While indigenous groups and their NGO representatives are increasingly vocal about individual mining projects, they are also active in trying to shape the industry as a whole
High in Guatemala’s western highlands, gold is flowing from an open-pit mine. Operated by Canadian mining firm Goldcorp, the project has been opposed by representatives of the local Mayan community.
Along with other local and international activist groups, Oxfam America is calling for operations at the mine to be suspended. The activists have the support of the Inter-American Human Rights Commission, an independent body of the Organisation of American States. And yet the mine continues.
The campaign forms part of Oxfam’s Right to Know, Right to Decide programme (see box).
More than three-fifths of the world’s poorest people live in countries rich in natural resources. Far too few ever get to have a say on how these resources are exploited, Oxfam and others argue.
Some indigenous groups are fundamentally opposed to any kind of resource extraction. That’s by no means a universal view, however.
Many agree with Ramsey Hart, programme co-ordinator at Mining Watch Canada, that placing a ban on mining is “not realistic” given society’s demand for raw materials.
Giving the go-ahead
Central to the arguments of indigenous groups and their representatives is not the fact, but the manner, in which mining projects go ahead.
Pivotal here is the issue of consent. Fiona Watson, field and research director at human rights group Survival International, maintains that her organisation isn’t against mining “per se”.
“It only asks if the community has been heard and whether consent has been given fairly with all the independent information to hand,” she says.
Accurate information is clearly a prerequisite to any fair negotiation, as Oxfam’s Right to Know demand indicates. Watson adds to that the recognition of the collective land rights of indigenous groups.
“Without that you simply can’t achieve FPIC,” she says, in reference to the widely used acronym for free, prior and informed consent, adopted by the International Finance Corporation.
Exactly how to obtain consent is not straightforward. Transparency, honesty, equity and fairness are all cited among the core principles espoused by NGOs.
So too is inclusivity. Get as many interest groups around the table as possible, says Emily Greenspan, extractive industries policy and advocacy adviser at Oxfam America.
Clearly, it is imperative for companies to respect traditional decision-making processes. At the same time, Greenspan insists, marginalised groups should not be overlooked.
“A lot of companies are realising [that] one of the ways to address this challenge of ‘who makes the decision?’ is to have an inclusive process,” says Greenspan.
She also advocates a consultation process that takes in wider interests than merely those facing immediate material impacts. Regional and national indigenous federations, for example, usually have extensive experience and insights into consultation processes.
“Consultation is a critical element of FPIC,” says Survival International’s Watson. “But in the end, it’s important that communities have the right to withhold their consent. If it’s just consultation then you lose that power.”
Should an indigenous community agree in principle to an extraction project, then the debate shifts to the terms on which that project might go ahead. Naturally, indigenous groups insist that they derive socio-economic benefits.
Alongside typical corporate social investments, such as education and health infrastructure, most mutual benefit agreements now include demands for revenue-sharing as well.
Industry ecosystem
While civil society groups have played a critical role at the level of individual projects, they have also set their sights on shaping the industry as a whole.
That starts with the norms that govern mining companies. In general, NGOs warmly welcomed the introduction of FPIC by the International Finance Corporation in January 2012.
Yet the fact that only 20 governments have so far recognised FPIC makes it easy for companies to “pay lip service”, according to Chris Albin-Lackey, senior researcher at Human Rights Watch.
“There’s a large gap between these aspirational documents and practice,” he argues.
The primary problem is not a lack of laws. The Philippines has a very progressive mining code, Albin-Lackey notes, yet abuses against indigenous rights abound.
Author of a new report on the mining industry in India, Albin-Lackey points to the ability of mining company Vedanta to “steam roll” through a mining project in Orissa despite local opposition.
In this specific case, the government is complicit; it’s the main investor in the controversial mine. In other cases, disputed projects get the go-ahead because of bad governance as much as government corruption.
Turning to India, Albin-Lackey says: “There are only a couple of dozen officials to monitor more than 26,000 mines across the whole country.” Other developing world markets are similarly under-resourced.
