Oxfam Australia and CAER: The right to decide

3. Australian mining company commitments
to Free, Prior and Informed Consent
This section examines the publicly stated positions of
Australian mining, oil and gas companies in relation to the
rights of indigenous peoples to participate in decisionmaking
that affects them, their lands and their natural
resources. In particular we assess whether companies
recognise the right of indigenous peoples to give or deny
their Free, Prior and Informed Consent (FPIC) for extractive
industry projects on their land. To do so, this report focuses
on company disclosures of their commitments to FPIC.
Internationally we have seen that large mining, oil and gas
companies are improving their policies and disclosure on
approaches towards indigenous peoples’ consent and
consultation. 29 This review considers the statements and
guidelines of 53 mining, oil and gas companies among
the top 200 listed companies on the Australian Securities
Exchange (ASX 200). The review focuses on publicly available
statements made by companies in relation to indigenous
peoples’ rights, FPIC and approaches to consultation and
engagement with indigenous peoples.
It should be noted that some companies may have
guidelines and policies that help their operations engage
with indigenous peoples but have not made these publicly
available. Ensuring policies are in the public domain is
important. This assists all stakeholders to understand the
standards the company has set for itself and the company
culture, strengthens due diligence (a company’s capacity to
identify, mitigate, prevent and remedy adverse impacts) and
enables impacted communities to engage more effectively
and hold companies to account. The UN Guiding Principles on
Business and Human Rights include company communication
as a key element of human rights due diligence — it is part
of showing that the company respects human rights. Further
research could review how companies are implementing their
own policies through case studies and outcomes analysis.
More detail on the methodology used for this study can be
found in Appendix 1.
3.1 Strategy and responsibility
While the issue of human rights has long been on the agenda
for many companies, indigenous peoples’ rights and the
specific right to FPIC have as yet had little public attention
in corporate disclosures by Australian extractive companies.
This section examines how Australian extractive companies
approach these issues in public policy statements. Clear
policy commitments provide the basis for a company’s
strategy for upholding human rights and ensuring the
respect and protection of indigenous rights where they
operate. Publishing these statements and approaches builds
the platform for transparent engagement and is a first step
towards allowing stakeholders to understand how companies
are managing these risks and opportunities.
There are various human rights instruments to assist
companies to meet their responsibilities. The rights of
indigenous peoples must be considered within a broader
human rights context. Companies may be guided by
international human rights instruments such as the UNDRIP or
ILO 169. Only two companies in this study, Rio Tinto and BHP
Billiton 30 (albeit qualified) have made a public commitment to
support these declarations.
We found that 14 of the 53 extractive companies on the
ASX 200 have published a policy commitment to upholding
human rights throughout their operations. This is a start, but
a somewhat surprisingly low number given the vulnerability
of the extractives sector to human rights violations. The
sector accounts for two thirds of the cases of alleged human
rights abuses reported by non-government organisations. 31
Companies in the extractive industries often operate in
countries where governance is weak. This increases the
need for responsible business conduct, robust policy and
effective implementation. A survey undertaken in 2012 using
the UN Guiding Principles on Business and Human Rights as
its foundation confirms that among the extractive companies
listed on the Forbes Global 2000 “nearly all companies had
in place some sort of CSR activity or sustainability policy…
[although] explicit human rights policies and human rights
due diligence processes were less common”. 32
Twelve of the 53 companies reviewed for this report have
published a policy commitment which generally refers to
the respect of indigenous peoples’ rights (see Figure 1).
These commitments are often disclosed in human rights or
community policies, or corporate codes of conduct. Alumina,
for example, specifies in their human rights policy to “respect
the economic, social and cultural rights of indigenous
peoples in all communities where we operate”. 33 Similarly,
highlighting specific attention to the rights of indigenous
peoples is Alacer Gold whose code of conduct states that
the company “shall strive to operate in a manner that
respects human rights and is consistent with the principles
articulated in the Universal Declaration of Human Rights.
This respect includes social, economic and cultural rights.
Special attention will be given to the rights of vulnerable and
indigenous peoples”. 34
29. Marianne Voss and Emily Greenspan, ‘Community consent index: Oil, gas and mining company public positions on Free, Prior, and Informed Consent (FPIC)’, Oxfam America
Research Backgrounder series, 2012.
30. Rio Tinto Limited, Community agreements guidance: www.riotinto.com/documents/Community_agreements_guidance_2012_2014.pdf;and BHP
Billiton Limited, Sustainability report supplementary information 2009, p21: www.bhpbilliton.com/home/investors/reports/Documents/2009/
sustainabilitySupplementaryInformation2009.pdf
31. www.ibanet.org/Article/Detail.aspx?ArticleUid=866A30C1-76FC-42E4-9C05-9E3237F82781
32. http://fairplayconsulting.wordpress.com/2013/02/14/making-the-case-for-human-rights-and-business-more-than-just-csr/
33. Alumina Limited, Human rights policy: www.aluminalimited.com/human-rights-policy/
34. Alacer Gold Corp., Code of conduct: www.alacergold.com/files/governance/Alacer_Code_of_Conduct_and_Ethics_Policy.pdf
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