of the companies violating their rights.
Falling Behind in Respect for Human Rights
For the Position Statement to be of value it would have to go above and beyond already recognized and widely accepted international human rights norms regarding the self-determination of Indigenous Peoples. Instead, it contributes to existing confusion and creates further loopholes for companies to continue to trample on the rights of Indigenous Peoples around the world.
At a time when investors and regulators are calling for greater ambition in corporate human rights and environmental performance and demanding more transparent and reliable reporting, the ICMM continues to fall behind global trends in corporate respect for human rights.
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For further reading, please see First Peoples Worldwide’s in-depth, critical analysis of the Position Statement here.