Sridar Ramamurthi, chair of the campaign coalition Mines, Minerals and People, agrees with the poor governance argument. “There is such a multiplicity of laws … From an indigenous perspective, the system just became too cumbersome to deal with.”
The tension between good laws and their poor execution is also echoed by Ramesh Gopalakrishnan, researcher with Amnesty International and author of the 2010 report Don’t Mine Us Out of Existence.
India’s Forest Act has special provision to protect the land rights of indigenous communities, Gopalakrishnan points out. “The problem is they have to file their claims before the same authorities who are alienating their lands in favour of the companies, so really they can’t get any justice.”
Despite the uphill struggle in achieving legal redress, indigenous groups have become increasingly sophisticated and aggressive in pursuing their claims through the courts.
Mining companies across the world are finding themselves bound up in litigation. US oil company Chevron provides an emblematic case. In 1994, a coalition of indigenous groups in the Ecuadorian Amazon filed a lawsuit for alleged environmental pollution. Nearly two decades later, the oil major was eventually ordered to pay $18bn in compensation.
There are other successful cases. In May 2012, Colombia’s constitutional court upheld a 2009 decision to suspend the Mande Norte mining project in Afro-Colombian and indigenous territories of northern Colombia. The decision rested on the failure of the developer, Muriel Mining, to properly consult the local population.
Such successes are the exception, however. Human rights activists such as Gopalakrishnan are consequently cautious about taking the litigation route. Not only can court cases become unwieldy and protracted, but they invariably favour those with deep pockets and time to play with: namely, companies.
Gopalakrishnan wants to see the focus shift to those financing mining projects. He says: “We need greater awareness on the part of investors that the money they are putting in should not be violating human rights.”
David Shirley, director at responsible business consultancy Corporate Integrity, believes this is beginning to happen. Investors are becoming increasingly sensitive to social risks associated with mining projects, he says. “And indigenous rights are a big part of that.”
He points to a “ramping up” of internal stakeholder management and risk assessment processes as evidence of companies listening to investor concerns.
Closer to companies’ minds, perhaps, is reputational pressure. The indigenous rights movement is nothing if not media savvy. Groups such as Amazon Watch and Cultural Survival have led the way in using communications technology to grab international press attention.
Role for responsible companies
Unwelcome though NGO campaigns are, a spokesman for a large mining multinational suggests campaign groups would be better redirecting their energies elsewhere.
Neither the UN Declaration on Indigenous Rights nor the IFC’s Performance Standards are binding on sovereign states. Lobbying national legislators to write FPIC into national laws would, the industry insider argues, oblige companies to follow suit.
Indeed, some large mining companies say they would welcome greater clarity from host governments with respect to FPIC. “As a developer, we can’t introduce projects without clear rules,” the spokesman says.
Arguably, genuinely responsible mining companies also have a role to play in pushing for better governance with respect to human rights, especially those relating to vulnerable indigenous groups.
There is evidence that legislators are willing to listen. In early 2012, for example, the Panamanian government re-established its mineral resource mining code. The code contains provisions to ensure local communities benefit from mining profits.
The new legislation also saw the cessation of concessions in Panama’s indigenous Ngöbe-Bugle territories. The move did not emerge from a vacuum. It took a week of violent protests, and extensive negotiations with government, for the law to pass.
All too often, the defence of indigenous rights comes only in the wake of vocal protest. That need not be the case. Early and honest engagement by companies can mitigate this threat of social conflict. And that is surely in the interest of industry and indigenous people alike.
Right to Know, Right to Decide
Oxfam America’s Right to Know, Right to Decide campaign challenges international extractive companies to respect a community’s right to decide if or how they want resource-led development to take place in their community, and their right to know about the impacts and benefits of these projects.
A community’s right to know: Companies must provide complete and timely information about how their work affects communities – environmentally, socially, and economically. They must also disclose how much they are paying governments for natural resources so that poor communities get a fair share of the profits.
A community’s right to decide: Companies must obtain the free, prior, and informed consent (FPIC) of communities affected by extractive operations. For indigenous people in particular, respect for FPIC is a critical means of protecting sacred lands and cultural identity.