Oxfam Australia and CAER: The right to decide

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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 10
Figure 1 — Public commitment to indigenous rights 41 12 number of public policy commitment to indigenous rights Figure 2 — Commitment to FPIC and consultation 47 6 policy commitment indigenous rights 10 2 commitment to ILO 169 or UNDRIP commitment to free prior and informed consulation 5 1 In total 18 companies commit to respecting human rights and/or indigenous peoples’ rights more specifically. The pressure to obtain consent drives companies to reach agreement with affected communities. If done well, in a participatory way that ensures agreement reflects the views of all in the community including women, this can assist in avoiding conflict, project delays and interruption. It can foster a strong basis of trust for ongoing good relationships with traditional owners and others in the community. It contributes to a stable operating environment, an increasingly important consideration for investors and shareholders. The first step for this is consultation with communities. This study finds that only six companies have made public commitments to ensure adequate consultation with indigenous peoples prior to a project (see Figure 2). With regard to public commitments to FPIC, the study confirms that Australian extractive companies are largely silent. Only one company (Rio Tinto) has a clear public commitment to FPIC. This commitment importantly and correctly identifies the formal right to consent as outlined in the UNDRIP and ILO 169. Six of the 53 companies have a public commitment to the principle of free prior and informed consultation. Consultation is not the same as consent, consent is more than a right to be consulted about projects that others will ultimately make decisions on. Yet a public commitment to the principle of free prior and informed consultation may be a good basis from which to take the next step and recognise indigenous peoples’ right to consent. While the majority of companies lack clear policy disclosure on what principles guide their engagement with indigenous peoples, we can see that companies have started to publicly acknowledge the special interests and relationships indigenous peoples have to the lands that mining companies wish to access for resources extraction. There is, however, a long way to go. number of public policy commitment to consultation and consent commitment to FPIC Totals Percentage Strategy and responsibility Yes No Yes No Policy commitment to human rights 14 39 26% 74% Policy commitment to indigenous rights 12 41 23% 77% Policy commitment to ILO 169 or UNDRIP 2 51 4% 96% Commitment to FPIC 1 52 2% 98% Commitment to the principle of free prior and informed consultation 6 47 11% 89% 11
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